The Prosecutor vs. Rodrigo Roa Duterte
Original: English No. ICC-01/21 OA Date: 18 July 2023
THE APPEALS CHAM BER
Before: Judge M arc Perrin de Brichambaut, Presiding
Judge Piotr Hofmański
Judge Luz del Carmen Ibáñez Carranza Judge Solomy Balungi Bossa Judge Gocha Lordkipanidze
SITUATION IN THE REPUBLIC OF THE PHILIPPINES
Public document
Judgment
on the appeal of the Republic of the Philippines against Pre- Trial Chamber I’s “Authorisation pursuant to article 18(2) of the Statute to resume the investigation”
No: ICC-01/21 OA 1/77
Judgment to be notified in accordance with regulation 31 of the Regulations of the Court to:
The Office of the Prosecutor
M r Karim A. A. Khan, Prosecutor M s Helen Brady
States Representatives
The Republic of the Philippines
The Office of Public Counsel for Victims
M s Paolina M assidda M s Ludovica Vetruccio
REGISTRY
Registrar
M r Osvaldo Zavala Giler
Victims Participation and Reparations Section
M r Philipp Ambach
Other
Pre-Trial Chamber I
No: ICC-01/21 OA 2/77
The Appeals Chamber of the International Criminal Court,
In the appeal of the Republic of the Philippines against the decision of Pre-Trial
Chamber I entitled “Authorisation pursuant to article 18(2) of the Statute to resume the
investigation” of 26 January 2023 (ICC-01/21-56-Red),
After deliberation,
By majority, Judge Perrin de Brichambaut and Judge Lordkipanidze dissenting,
Delivers the following
J U D G M E N T
The decision of Pre-Trial Chamber I entitled “Authorisation pursuant to
article 18(2) of the Statute to resume the investigat ion” of 26 January 2023
(ICC-01/21-56-Red) is confirmed.
REASONS
I. KEY FINDINGS
1 The burden of providing information relevant to a pre- trial chamber’s
determination under article 18(2) of the Statute remains on the State seeking deferral. The State concerned discharges this burden by providing information in support of its
initial request for deferral. The Prosecutor’s subsequent dut y to communicate that
information to the pre-trial chamber does not affect the allocation of the burden of proof, as the information remains that which the State initially provided. Therefore, the fact that it is the Prosecutor who seises a pre-trial chamber with an application under article 18(2) of the Statute does not shift the burden of proof to the Prosecutor. Under article 18(2) of the Statute, a State alleges that it is carrying out or has carried out relevant investigations. It is thus incumbent upon the State to establish the facts supporting this assertion. This is in line with the well-established principle of onus probandi incumbit actori .
2 For the purpose of admissibility challenges under article 18 of the Statute, a State is required to demonstrate an advancing process of domestic investigations and
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prosecutions of the same groups or categories of individuals in relation to the relevant criminality, including the patterns and forms of criminality, within a situation. The
domestic criminal proceedings must sufficiently mirror the scope of the Prosecuto r’s
intended investigation. A pre- trial chamber’ s assessment in this context is a largely
fact-driven inquiry.
II. INTRODUCTION
3 In this appeal of the Republic of the Philippines (hereinafter: “Philippines”)
against Pre- Trial Chamber I’s (hereinafter: “Pre - Trial Chamber”) decision of
26 January 2023, entitled “Authorisation pursuant to article 18(2) of the Statute to
resume the investigation ” (hereinafter: “Impugned Decision”), the Philippines raises
four grounds of appeal. Under the first ground of appeal, the Philippines alleges that the Pre-Trial Chamber erred in finding that the Court could exercise its jurisdiction on the basis that the Philippines was a State Party at the time of the alleged crimes, despite its subsequent withdrawal from the Statute. Under the second ground of appeal, the
Philippines alleges that the Pre-Trial Chamber erred in reversing the Prosecutor ’s
burden of proof in the context of article 18 proceedings. Under the third ground of appeal, the Philippines alleges that the Pre-Trial Chamber committed an error of law in
its application of “the legal standard applicable to a case, overstating the degree of
overlap required in the article 18 context ”, “ which invalidated its entire admissibility
assessment” . The Philippines also alleges a number of errors in the Pre- Trial Chamber’s
findings on specific domestic proceedings and on the degree of overlap with the Court’s
investigation. Lastly, under the fourth ground of appeal, the Philippines alleges that the
Pre- Trial Chamber’s finding that it was not satisfied that the Philippines is making “a
real or genuine effort” to carry out investigations and prosecutions is not based on any
actual assessment, and that the Pre-Trial Chamber failed to consider whether the situation is not of sufficient gravity.
1 4. The Appeals Chamber will address these four grounds of appeal in turn below.
1 See Section V below. No: ICC-01/21 OA 5/77
III. PROCEDURAL HISTORY
A. Proceedings before Pre-Trial Chamber I
5 On 24 M ay 2021, the Prosecutor requested that the Pre-Trial Chamber grant authorisation to commence an investigation into the Situation in the Philippines 2
( hereinafter: “A rticle 15 Request ” ).
6 On 15 September 2021, the Pre-Trial Chamber authorised the commencement of
the investigation into the Situation in the Philippines (hereinafter: “Philippines
Situation”), in relation to “crimes within the jurisdiction of the Court allegedly
committed on the territory of the Philippines between 1 November 2011 and 16 M arch
2019 in the context of the ‘ war on drugs ’ campaign” (hereinafter: “Article 15
3
Decision”) .
7 On 18 November 2021, the Prosecutor notified the Pre-Trial Chamber that on 10 November 2021 he had received a deferral request from the Philippines, pursuant to 4
article 18(2) of the Statute (hereinafter: “Deferral Request”), and that he had
temporarily suspended his investigative activities while he assessed the scope and effect 5 of the request.
8 Between 22 December 2021 and 31 M arch 2022, the Philippines provided the Prosecutor with various documents in support of the Deferral Request pursuant to the
Prosecutor’s request under rule 53 of the Rules of Procedure and Evidence (hereinafter:
“Rules”) .
2 Request for authorisation of an investigation pursuant to article 15(3) , 14 June 2021, ICC-01/21-7-Red (original secret ex parte version filed on 24 M ay 2021), with public Annexes 1, 4 and 5, and secret ex parte Annexes 2 and 3. 3
Decision on the Prosecutor’s request for authorisation of an investigation pursuant to Article 15(3) of
the Statute , ICC-01/21-12. 4
Annex A to the Notification of the Republic of the Philippines’ deferral request under article 18(2) ,
ICC-01/21-14-AnxA. 5
Notification of the Republic of the Philippines’ deferral request under article 18(2) , ICC-01/21-14. Prosecution’s request to resume the investigation into the situation in the Philippines pursuant to article 18(2) , 24 June 2022, ICC-01/21-46 (hereinafter: “ Prosecutor ’s Article 18(2) Request”),
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9 On 24 June 2022, the Prosecutor requested the Pre-Trial Chamber to authorise
the resumption of the investigation into the Philippines Situation, pursuant to
article 18(2) of the Statute.
10 On 14 July 2022, the Pre-Trial Chamber issued an order in which it, inter alia ,
invited the Philippines to submit any additional observations arising from the
Article 18(2) Request and authorised the Prosecutor to respond to any factual
8 arguments raised in the additional observations.
11 On 8 September 2022, the Philippines filed its observations on the Article 18(2)
9
Request (hereinafter: “ Philippines Article 18 Observations”) .
12 On 22 September 2022, the Prosecutor filed his response to the Philippines
10 Article 18 Observations.
13 On 26 January 2023, the Pre-Trial Chamber rendered the Impugned Decision,
authorising the Prosecutor to resume the investigation into the Philippines Situation,
11 pursuant to article 18(2) of the Statute.
14 On 27 January 2023, the Impugned Decision was notified to the Philippines.
B. Proceedings before the Appeals Chamber
15 On 3 February 2023, the Philippines filed its notice of appeal against the
12
Impugned Decision (he reinafter: “Notice of Appeal”) . In its notice, the Philippines
requested suspensive effect of the implementation of the Impugned Decision, pending
the Appeals Chamber’s final resolution of the appeal (hereinafter: “Request for
13
Suspensive Effect”).
Prosecutor ’s Article 18(2) Request .
8
Order inviting observations and victims’ views and concerns , ICC-01/21-47, p. 7.
9
Philippine Government’s Observation on the Office of the Prosecuto r’s Request , ICC-01/21-51, with
confidential ex parte Annexes A to T. 10
Prosecution’s Response to the Philippine Government’s Observations on the Prosecution’s Request to
Resume Investigations (ICC-01/21-51, filed 8 September 2022), ICC-01/21-54-Red (confidential version notified same day). 11 Authorisation pursuant to article 18(2) of the Statute to resume the investigation , ICC-01-21-56-Red (confidential version notified same day). 12
Philippine Government’s Notice of Appeal against the Pre - Trial Chamber I’s “Authorisation pursuant to article 18(2) of the Statute to resume the investigation” (ICC -01/21-56) with Application for
Suspensive Effect , ICC-01/21-57. 13 Notice of Appeal , para. 10.
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16 On 15 February 2023, the Philippines filed an application for an extension of time
14 to file its appeal brief.
17 On 16 February 2023, the Prosecutor filed his response to the Request for
15 Suspensive Effect, requesting that the request be dismissed.
18 On 17 February 2023, the Appeals Chamber granted the Philippines’ request for
16 an extension of the time limit to file its appeal brief to 13 M arch 2023.
19 On 24 February 2023, the Registry transmitted to the Appeals Chamber a request
from a group of victims to present views and concerns in relation to the Philippines’
17
appeal brief and its request for suspensive effect (hereinafter: “Victims’ Request”).
20 On the same day, the Office of Public Counsel for Victims (hereinafter: “OPCV”)
submitted a request to appear before the Appeals Chamber to represent the general
interests of victims in relation to the appeal of the Philippines (hereinafter: “OPCV
18
Request”).
21 On 2 M arch 2023, the Philippines submitted its response to the Victims’ Request
and the OPCV Request, requesting that both requests be dismissed. The Philippines
19 also requested that it be notified of all documents registered in these proceedings.
22 On 13 M arch 2023, the Philippines filed its appeal brief (hereinafter: “Appeal
20
Brief”).
23 On 21 M arch 2023, the Appeals Chamber issued a decision in which it, inter alia ,
instructed the Victims Participation and Reparations Section (hereinafter: “ VPRS ”) to
14
Philippine Government’s Application for Extension of Time to File the Appeal Brief , ICC-01/21-59.
15
Prosecution response to the Philippines Government’s Application for Suspensive Effect of the Pre- Trial Chamber I’s “ Authorisation pursuant to article 18(2) of the Statute to resume the investigation”
(ICC-01/21-57) , ICC-01/21-60. 16
Decision on the Republic of the Philippines’ application for extension of time to file the appeal brief ,
ICC-01/21-61. 17
Registry Transmission of an “Application to present victims’ views and concerns in the appeal of the Republic of the Philippines against the Pre- Trial Chamber I’s ‘Authorisation pursuant to article 18(2) of the Statute to resume the investigation’” , 24 February 2023, ICC-01/21-62-Red (confidential ex parte
version notified same day), with confidential ex parte Annexes I and II, and public Annex III . 18 Request to appear before the Appeals Chamber pursuant to regulation 81(4)(b) of the Regulations of the Court , 24 February 2023, ICC-01/21-63. 19 Response to requests to participate before the Appeals Chamber , ICC-01/21-64. 20
Philippine Government’s Appeal Brief against “Authorisation pursuant to article 18(2) of the Statute to resume the inves tigation” , ICC-01/21-65.
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collect and transmit to the Appeals Chamber representations from any interested
victims and victim groups and submit a report thereon by 22 M ay 2023. The Appeals
Chamber also authorised the OPCV to submit written observations on the Philippines’
Appeal Brief in relation to the general interests of victims by 18 April 2023. In the same
decision, the Appeals Chamber directed the Registry to notify the Philippines regarding
all public and confidential filings in the present appellate proceedings with the
21 exception of any filings classified as confidential ex parte excluding the Philippines.
24 On 27 M arch 2023, the Appeals Chamber rejected the Request for Suspensive
22 Effect.
25 On 4 April 2023, the Prosecutor filed his response to the Philippines’ Appeal
23
Brief (hereinafter : “Prosecutor’s Response ”).
26 On 11 April 2023, the Philippines filed a request for leave to reply to the
24
Prosecutor ’s Response in respect to five issues. The Philippines also requested to file
a consolidated reply to the Prosecutor ’s Response and the forthcoming OPCV
25 observations should this be necessary.
27 On 14 April 2023, the Prosecutor filed his response to the Philippines’ Request
for Leave to Reply, deferring to the Appeals Chamber’s discretion under
regulation 24(5) of the Regulations of the Court (hereinafter: “Regulations”) to grant
26
the Phili ppines’ request.
28 On 18 April 2023, the OPCV submitted observations on the general interests of
the victims in relation to the appeal brought by the Philippines (hereinafter: “OPCV
27
Observations”) .
21
Decision on requests for victims’ involvement and access to filings , ICC-01/21-66.
22
Decision on request for suspensive effect of Pre- Trial Chamber I’s “Authorisation pursuant to article 18(2) of the Statute to resume the investigation” of 26 January 2023 (ICC -01/21-56) , ICC-
01/21-67. 23
Prosecution’s response to the Philippine Government’s Appeal Brief against “Authorisation pursuant to article 18(2) of the Statute to resume the investigation” (ICC -01/21-65 OA) , ICC-01/21-68.
24 Request for Leave to Reply , ICC-01/21-69. 25 See Request for Leave to Reply , fn. 15. 26
Prosecution’s Response to the Philippines Government's “Request for Leave to Reply ” (ICC-01/21-69
OA) , ICC-01/21-70, para. 5. 27 Observations on behalf of victims on the Philippines Government Appeal against the Decision authorising the resumption of the investigation , ICC-01/21-71.
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29 On 2 M ay 2023, the Appeals Chamber issued a decision in which it authorised
the Philippines to reply with respect to two issues identified in the Request for Leave
28
to Reply. In the same decision, the Appeals Chamber dismissed the Philippines’
request to file a consolidated reply to the Prosecutor’s Response and the OPCV
29 Observations.
30 On 16 M ay 2023, the Philippines submitted its reply to the Prosecutor ’s Response
30
(hereinafter: “Reply to the Prosecutor’s Response”) .
31 On 22 M ay 2023, the VPRS transmitted to the Appeals Chamber five
31
representations received from victims and a report on victims’ representations ,
32
pursuant to the Appeals Chamber’s directions.
IV. PRELIM INARY ISSUE
32 The Appeals Chamber notes that the Appeal Brief is 51 pages long. The
Philippines submits that it filed its appeal “ in accordance with regulations 38(2)(b) and
33
64(2) of the Regulations ” . The Philippines relies on a ruling in which the Appeals
Chamber found that regulation 38(2)(c) of the Regulations, setting a 60-page limit for
“[c]hallenges to the admissibility or jurisdiction of the Court under article 19,
34
paragraph 2 ”, applies to the related appeal briefs as well.
28 Decision on the Republic of the Philippines’ request for leave to reply to the “Prosecution’s response to the Philippine Government’s Appeal Brief against ‘Authorisation pursuant to article 18(2) of the Statute to resume the investigation’ (ICC -01/21-65 OA) , ICC-01/21-72 (hereinafter: “Decision on Philippines’ Request for Leave to Reply”) . 29 Decision on Philippines’ Request for Leave to Reply , para. 11. 30 Philippine Government’s Reply to “Prosecution’s response to the Philippine Government’s Appeal Brief against “Authorisation pursuant to article 18(2) of the Statute to resume the investigat ion”” , ICC- 01/21-73. 31 Registry Transmission of Victims’ Representations , ICC-01/21-74, with 5 confidential ex parte Annexes. 32 Registry Report on Article 18(2) Victims’ Representations in Appeals Proceedings , ICC-01/21-75, with confidential and public redacted Annex I and confidential ex parte Annexes II and III. 33 Appeal Brief , fn. 17. 34 The Prosecutor v. Thomas Lubanga Dyilo , Reasons for the Appeals Chamber’s Decision of 16 November 2006 on the “Prosecution’s Request for an Extension of the Page Limit” , 17 November 2006, ICC-01/04-01/06-717 (hereinafter: “ Lubanga Decision on Request for Extension of Page Limit”) , para. 9.
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33 The Appeals Chamber notes that this ruling only applies to appeals against 35 decisions concerning challenges under article 19(2) of the Statute. The Appeals Chamber is nonetheless satisfied that the Appeal Brief does not exceed the applicable page limit. It is appropriate to apply the specific page limit of 60 pages, set in
regulation 38(2)(b) of the Regulations for “ [t]he application of the Prosecutor for
authorisation of the investigation under article 18, paragraph 2 ”. Indeed, the rationale
for a specific page limit for an article 18(2) application equally applies to an appeal
brief against a pre- trial chamber’s decision on such an application. As an article 18(2)
application, such an appeal brief will normally set out complex arguments on complementarity and rely on the information regarding domestic proceedings,
previously provided by the State seeking a deferral of the Prosecutor’s investigation.
Therefore, the Appeals Chamber accepts the Appeal Brief as having been filed in accordance with the applicable page limit.
V. M ERITS
A. Standard of appellate review
34 In the present appeal, the Philippines alleges errors of law and fact.
35 Regarding errors of law, the Appeals Chamber has previously held that it:
will not defer to the relevant Chamber’s interpretation of the law, but will
arrive at its own conclusions as to the appropriate law and determine whether 36 or not the first instance Chamber misinterpreted the law.
35 Lubanga Decision on Request for Extension of Page Limit , para. 8. See also The Prosecutor v. Laurent Koudou Gbagbo , Decision on requests related to page limits and reclassification of documents , 16 October 2012, ICC-02/11-01/11-266, paras 11, 13. 36
The Prosecutor v. Ali Muhammad Ali Abd-Al- Rahman (“Ali Kushayb”) , Judgment on the appeal of
M r Ali M uhammad Ali Abd-Al-Rahman against the decision of Trial Chamber I of 17 February 2023
entitled “Decision on the admissibility of video (DAR -OTP-0216-0119) and records of telephone calls (DAR-OTP-0216-0127, DAR-OTP-0216- 0128)” , 28 June 2023, ICC-02/05-01/20-982 (OA12) (hereinafter: “ Abd-Al-Rahman OA12 Judgment”), para. 20, referring to The Prosecutor v. Maxime
Jeoffroy Eli Mokom Gawaka , Judgment on the appeal of M axime Jeoffroy Eli M okom Gawaka against
the decision of Pre- Trial Chamber II of 19 August 2022 entitled “Decision on legal representation further to the Appeals Chamber’s judgment of 19 July 2022” , 19 December 2022, ICC-01/14-01/22-124-Red (OA3) (hereinafter: “ Mokom OA3 Judgment”), para. 19 ; The Prosecutor v. Bosco Ntaganda , Judgment on the appeal of Mr Bosco Ntaganda against the “Decision on the Defence’ s challenge to the jurisdiction of the Court in respect of Counts 6 and 9” , 22 M arch 2016, ICC-01/04-02/06-1225 (OA2), para. 33; The
Prosecutor v. William Samoei Ruto and Joshua Arap Sang , Judgment on the appeals of M r W illiam Samoei Ruto and M r Joshua Arap Sang against the decision of Trial Chamber V(A) of 19 August 2015
entitled “Decision on Prosecution Request for Admission of Prior Recorded Testimony” , 12 February
No: ICC-01/21 OA 11/77
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36 If the relevant chamber committed such an error, the Appeals Chamber will only
37 intervene if the error materially affected the decision impugned on appeal. A decision
is “materially affected by an error of law” if the chamber “would have rendered a
[decision] that is substantially different from the decision that was affected by the error,
38
if it had not made the error”.
37 As to errors of fact,
the Appeals Chamber will determine whether a chamber’s factual findings
were reasonable in the particular circumstances of the case. The Appeals
Chamber will not disturb a trial chamber ’s factual findings only because it
would have come to a different conclusion. W hen considering alleged factual errors, the Appeals Chamber will allow the deference considered necessary and appropriate to the factual findings of a chamber. However, the Appeals Chamber may interfere where it is unable to discern objectively how a
2016, ICC-01/09-01/11-2024 (OA10), para. 20; The Prosecutor v. Uhuru Muigai Kenyatta , Judgment on the Prosecutor’s appeal against Trial Chamber V(B)’s “Decision on Prosecution’s application for a finding of non- compliance under Article 87(7) of the Statute” , 19 August 2015, ICC-01/09-02/11-1032 (OA5), para. 23; The Prosecutor v. Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud , Judgment on the appeal of M r Al Hassan against the decision of Pre- Trial Chamber I entitled ‘Décision relative à l’exception d’irrecevabilité pour insuffisance de gravité de l’affaire soulevée par la défense’ , 19 February 2020, ICC-01/12-01/18-601- Red (OA) (hereinafter: “ Al Hassan OA J udgment”), para. 38. 37 Abd-Al-Rahman OA12 Judgment , para. 21, referring to Mokom OA3 Judgment , para. 20; Al Hassan OA Judgment , para. 38; The Prosecutor v. Simone Gbagbo, Judgment on the appeal of Côte d’Ivoire against the decision of Pre-Trial Chambe r I of 11 December 2014 entitled “Decision on Côte d’Ivoire’s challenge to the admissibility of the case against Simone Gbagbo” , 27 M ay 2015, ICC-02/11-01/12-75- Red (OA) (hereinafter: “ Simone Gbagbo OA Judgment”), para. 40. See also The Prosecutor v. Ali Muhammad Ali Abd-Al- Rahman (“Ali Kushayb”) , Judgment on the appeal of M r Abd-Al-Rahman against the Pre- Trial Chamber II’s “Decision on the Defence ‘ Exception d’incompétence ’ (ICC -02/05- 01/20- 302)” , 1 November 2021, ICC-02/05-01/20- 503 (OA8) (hereinafter: “ Abd-Al-Rahman OA8 Judgment”), para. 12; The Prosecutor v. Dominic Ongwen, Judgment on the appeal of M r Dominic Ongwen against Trial Chamber IX’s ‘Decision on Defence Motions Alleging Defects in the Confirmation Decision’ , 17 July 2019, ICC-02/04-01/15- 1562 (OA4) (hereinafter: “ Ongwen OA4 Judgment”), para. 45. 38 Abd-Al-Rahman OA12 Judgment , para. 21, referring to The Prosecutor v. Bosco Ntaganda , Judgment on the appeals against the decision of Trial Chamber VI of 8 March 2021 entitled “Reparations Order” , 12 September 2022, ICC-01/04-02/06-2782 (A4- A5) (hereinafter: “ Ntaganda A4- A5 Judgment”), para. 29; Mokom OA3 Judgment , para. 20; Al Hassan OA Judgment , para. 38; Simone Gbagbo OA Judgment , para. 41. See also Abd-Al-Rahman OA8 Judgment , para. 12; The Prosecutor v. Al Hassan Ag Abdoul Aziz Ag Mohamed Ag Mahmoud , Judgment on the appeal of M r Al Hassan against the decision of Trial Chamber X entitled ‘Decision on applic ation for notice of possibility of variation of legal characterisation pursuant to Regulation 55(2) of the Regulations of the Court’ , 1 July 2021, ICC-01/12- 01/18-1562-Red (OA3), para. 18; Ongwen OA4 Judgment , para. 45. See also Situation in the Islamic Republic of Afghanistan , Judgment on the Prosecutor’s appeal against the decision of Pre -Trial Chamber II entitled “Decision pursuant to article 18(2) of the Statute authorising the Prosecution to resume investigation” , 4 April 2023, ICC-02/17-218 (OA5), para. 23.
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chamber’s conclusion could have reasonably been reached from the evidence
39 on the record.
38 The appellant is obliged to set out all the alleged errors in the appeal brief and
“indic ate, with sufficient precision, how [the] alleged error would have materially
40
affected the impugned decision”.
39 The above standard of review will guide the analysis of the Appeals Chamber.
B. Ground of appeal 1: W hether the Court can exercise its
jurisdicti on despite the Philippines’ withdrawal from the Statute
1 Relevant part of the Impugned Decision
40 The Pre-Trial Chamber noted that the Philippines, in its Article 18 Observations,
made several general challenges to the Court’s jurisdiction, submitting that the Court
has no jurisdiction over the Philippines Situation pursuant to the principle of 41 non-intervention and sovereign equality as enshrined in the United Nations Charter.
41 The Pre-Trial Chamber stated at paragraph 26 of the Impugned Decision:
T he Philippines’ arguments that the Court should not investigate in the
Philippines due to the principle of non-intervention are misplaced, as they
misappreciate the Court’s complementarity system. The Court’s jurisdiction
and mandate is exercised in accordance with the provisions of the Statute, an international treaty to which the Philippines was a party at the time of the alleged crimes for which the investigation was authorised. By ratifying the Statute, the Philippines explicitly accepted the jurisdiction of the Court, within the limits mandated by the treaty, and pursuant to how the system of complementarity functions. As part of the procedure laid down in article 18(2) of the Statute, the Chamber may authorise the Prosecution to
resume an investigation , notwithstanding a State’s request to defer the
39 Abd-Al-Rahman OA12 Judgment , para. 22, referring to Mokom OA3 Judgment , para. 21. See also Ntaganda A4-A5 Judgment , para. 30; The Prosecutor v. Laurent Gbagbo and Charles Blé Goudé ,
Judgment in the appeal of the Prosecutor against Trial Chamber I’s decision on the no case to answer
motions , 31 M arch 2021, ICC-02/11-01/15-1400 (A), para. 68; The Prosecutor v. Bosco Ntaganda, Judgment on the appeal of M r Bosco Ntaganda against the decision of Trial Chamber VI of 7 November
2019 entitled ‘Sentencing judgment’ , 30 M arch 2021, ICC-01/04-02/06-2667-Red (A3), paras 27-29;
The Prosecutor v. Laurent Gbagbo and Charles Blé Goudé , Judgment on the appeal of M r Laurent
Gbagbo against the decision of Trial Chamber I of 10 March 2017 entitled “Decision on Mr Gbagbo’s Detention” , 19 July 2017, ICC-02/11-01/15-992-Red (OA10), para. 16.
40 Abd-Al-Rahman OA12 Judgment , para. 23, referring to Abd-Al-Rahman OA8 Judgment , para. 14; The
Prosecutor v. Joseph Kony et al. , Judgment on the appeal of the Defence against the “Decision on the adm issibility of the case under article 19(1) of the Statute” of 10 March 2009 , 16 September 2009, ICC-
02/04-01/05-408 (OA3), para. 48. 41 Impugned Decision , paras 18-19.
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investigation. These provisions and the ensuing obligations remain 42 applicable, notwithstanding the Philippines withdrawal from the Statute.
2 Summary of the submissions 42. Under ground of appeal 1, the Philippines submits that the Pre-Trial Chamber erred in finding that the Court could exercise its jurisdiction on the basis that the Philippines was a State Party at the time of the alleged crimes, despite its subsequent 43 withdrawal from the Statute.
43 M ore specifically, the Philippines submits that the Pre- Trial Chamber, “in order
to make an admissibility determination”, “effectively […] made a positive finding of
jurisdiction based on the [Philippines’] status, as a State Party to the Rome Statute, at
the time of the alleged crimes”, and in doing so, “considered the effect of the
[Philippines’] withdrawal as a State Party to the Rome Statute and entered further
findings concerning the [Philippines’] ‘ensuing obligations’, which “are not obiter and
44
are located in s ection B entitled ‘Determination by the Chamber’”. The Philippines
argues that it was, therefore, entitled to raise all errors which were inextricably linked 45 to the admissibility ruling in accordance with articles 18(4) and 82(1)(a) of the Statute.
44 Lastly, the Philippines submits that this ground of appeal is “not raised as a
challenge to the jurisdiction of the Court in the context of article 19 proceedings, which 46
explicitly concern the jurisdiction of the Court in relation to a concrete case”. In its
view the first ground of appeal, therefore, “does not require an assessment as to whether
47
it qualifies as a jurisdictional challenge under article 82(1)(a)”.
45 In his response to the Appeal Brief, the Prosecutor requests that the Appeals Chamber dismiss the first ground of appeal on the basis that (i) in some aspects, it 48 challenges the Article 15 Decision, rather than the Impugned Decision, (ii) the
Pre- Trial Chamber’s restatement of jurisdiction was “unrelated to the Chamber’s
42 Impugned Decision , para. 26 (footnotes omitted). 43 Appeal Brief , paras 26-62. It is noted that the Philippines announced its withdrawal from the Statute on 17 M arch 2018 (effective from 17 M arch 2019) and the Prosecutor filed the Article 15 Request on 24 M ay 2021 (a public redacted version filed on 14 June 2021). 44 Appeal Brief , para. 28. 45 Appeal Brief , para. 29. 46 Appeal Brief , para. 30. 47 Appeal Brief , para. 30. 48
Prosecutor ’s Response , para. 31.
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49
complement arity findings”, nor was it an essential component of those findings, and
(iii) a State may only challenge the Court’s jurisdiction with respect to a case, under
50 article 19(2) of the Statute. Regarding the merits of ground of appeal 1, the Prosecutor
submits that the Pre-Trial Chamber correctly found that the Court can exercise its
jurisdiction over the Philippines Situation, as the Philippines was a State Party at the
51 time of the alleged crimes.
46 The OPCV, in its Observations, shares the Prosecutor’s view that the Philippines’
52 arguments lie outside the scope of article 18(2) proceedings. It also submits that the
Pre- Trial Chamber did not err in finding that the Court’s jurisdiction is not a ffected by
53
the Philippines’ withdrawal from the Statute.
47 The Victims argue that the Philippines already had an opportunity to raise the
issue of jurisdiction in its Article 18 Observations and that it may not raise in its appeal
54 arguments against the Article 15 Decision. The Victims submit that the Impugned
55
Decision does not contain a ruling on the Court’s jurisdiction.
3 Determination by the Appeals Chamber
48 Pursuant to article 18(4) of the Statute, “the State concerned or the Prosecutor
may appeal to the Appeals Chamber against a ruling of the Pre-Trial Chamber, in
accordance with article 82” of the Statute. According to article 82(1)(a) of the Statute,
either party may appeal a decision with respect to jurisdiction or admissibility.
49 The Appeals Chamber recalls that the proceedings on appeal “ are corrective in
nature, conducted with the purpose of reviewing the proceedings before the [first
56
instance] [c] hamber” . Therefore, “[a]s a corrective measure, the scope of proceedings
49
Prosecutor ’s Response , para. 36; see also para. 10.
50
Prosecutor ’s Response , para. 37.
51
Prosecutor ’s Response , paras 12-35.
52 OPCV Observations , para. 26. 53 OPCV Observations , paras 27-34. 54
Annex 4 to the Registry Transmission of Victims’ Representations , ICC-01/21-74-Conf-Exp-Anx4 (hereinafter: “Victims Representations, Annex 4”) , p. 9.
55
Annex 5 to the Registry Transmission of Victims’ Representations , ICC-01/21-74-Conf-Exp-Anx5,
paras 8-12. 56
The Situation in the Republic of Kenya , Decision on the “Filing of Updated Investigation Report by the Government of Kenya in the Appeal against the Pre- Trial Chamber’s Decision on Admissibility” ,
28 July 2011, ICC-01/09-01/11- 234 (hereinafter: “ Kenya OA Decision”), para. 12.
No: ICC-01/21 OA 15/77
on appeal is determined by the scope of the relevant proceedings before [that] 57 [c] hamber”.
50 The first ground of the Philippines’ appeal is directed against paragraph 26 of the Impugned Decision, which a ddresses the “Philippines’ arguments that the Court should not investigate in the Philippines due to the principle of non-intervention ” and notes that
[t] he Court’s jurisdiction and mandate is exercised in accordance with the provisions of the Statute, an international treaty to which the Philippines was a party at the time of the alleged crimes for which the investigation was authorised. […] These provisions and the ensuing obligations remain 58 applicable, notwithstanding the Philippines withdrawal from the Statute.
51 The Appeals Chamber first notes the manner in which the Philippines has raised the alleged errors in the Impugned Decision. In particular, the Philippines submits that the first ground of appeal is raised “in accordance with article 18(4) and article 82(1)(a) of the Statute” as a challenge to errors in the Pre - Trial Chamber’s findings concerning the effect of the Philippines ’ withdrawal on t he Court’s jurisdictio n, which are 59 “inextricably linked” to the Pre - Trial Chamber’s admissibility ruling . At the same time , the Philippines submits that this ground of appeal, which “is not raised as a challenge to the jurisdiction of the Court in the co ntext of article 19 proceedings”, “does not require an assessment as to whether it qualifies as a jurisdictional challenge under 60 article 82(1)(a)” .
52 The Appeals Chamber, by majority, Judge Perrin de Brichambaut and Judge Lordkipanidze dissenting, finds that the Philippines sets out the alleged errors in a manner that renders unclear both the precise nature of its challenge as well as the legal basis pursuant to which the challenge is made. The Appeals Chamber recalls in this context that, in accordance with regulation 64(1)(d) of the Regulations, an appellant is required to state “[t]he specific provision of the Statute pursuant to which the appeal is filed” .
57 Kenya OA Decision , para. 13. See also Simone Gbagbo OA Judgment , paras 43-44. 58 Impugned Decision , para. 26 (footnotes omitted), referring to article 127 of the Statute and Article 15 Decision , paras 110-111. 59 Appeal Brief , para. 29. 60 Appeal Brief , para. 30. No: ICC-01/21 OA 16/77
Pursuant to Pre-Trial Chamber I’s instruction, dated 12 March 2025, this document is transferred from the situation record ICC-01/12 into the case record ICC-01/21-01/25
53 This notwithstanding, the Appeals Chamber understands that, in essence, the
Philippin es’ submissions under ground of appeal 1 constitute a challenge to the
jurisdiction of the Court.
54 At the outset, the Appeals Chamber, by majority, Judge Perrin de Brichambaut
and Judge Lordkipanidze dissenting, observes that the Impugned Decision does not
constitute a “decision with respect to jurisdiction” within the meaning of
article 82(1)(a) of the Statute. C ontrary to the Philippines’ assertions, the findings of
the Pre-Trial Chamber, in particular those concerning the Co urt’s jurisdiction over the
present situation and the effects of the Philippines’ withdrawal on the Court’s
61 62
jurisdiction, are not “a positive finding of jurisdiction” that is “inextricably linked”
to its admissibility ruling. Rather, the findings the Pre-Trial Chamber made in the
Impugned Decision were meant to clarify the procedure to be followed under
article 18(2) of the Statute and, crucially, they simply recalled those the Pre-Trial
63
Chamber had previously made in its decision pursuant to article 15(4) of the Statute.
In other words, in the Impugned Decision, the Pre-Trial Chamber simply reaffirmed
64
that it had jurisdiction, as it had established in its Article 15 Decision. In this regard,
the Appeals Chamber considers it indeed important to note the context in which the
61 Impugned Decision , para. 26 (footnotes omitted), referring to article 127 of the Statute and Article 15 Decision , paras 110-111. 62 Appeal Brief , para. 29. 63 It is further noted that the relevant statements in paragraph 26 of the Impugned Decision were made in
the section of “Preliminary Issues” and not in the section of “Issues material to the article 18(2) proceedings”.
64 See in particular, Article 15 Decision , paras 110-111 (footnotes omitted): 110. The Chamber notes that the Philippines deposited its instrument of ratification of the Rome Statute on 30 August 2011, and the Statute entered into force for the Philippines on 1 November 2011, in accordance with Article 126(1) of the Statute. On 17 M arch 2018, the Government of the Philippines deposited a written notification of withdrawal from the Statute with the UN Secretary-General, and in accordance with Article 127 of the Statute, the withdrawal took effect on 17 M arch 2019. W hile the relevant crimes appear to have continued after this date, the Chamber notes that alleged crimes identified in the Article 15(3) Request are limited to those during the period when the Philippines was a State Party to the Statute and was bound by its provisions.
111 . While the Philippines’ withdrawal from the Statute took effect on 17 March 2019, the Court
retains jurisdiction with respect to alleged crimes that occurred on the territory of the Philippines while it was a State Party, from 1 November 2011 up to and including 16 M arch 2019. This is in line with the law of treaties, which provides that withdrawal from a treaty does not affect any right, obligation or legal situation created through the execution of the treaty prior to its termination. M oreover, in the
Burundi situation, Pre- Trial Chamber III held that a State Party’s withdrawal from the Rome Statute does not affect the Court’s exercise of jurisdiction over crimes committed prior to the effective date of
the withdrawal. This conclusion was recently confirmed by Pre-Trial Chamber II in the Abd-Al-
Rahman case. The Court’s exercise of such jurisdiction is not subject to any time limit, particularly since the preliminary examination here commenced prior to the Philippines’ withdrawal.
No: ICC-01/21 OA 17/77
findings of the Pre-Trial Chamber, which the Philippines appears to challenge now, were made.
55 Thus, while the Pre-Trial Chamber addressed the issue of jurisdiction in general terms, the Impugned Decision is not a decision on jurisdiction. Furthermore, while the
Philippines raised general submissions on the Court’s jurisdiction in its Article 18
Observations – in relation to the alleged lack of subject-matter jurisdiction of the Court,
the lack of gravity of constituent crimes, or a general argument on the sovereignty of 1
States – it failed to raise submissions on the effect of its withdrawal from the Statute
on the jurisdiction of the Court. Indeed, the issue of the impact of the Philippines’
withdrawal from the Statute on the Court’s jurisdiction was neither properly raised nor
adequately ventilated before the Pre-Trial Chamber. Also, as noted above, the issue was not suitably raised on appeal. The Appeals Chamber, by majority, Judge Perrin de Brichambaut and Judge Lordkipanidze dissenting, considers that, without prejudice to the manner in which such a challenge might have been raised, the Philippines should
have raised the question of the effect of its withdrawal on the Court’s jurisdiction before
the Pre-Trial Chamber in order for all parties and participants to make observations on the issue, and for the Pre-Trial Chamber to make a fully informed decision thereon.
56 Furthermore, the Appeals Chamber, by majority, Judge Perrin de Brichambaut and Judge Lordkipanidze dissenting, is of the view that, by requesting deferral and by making submissions in the context of article 18 proceedings, the Philippines implicitly
accepted the Court’s jurisdiction. In the same vein, the Pre-Trial Chamber proceeded
to address the question of admissibility on the basis that it had jurisdiction, as it had 65 established in its Article 15 Decision.
57 In conclusion, since the Impugned Decision does not constitute a decision with respect to jurisdiction and in light of the fact that the issue of the effect of the
Philippines’ withdrawal from the Statute on the Court’s jurisdiction was neither
properly raised and discussed before the Pre-Trial Chamber nor adequately raised on
appeal, the Appeals Chamber cannot entertain the Philippines ’ appeal on this point.
65 Indeed, questions of admissibility only arise if the Court has jurisdiction. See also rule 58(4) of the
Rules, which stipulates that “[t]he Court shall rule on any challenge or question of jurisdiction first and then on any challenge or question of admiss ibility”.
No: ICC-01/21 OA 18/77
58 The Appeals Chamber, by majority, Judge Perrin de Brichambaut and Judge
Lordkipanidze dissenting, therefore dismisses the first ground of the Philippines’
appeal.
59 For reasons set out in their dissenting opinion, Judge Perrin de Brichambaut and Judge Lordkipanidze are of the view that the Appeals Chamber should consider the merits of ground of appeal 1. In their view, the Philippines properly raised jurisdictional issues on appeal, because: (i) a finding on jurisdiction is in fact made in the Impugned Decision; (ii) the Philippines alleges an error in relation to that finding; and (iii) this is the first opportunity for the Philippines to raise the issue of jurisdiction, as until recently, the proceedings were conducted in the absence of any input from the Philippines.
60 As will be set out in more detail in their dissenting opinion, Judge Perrin de Brichambaut and Judge Lordkipanidze would have found that the Court cannot exercise its jurisdiction with respect to the Philippines Situation. In their view, the fact that the
Philippines’ withdrawal from the Statu te became effective before the Prosecutor
requested authorisation to commence his investigation is critical. Judge Perrin de
Brichambaut and Judge Lordkipanidze consider that an investigation “ has [been]
initiated ” within the meaning of article 13(c) of the Statute only once the Prosecutor
has requested, and a pre-trial chamber has granted, authorisation to commence an investigation.
61 As a consequence of their finding on the Court’s jurisdiction, Judge Perrin de
Brichambaut and Judge Lordkipanidze do not find it appropriate to examine grounds of appeal 2 to 4, which raise arguments concerning complementarity. Indeed, if the Court cannot exercise its jurisdiction over a situation, matters of complementarity become moot. Judge Perrin de Brichambaut and Judge Lordkipanidze will therefore not join the majority of the Appeals Chamber in their discussion of grounds of appeal 2 to 4.
62 As a result, the following grounds of appeal are only considered by Judge
Hofmański, Judge Ibáñez Carranza and Judge Balungi Bossa (hereinafter: “Majority”).
No: ICC-01/21 OA 19/77
C. Ground of appeal 2: Alleged error of reversing the burden of proof
63 Under ground of appeal 2, the Philippines alleges that the Pre-Trial Chamber
erred in reversing the Prosecutor’s burden of proof in the context of article 18
66 proceedings.
1 Relevant part of the Impugned Decision
64 The Pre-Trial Chamber, in the Impugned Decision, recalled that “for the purpose
of admissibility challenges pursuant to article 18(2) of the Statute, the onus is on the 67
State to show that investigations or prosecutions are taking place or have taken place ” .
2 Summary of the submissions 65. The Philippines submits that the Pre-Trial Chamber erred in reversing the 68
Prosecutor ’s burden of proof in the context of article 18 proc eedings. First, the
Philippines argues that the moving party bears the burden of proof, and in the context 69 of article 18 proceedings, the State is not the party seeking to change the status quo ; rather, the Prosecutor is seeking a preliminary ruling regarding admissibility to end his 70 continued deferral, after having received a deferral request from a State. Secondly, while there is jurisprudence pursuant to article 19(2) of the Statute indicating that the State challenging admissibility bears the burden of proof, the Philippines argues that it is incorrect to compare proceedings under article 18 with those under article 19 of the 71 Statute.
66 In his response to the Appeal Brief, the Prosecutor submits that, as the State requesting deferral, the Philippines bears the burden of proof under article 18(2) of the Statute. He argues that the State remains the moving party in article 18 proceedings, as 72
the Prosecutor’s deferral to the State’s investigation is not automatic. The Prosecutor
contends that he decides whether to seise the Pre-Trial Chamber of the matter and, when
he does, he “merely transfers the authority provisionally vested in him to assess the
66 Appeal Brief , paras 63-75. 67 Impugned Decision , para. 14 (footnotes omitted). 68 Appeal Brief , para. 63. 69 Appeal Brief , paras 67-69. 70 Appeal Brief , paras 72-73. 71 Appeal Brief , para. 66. 72
Prosecutor ’s Response , paras 53-54, 56.
No: ICC-01/21 OA 20/77
73
State’s deferral request”. The Prosecutor avers that it then “ remains for the State
74
requesti ng the deferral to satisfy the Chamber that this is justified”. The Prosecutor
further submits that, in any event, the Impugned Decision would not have been 75 materially affected even if the Prosecutor had borne the burden of proof.
67 In particular, the Prosecutor argues that (i) the terms of article 18(2) of the Statute 76 are strongly suggestive that the burden of proof should fall on the State; (ii) the analysis required by article 17(1)(a) to (c) of the Statute strongly favours the allocation of the burden of proof to the State requesting deferral, which is consistent with rules 53 77 and 54 of the Rules; and (iii) the other sub-provisions of article 18 of the Statute are 78 consistent with the allocation of the burden of proof to the State requesting a deferral.
68 The OPCV submits that “the State bears the burden of proof to show that it is
conducting genuine investigations or prosecutions, mirroring the ones conducted by the 79
Prosecutor”.
69 The Victims submit that a proper application of the principle of actori incumbit probatio must take into account which party is raising a particular issue, and in the instant situation, the burden of proving the existence of an investigation is on the Philippines, being the State that requested the deferral under article 18(2) of the Statute
on the basis of its claim that it is investigating the alleged crimes within the Court’s
80 jurisdiction.
3 Determination by the Appeals Chamber 70. The Philippines argues that the moving party, who seeks a change to the status 81 quo , bears the burden of proof.
71 Article 18(2) of the Statute provides that a State may inform the Court that “ it is
investigating or has investigated ” the relevant persons and request a deferral. At that
73
Prosecutor ’s Response , para. 54.
74
Prosecutor ’s Response , para. 44.
75
Prosecutor ’s Response , paras 44-45, 74-77.
76
Prosecutor ’s Response , paras 51-60.
77
Prosecutor ’s Response , paras 61-66.
78
Prosecutor ’s Response , paras 67-70.
79 OPCV Observations , para. 36. 80 Victims Representations, Annex 4, p. 11. 81 Appeal Brief , para. 67. No: ICC-01/21 OA 21/77
Pursuant to Pre-Trial Chamber I’s instruction, dated 12 March 2025, this document is transferred from the situation record ICC-01/12 into the case record ICC-01/21-01/25
State’s request, “ the Prosecutor shall defer to the State ’ s investigation of those persons
unless the Pre-Trial Chamber, on the application of the Prosecutor, decides to authorize
the investigation ” . Article 18(2) thus sets out the general parameters of a procedure
whereby, first, a State makes a request for deferral and, second, the Prosecutor makes
an application to the Pre- Trial Chamber for a ruling on the State’s request.
72 In a judgment concerning the admissibility of a case, the Appeals Chamber held
that
a State that challenges the admissibility of a case bears the burden of proof to show that the case is inadmissible. To discharge that burden, the State must provide the Court with evidence of a sufficient degree of specificity and probative value that demonstrates that it is indeed investigating the case.
82
It is not sufficient merely to assert that investigations are ongoing.
73 M ore broadly, the Appeals Chamber has held that “i t is an essential tenet of
the rule of law that judicial decisions must be based on facts established by evidence ”
and, crucially, that “[p] roviding evidence to substantiate an allegation is a hallmark
83
of judicial proceedings ” .
74 The M ajority notes that by “inform[ing] the Court that it is investigating or has
investigated its nationals or others within its jurisdiction with respect to criminal acts
which may constitute crimes referred to in article 5 and which relate to the information
provided in the notification to States ” and requesting deferral pursuant to article 18(2)
82 The Prosecutor v William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang , Judgment on the appeal of the Republic of Kenya against the decision of Pre-Trial Chamber II of 30 M ay 2011 entitled
“Decision on the Application by the Government of Kenya Challenging the Admissibility of the Case
Pursuant to Article 19(2)(b) of the Statute , 30 August 2011, ICC-01/09-01/11-307 (OA) (hereinafter:
“ Ruto et al. OA Judgment”), para. 62. See also The Prosecutor v. Francis Kirimi Muthaura, Uhuru
Muigai Kenyatta and Mohammed Hussein Ali, Judgment on the appeal of the Republic of Kenya against
the decision of Pre- Trial Chamber II of 30 May 2011 entitled “Decision on the Application by the
Government of Kenya Challenging the Admissibility of the Case Pursuant to Article 19(2)(b) of the
Statute ” , 30 August 2011, ICC-01/09-02/11-274 (OA) (hereinafter: “ Muthaura et al. OA Judgment”),
para. 61; The Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Senussi , Judgment on the appeal of M r Abdullah Al-Senussi against the decision of Pre-Trial Chamber I of 11 October 2013 entitled
“Decision on the admissibility of the case against Abdullah Al- Senussi” , 24 July 2014, ICC-01/11-01/11-
565 (OA6) (hereinafter: “ Al Senussi OA6 Judgment”) , para. 166; Simone Gbagbo OA Judgment ,
paras 29, 128. 83
Situation of Uganda , Judgment on the appeals of the Defence against the decisions entitled “Decision o n victims’ applications for participation a/0010/06, a/0064/06 to a/0070/06, a/0081/06, a/0082/06,
a/0084/06 to a/0089/06, a/0091/06 to a/0097/06, a/0099/06, a/0100/06, a/0102/06 to a/0104/06,
a/0111/06, a/0113/06 to a/0117/06, a/0120/06, a/0121/06 and a/0 123/06 to a/0127/06” , 23 February
2009, ICC-02/04-179 (OA) and ICC-02/04-01/05-371 (OA2), para. 36; Al Senussi OA6 Judgment, para. 167.
No: ICC-01/21 OA 22/77
of the Statute, the State concerned is alleging a fact. In this regard, rule 53 of the Rules
requires the State seeking a deferral to “ provide information concerning its
investigation”. These provisions thus make clear that the State concerned is expected
to provide information in support of its allegation of fact. The M ajority is of the view
that the Court’s legal texts thus place the burden of proof in article 18 proceedings on
84 the party which seeks to establish the existence of a fact.
75 Upon receipt of such a request for deferral, the Prosecutor “ may request
additional information from that State ”, pursuant to rule 53 of the Rules. This lends
further support to the view that at this stage, the burden is on that State to substantiate
the allegation that “ it is investigating or has investigated its nationals or others within
its jurisdiction with respect to criminal acts which may constitute crimes referred to in
article 5 and which relate to the information provided in the notification to States ”.
76 W hen the Prosecutor seises a pre-trial chamber with an application for a ruling under article 18(2) of the Statute, rule 54(1) of the Rules requires that he or she provide
“the basis for the application”. In addition, rule 54(1) stipulates that “[t] he information
provided by the State under rule 53 shall be communicated by the Prosecutor to the 85
Pre-Trial Chamber ”. As correctly acknowledged by the Pre -Trial Chamber, in its
determination of the Prosecutor’s application, a pre -trial chamber thus relies on the
information which the State initially provided to the Prosecutor.
77 As a result, the burden of providing information relevant to the pre-trial
chamber’s determinati on under article 18(2) of the Statute remains on the State seeking
deferral. The State concerned discharges this burden by providing information in
support of its initial request for deferral. The Prosecutor’s subsequent duty to
84
See also, in this context, International Court of Justice (hereinafter: “ICJ”), Case concerning Military
and Paramilitary Activities in and against Nicaragua ( Nicaragua v. United States of America ), Jurisdiction and Admissibility, Judgment of 26 November 1984 , I.C.J. Reports 1984, p. 392 at para. 101
(“[A]ny judgment on the merits in the present case will be limited to upholding such submissions of the
Parties as have been supported by sufficient proof of relevant facts, and are regarded by the Court as sound in law [...]. Ultimately, however, it is the litigant seeking to establish a fact who bears the burden
of proving it ” (emphasis added)); ICJ, Case concerning Pulp Mills on the River Uruguay ( Argentina v. Uruguay ), Judgment , 20 April 2010, I.C.J. Reports 2010, p. 14 at para. 162 (“[I]n accordance with the
well-established principle of onus probandi incumbit actori , it is the duty of the party which asserts certain facts to establish the existence of such facts . This principle which has been consistently upheld
by the Court [...] applies to the assertions of fact both by the Applicant and the Respondent” (emphasis
added)). 85 Impugned Decision , para. 10. No: ICC-01/21 OA 23/77
communicate that information to the pre-trial chamber does not affect the allocation of the burden of proof, as the information remains that which the State initially provided. 86
Therefore, contrary to the Philippines’ a rgument, the fact that it is the Prosecutor who
seises a pre-trial chamber with an application under article 18(2) of the Statute does not shift the burden of proof to the Prosecutor.
78 Indeed, under article 18(2) of the Statute, a State alleges that it is carrying out or has carried out relevant investigations. It is thus incumbent upon the State to establish 87 the facts supporting this assertion. This is in line with the well-established principle of onus probandi incumbit actori .
79 Furthermore, it is self-evident that the State seeking deferral has an interest in persuading the Prosecutor and, if necessary, the pre-trial chamber, that it is investigating
or has investigated the “ criminal acts which may constitute crimes referred to in
article 5” . It does so by providing supporting information. As correctly noted by the
Prosecutor in this regard , the State is “uniquely placed” to determine the existence and
88 scope of domestic proceedings, information which may not be publicly known.
80 For the foregoing reasons, the M ajority finds that the Philippines has failed to
demonstrate that the Pre-Trial Chamber erred in placing the onus on the Philippines “to
89
show that investigations or prosecutions are taking place or have taken place”.
Therefore, the M ajority rejects this ground of appeal.
D. Ground of appeal 3: The application of the alleged erroneous admissibility test
81 Under ground of appeal 3, the Philippines submits that the Pre-Trial Chamber
erred in applying the “same person/same conduct test” and the high standard of
assessment of the degree of mirroring with the Prosecutor’s investigations, both tests
86 Appeal Brief , para. 73. 87
See J. Stigen, ‘ The Admissibility Procedures ’ in C. Stahn and M . El Zeidy (eds), The International Criminal Court and Complementarity : From Theory to Practice , Vol. I (2011), p. 518 (“if the request is not substantiated at all, the Pre- Trial Chamber will be able to authorize an investigation quickly”); J. T. Holmes, ‘ Complementarity: National Courts versus the ICC ’ in A. Cassese, P. Gaeta, and J. R.W .D. Jones (eds), The Rome Statute of the International Criminal Court: A Commentary (2002), p. 681 (“the
information must be sufficiently detailed to demonstrate that the State is investigating or has investigated
criminal acts which relate to the information provided by the Prosecutor in the original notification”).
88
Prosecutor ’s Response , para. 63.
89 Impugned Decision , para. 14. No: ICC-01/21 OA 24/77
90 being, in its view, applicable to cases, rather than situations. The Philippines provides a number of examples of domestic proceedings which, it submits, were erroneously 91 assessed.
1 Relevant parts of the Impugned Decision 82. The Pre- Trial Chamber stated that “in considering whether to authorise the resumption of an investigation ” , a pre-trial chamber must examine “ information concerning its investigations” provided by the relevant State, the Prosecutor ’s 92 application, and “ any observations submitted by the State seeking a deferral ” . In doing so, the chamber “ shall consider the factors in article 17 in deciding whether to authorize 93 an investigation ” .
83 The Pre- Trial Chamber noted that “ article 17 of the Statute not only applies to determinations of the admissibility in a concrete case (as per article 19 of the Statute), but also to preliminary admissibility rulings pursuant to article 18 of the Statute ” , and that “the meaning of the words ‘case is being investigated’ found in article 17(1)(a) of the Statute must be understood and construed taking into account the specific context 94 in which the test is applied ” .
84 W hile the Pre-Trial Cham ber acknowledged that “ at the time a chamber must consider preliminary admissibility challenges under article 18 of the Statute, the contours of ‘ likely cases will often be relatively vague because the investigations of the 95 Prosecutor are at their initial stages ’”, it stated that “[n]onetheless, if investigations are taking place at the national level, the Chamber is tasked to consider whether the domestic investigations cover the same individuals and substantially the same conduct 96 as the investigations before the Court ” . M ore specifically, the Pre-Trial Chamber explained that “ what is required by this provision is a comparison of two very different
90 Appeal Brief , paras 76-83, 137-140. 91 Appeal Brief , paras 84-136. 92 Impugned Decision , para. 10. 93 Impugned Decision , para. 10. 94 Impugned Decision , para. 12, referring to Pre-Trial Chamber II, Situation in the Islamic Republic of Afghanistan , Decision pursuant to article 18(2) of the Statute authorising the Prosecution to resume investigation , 31 October 2022, ICC-02/17- 196 (hereinafter: “ Afghanistan Article 18(2) Decision”) , para. 46. 95 Impugned Decision , para. 12. 96 Impugned Decision , para. 13 (emphasis added), referring to Muthaura et al. OA Judgment , para. 39; Ruto et al. OA Judgment , para. 40. No: ICC-01/21 OA 25/77
97 sets of information that cannot easily be compared ” , as “[t] his assessment requires a comparison of two distinct forms of investigations , namely specific domestic proceedings or cases with identified individuals versus a so far general investigation of this Court ”, and “[d] epending on the situation, the latter investigation may look into a 98 large number of crimes, and cover a large geographical area and timeframe ” .
85 The Pre-Trial Chamber recalled that in order for the State to demonstrate activity, “ merely asserting that investigations are ongoing is not sufficient ”, and t he “ relevant State must provide the Court with evidence of a sufficient degree of specificity and 99 probative value that demonstrates that it is indeed investigating the case ” . In this respect, the Pre-Trial Chamber noted that
[a] State must show that ‘tangible, concrete, progressive investigative steps’ are undertaken. ‘[S]parse and disparate’ activities do not suffice, but rather a State should take proactive investigative steps. M oreover, such investigations must be carried out with a view to conduct criminal 100 prosecutions.
86 The Pre- Trial Chamber further noted that “[r] elevant substantiating documentation should include any ‘ material capable of proving that an investigation or prosecution is ongoing ’ such as ‘ directions, orders and decisions issued by authorities in charge […] as well as internal reports, updates, notifications or submissions 101 contained in the file [related to the domestic proceedings] ’” . In the view of the Pre- Trial Chamber, “[i]n order to satisfy the complem entarity principle, a State must show that in addition to being ‘opened’, its investigations and proceedings also sufficiently mirror the content of the article 18(1) notification, by which the Prosecution 102 notified the concerned State of the opening of an investigation, and its scope”.
87 Concerning the stage of the proceedings in the present situation, the Pre-Trial Chamber noted that “[s]ince, at the article 18 stage , no suspect has yet been the subject of an arrest warrant, and similar to what is done in the context of article 15 proceedings, admissibility can only be assessed against the backdrop of a situation and the ‘potential
97 Impugned Decision , para. 13, referring to Afghanistan Article 18(2) Decision , para. 46. 98 Impugned Decision , para. 13 (emphasis added). 99 Impugned Decision , para. 14. 100 Impugned Decision , para. 14 (footnotes omitted, emphasis in original). 101 Impugned Decision , para. 15. 102 Impugned Decision , para. 16 (footnote omitted, emphasis added). No: ICC-01/21 OA 26/77
103 cases’ that arise from this situation ”. R ecalling that “the admissibility of a case must be determined on the basis of the fa cts ‘as they exist at the time of the proceedings 104 [before the Court]’”, the Pre-Trial Chamber stated that “ [w]hen assessing the existence of investigations for the purposes of an article 18(2) request, a chamber must similarly take into account the state of such investigations at the time of its 105 consideration on the merits of the Prosecution’s request to resume its investigation ”.
88 In this context, the Pre-Trial Chamber assessed the parties’ submissions pertaining to the existence of domestic proceedings as follows:
1) Non-criminal proceedings (Department of Justice Panel (hereinafter: “DOJ Panel”), amparo proceedings, Administrative Order no. 35 Committee (hereinafter: “the Committee”) and United Nations Joint Programme on Human Rights, Philippine National Police – Internal 106 Affairs Services (hereinafter: “ PNP-IAS ”) investigations); 2) Criminal proceedings (or a lack thereof) (crimes in Davao region, crimes other than murder, killings outside police operations, policy element and 107 systematic nature of the alleged crimes); 3) Cases referred to the National Bureau of Investigation (hereinafter: 108 “NBI”); 109 4) National and regional prosecution offices and cases.
89 Acknowledging “ the challenges in making such a comparison between an ICC investigation and domestic investigations, especially in the absence, at this stage, of any identified individuals by the Prosecution ” , the Pre- Trial Chamber observed that “ given the Court’s role and purpose, and the fact that the authorised investigation concerns alleged crimes against humanity, high-ranking officials are expected to be the 110 investigation’s focus” .
90 The Pre-Trial Chamber stated that it considered the various domestic activities of the Philippines “in a holistic manner”, “taking into account the possible interaction between government agencies” and “taking together the entirety of domestic initiatives
103 Impugned Decision , para. 16 (footnotes omitted, emphasis added). 104 Impugned Decision , para. 17 (emphasis added). 105 Impugned Decision , para. 17 (emphasis added). 106 Impugned Decision , paras 29-48. 107 Impugned Decision , paras 49-69. 108 Impugned Decision , paras 70-84. 109 Impugned Decision , paras 85-95. 110 Impugned Decision , para. 68 (emphasis added).
No: ICC-01/21 OA 27/77
and proceedings”, “collectively”, in order “to determine whether their ensemble would result in a finding that the State is actively investigating the same conduct that forms 111 part of the Court’s investigation”.
91 W hilst the Pre-Trial Chamber noted the Phi lippines’ submissions that “some of its government agencies rely on each other for the purpose of advancing investigations”, and found that “in some instances investigative steps have been taken or are ongoing, albeit only with regard to low-ranking law en forcement personnel”, it concluded that “the totality of the national investigations and proceedings presented to the Chamber do not sufficiently, or at all”, “amount to tangible, concrete and progressive investigative steps being carried out with a view to conducting criminal proceedings, in a way that would sufficiently mirror the Court’s investigation as authorised in the 112 Article 15 Decision”.
2 Summary of the submissions 92. The Philippines submits that the Pre-Trial Chamber committed an error of law in it s application of “the legal standard applicable to a case, overstating the degree of overlap required in the article 18 context”, “ which invalidated its entire admissibility 113 assessment”. The Philippines argues that the same person/same conduct test is not 114 expressly provided for in article 17 of the Statute, and rather, it was “developed in 115 the context of article 19 caselaw, which concerns concrete cases”. W ith respect to the Pre- Trial Chamber’s assessment and rejections of information submitted to substantiate the Philippines ’ investigations, the Philippines submits that the Pre-Trial Chamber erroneously imposed a “high threshold, developed in the article 19 116 context”. As regards the Pre- Trial Chamber’s assessment concerning the contours of the investigation, the Philippines submits that the Pre-Trial Chamber imposed “a degree
111 Impugned Decision , para. 97. 112 Impugned Decision , paras 96-98. 113 Appeal Brief , para. 83. 114 Appeal Brief , para. 80. 115 Appeal Brief , para. 80, referring to Ruto et al. OA Judgment , para. 40; The Prosecutor v. Saif Al- Islam Gaddafi and Abdullah Al- Senussi, Judgment on the appeal of Libya against the decision of Pre- Trial Chamber I of 31 May 2013 entitled “Decision on the admissibility of the case against Saif Al -Islam Gaddafi” , 21 M ay 2014, ICC-01/11-01/11-547-R ed (OA4), (hereinafter: “ Gaddafi OA4 Judgment”), paras 62, 70; Al Senussi OA6 Judgment, paras 99-100; Pre-Trial Chamber I, The Prosecutor v. Simone Gbagbo , Decision on Cô te d’Ivoire’s challenge to the admissibility of the case against Simone Gbagbo , 11 December 2014, ICC-02/11-01/12-47-Red, para. 33. 116 Appeal Brief , para. 84. No: ICC-01/21 OA 28/77
of mirroring with the Prosecution’s investigations which cannot reasonably exist” “ at the article 18 stage whereby the contours of the Prosecution’s investigations concerni ng 117 a specific case are undefined and unclear”.
93 In his response to the Appeal Brief, the Prosecutor submits that the Philippines “overlooks that the ‘same person/same conduct’ test has been consistently used not only in the context of concrete cases, under article 19, but also before concrete cases have 118 materialised, such as under article 15 (by reference to potential cases)”. The Prosecutor argues that the Pre- Trial Chamber’s approach in the present situation “is necessary in order to ensure that the article 17 assessment is carried out objectively, on the basis of identifiable allegations and persons or groups of persons, and thus on the 119 basis of evidence rather than vague assertions or intentions”. The Prosecutor adds that while the Philippines seem s to suggest that it is merely “the prima facie existence” 120 of a State’s investigation, the “consistency of resort to this approach […] illustrates the difficulty in identifying any practicable alternative”, and that an assessment “under article 18(2) without the use of relevant comparators […] would undermine the core purpose of article 18 - which is to resolve a conflict of jurisdiction if and when it 121 objectively exists”. The Prosecutor further submits that contrary to the Philippines’ incorrect claim, the “scope of the Court’s intended investigation is sufficiently defined at the article 18(2) stage to enable a proper comparison with the activities of the State 122 seeking deferral”.
94 The OPCV submits that the Pre-Trial Chamber correctly applied the complementarity test under article 17 of Statute, as expressly foreseen by rule 55(2) of 123 the Rules and in accordance with the relevant law. In support, it argues that the distinction drawn by the Philippines between an admissibility challenge under articles 18(2) and 19(2) of the Statute is fictitious, and that when deciding on an application under either of those provisions, the Pre- Trial Chamber “shall consider the 124 factors in article 17” . The OPCV concurs with the Pre- Trial Chamber’s assessment
117 Appeal Brief , paras 112-116. 118 Prosecutor ’s Response , paras 83, 88-92. 119 Prosecutor ’s Response , para. 83. 120 Prosecutor ’s Response , para. 91. 121 Prosecutor ’s Response , paras 91-92 (emphasis in original). 122 Prosecutor ’s Response , paras 93-97. 123 OPCV Observations , para. 35. 124 OPCV Observations , para. 36 (emphasis in original omitted). No: ICC-01/21 OA 29/77
of the deferral material and submits that the Pre-Trial Chamber committed no error of 125 fact or law.
95 The Victims submit that for them “[j]ustice remains largely elusive” and that
“[t]heir families face enormous difficulties in seeking accountability using available
126
domestic legal remedies”. They emphasise “ the continued lack of investigations and
127
prosecutions of their cases ”. The Victims argue that “the inaction on th e part of the
Philippine government continues under the new administration of President Ferdinand
R. Marcos Jr” and quote a government official who stated that “[t]he new government
128
is not disposed to addressing past events”. The Victims contend that “th e small
number of prosecutions and investigations involving low-level personnel referred to by
the Philippines in their deferral request does not establish the existence of an 129
investigation”. They note that investigations by the DOJ Panel, the Committee, the
130 PNP-IAS and in the amparo proceedings are insufficient and ineffective.
3 Determination by the Appeals Chamber
i. Alleged erroneous application of the admissibility test
96 Article 17 of the Statute, in relevant part, provides:
1 Having regard to paragraph 10 of the Preamble and article 1, the Court shall determine that a case is inadmissible where:
(a) The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution;
(b) The case has been investigated by a State which has jurisdiction over it and the State has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute;
125 OPCV Observations , para. 50. 126
Annex 1 to the Registry Transmission of Victims’ Representations , ICC-01/21-74-Conf-Exp-Anx1,
p. 9. 127
Annex 2 to the Registry Transmission of Victims’ Represent ations , ICC-01/21-74-Conf-Exp-Anx2 (hereinafter: “Victims Representations, Annex 2”) , pp. 4-5. See also Annex 3 to the Registry Transmission of Victims’ Representations , ICC-01/21-74-Conf-Exp-Anx3, p. 2.
128 Victims Representations, Annex 2, p. 9. 129 Victims Representations, Annex 4, p. 13. 130 Victims Representations, Annex 4, pp. 13-14.
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(c) The person concerned has already been tried for conduct which is the subject of the complaint, and a trial by the Court is not permitted under article 20, paragraph 3;
(d) [...].
97 Article 18(2) of the Statute states:
W ithin one month of receipt of that notification, a State may inform the Court that it is investigating or has investigated its nationals or others within its jurisdiction with respect to criminal acts which may constitute crimes referred to in article 5 and which relate to the information provided in the notification to States. At the request of that State, the Prosecutor shall defer
to the State ’ s investigation of those persons unless the Pre-Trial Chamber,
on the application of the Prosecutor, decides to authorize the investigation.
98 Rule 51 of the Rules , “ Information provided under article 17”, states that
[i]n considering the matters referred to in article 17, paragraph 2, and in the context of the circumstances of the case, the Court may consider, inter alia , information that the State referred to in article 17, paragraph 1, may choose to bring to the attention of the Court showing that its courts meet internationally recognized norms and standards for the independent and impartial prosecution of similar conduct, or that the State has confirmed in writing to the Prosecutor that the case is being investigated or prosecuted.
99 R ule 52(1) of the Rules provides that the Prosecutor’s article 18 notification to
States should contain “information a bout the acts that may constitute crimes referred to
in article 5, relevant for the purposes of article 18, paragraph 2”.
100 Rule 55(1) and (2) of the Rules instructs:
Proceedings concerning article 18, paragraph 2
1 The Pre-Trial Chamber shall decide on the procedure to be followed and may take appropriate measures for the proper conduct of the proceedings. It may hold a hearing.
2 The Pre- Trial Chamber shall examine the Prosecutor’s application and any
observations submitted by a State that requested a deferral in accordance with article 18, paragraph 2, and shall consider the factors in article 17 in 131 deciding whether to authorize an investigation .
131 Emphasis added.
No: ICC-01/21 OA 31/77
101 In determining a State’s inactivity in relation to article 17(1)(a) and (b) of the Statute, the same conduct/same person test has been developed in the jurisprudence of the Court. The M ajority recalls that in the context of challenges to the admissibility of cases, the Appeals Chamber has noted that for a case to be inadmissible under article 17(1)(a) of the St atute, “the national investigation must cover the same individual and substantially the same conduct as alleged in the proceedings before the 132 Court”. The Appeals Chamber has also held that “a State is investigating the same case if it has been established that ‘ discrete aspects ’ of the case before the Court are 133 being investigated domestically”. The Appeals Chamber further noted that for a State’s challenge to admissibility “[t]o be succes sful, this challenge must be able to show what is being investigated by the State (the contours or parameters of the case) such that the Court is able to compare this against what is being investigated by the prosecutor”, and that “[i]f a State is unable t o present such parameters to the Court, no assessment of whether the same case is being investigated can be meaningfully 134 made” .
102 Concerning a chamber’s assessment of information provided by States in respect of domestic investigations and prosecutions, t he Appeals Chamber noted that “[t]he words ‘is being investigated’, in this context, signify the taking of steps directed at 135 ascertaining whether those suspects are responsible for that conduct”. M ore specifically, the Appeals Chamber stated that the relevant State must show that it is indeed taking such steps “for instance by interviewing witnesses or suspects, collecting 136 documentary evidence, or carrying out forensic analysis”. It emphasised t hat “the mere preparedness to take such steps or the investigation of other suspects is not 137 sufficient” .
103 The present appeal relates to proceedings which are the situation stage. In this regard, the M ajority recalls the following jurisprudence.
132 Ruto et al. OA Judgment , para. 40. See also Muthaura et al. OA Judgment , paras 1, 39, 41. 133 Gaddafi OA4 Judgment , para. 59 (footnotes omitted). 134 Gaddafi OA4 Judgment , para. 84. 135 Ruto et al. OA Judgment , para. 41. 136 Ruto et al. OA Judgment , para. 41. 137 Ruto et al. OA Judgment , para. 41. No: ICC-01/21 OA 32/77
104 W ith respect to article 18 proceedings, the Appeals Chamber has indicated that
the procedure set forth in article 18(1) of the Statute, providing for “an interested State
[…] to present detailed information with respect to any question of admissibility
allowing for an informed and meaningful assessment by a pre- trial chamber”, “allows
the pre-trial chamber to consider admissibility at a stage designed specifically for that 138
purpose immediately following upon the authorisation of an investigation”.
105 The Appeals Chamber has found that article 17 of the Statute applies not only to the determination of the admissibility of a concrete case (article 19 of the Statute), but 139 also to preliminary admissibility rulings (article 18 of the Statute). In relation to the
factors set out in article 17 of the Statute, the Appeals Chamber noted that “[t]he
meaning of the words ‘ case is being investigated ’ in article 17(1)(a) of the Statute must
140
[…] be understood in the context to which it is applied ”.
106 The M ajority recalls that any investigation, irrespective of its stage, have certain 141 defining parameters, which may vary depending on the circumstances of each specific situation. The M ajority is of the view that, for the purpose of admissibility challenges under article 18 of the Statute, a State is required to demonstrate an advancing process of domestic investigations and prosecutions of the same groups or categories of individuals in relation to the relevant criminality, including the patterns and forms of criminality, within a situation. The domestic criminal proceedings must
sufficiently mirror the scope of the Prosecuto r’s intended investigation. The M ajority
observes that a pre- trial chamber’ s assessment in this context is a largely fact-driven
inquiry.
107 The M ajority notes that in the present situation, the general parameters of the
situation were defined by the Pre- Trial Chamber’s Article 15 Decision and the
Prosecutor’s notification to the Philippines under article 18(1) of the Statute, and that
those parameters were sufficiently specific to enable the Philippines to provide
138 Situation in the Islamic Republic of Afghanistan , Judgment on the appeal against the decision on the authorisation of an investigation into the situation in the Islamic Republic of Afghanistan , 5 M arch 2020,
ICC-02/17- 138 (OA4) (hereinafter: “ Afghanistan OA4 Judgment”) , para. 42.
139 Muthaura et al. OA Judgment , para. 37 (emphasis added). 140 Ruto et al. OA Judgment , para. 39. See also Muthaura et al. OA Judgment , para. 38. See also Pre-Trial
Chamber III, Situation in the Republic of Côte d’Ivoire , Corrigendum to Decision Authorizing the Investigation in the Situation in Côte d’Ivoire , 15 November 2011, ICC-02/11-14-Corr, para. 190.
141 Gaddafi OA4 Judgment , para. 83. No: ICC-01/21 OA 33/77
information in relation to its domestic investigations and prosecutions under article 18(1) of the Statute and demonstrate the degree of mirroring.
108 In the view of the M ajority, the test it set forth above provides sufficient flexibility for a pre-trial chamber to integrate the specific circumstances and parameters of each
situation in its assessment under article 18 of the Statute, and gives effect to a State’s
right under article 18(2) of the Statute to seek the deferral of the Prosecutor’s
investigation.
109 The M ajority observes that in the situation at hand, the Pre-Trial Chamber stated that it considered whether the domestic investigations and prosecutions of the
Philippines cover “the same individuals and substantially the same conduct as the
142
investigations before the Court”. The M ajority notes that the Pre-Trial Chamber,
however, acknowledged that its assessment must be carried out in the context of a 143 specific situation and taking into account the different types of investigations. Furthermore, in its application of the test, the Pre-Trial Chamber examined whether the Philippines showed that (i) it is indeed investigating and prosecuting the same groups or categories of individuals in relation to the relevant criminality within the scope of
the situation, i.e. crimes related to the “w ar on drugs ” campaign; (ii) it has undertaken
“tangible, concrete, progressive investigative steps” in its investigations and
144
proceedings; and (iii) its domestic investigations and prosecutions “sufficiently
mirror the content of the article 18(1) notification, by which the Prosecution notified 145
the concerned State of the opening of an investigation, and its scope” .
110 In light of the foregoing, the M ajority considers that in its assessment of complementarity in the context of article 18(2) of the Statute, the Pre-Trial Chamber correctly assessed whether there exists an advancing process of domestic investigations or prosecutions of the same groups or categories of individuals in relation to the relevant
criminality within the situation which sufficiently mirrors the scope of the Prosecuto r’s
intended investigation, taking into account the stage of a situation, as well as the
142 See Impugned Decision , para. 13 (emphasis added), referring to Muthaura et al. OA Judgment , para. 39; Ruto et al. OA Judgment , para. 40. 143 Impugned Decision , paras 12-13, referring, inter alia, to Afghanistan Article 18(2) Decision , para. 46. 144 Impugned Decision , para. 14. 145 Impugned Decision , para. 16 (footnote omitted). No: ICC-01/21 OA 34/77
specific circumstances and parameters of the Philippines Situation. Therefore, the M ajority finds that the Pre-Trial Chamber did not err in law.
ii. Examples of the alleged erroneous application of the admissibility test
111 The Philippines alleges a number of errors in the Pre- Trial Chamber’s findings
on specific domestic proceedings and on the degree of overlap with the Court’s
investigation. W hile the Philippines appears to present these as errors of fact, the overarching argument is that the Pre-Trial Chamber erred in its findings as a result of the alleged legal errors discussed above. The examples of alleged erroneous factual
assessments form the basis for the Philippines ’ argument that the threshold of
substantiating the existence of domestic investigations and prosecutions was too 146 high, and that the standard to assess the degree of overlap between the domestic and 147 Prosecution investigations was higher than warranted in article 18 proceedings.
112 The M ajority will address the alleged errors in turn, consistent with the standard of review set out earlier in this judgment.
a. Alleged errors in the Pre- Trial Chamber’s assessment of the
deferral material 113. The Philippines provides examples of proceedings with respect to which, in its
view, the Pre-Trial Chamber applied a “high threshold, developed in the article 19
context” in order “to reject swathes o f information submitted by the Philippine
148
Government to substantiate its investigations”.
(1) M atrix of cases
(i) Summary of the submissions 114. The Philippines submits that the Pre-Trial Chamber erroneously applied the
higher threshold applicable to article 19 proceedings, “whereby a State is expected to
substantiate the existence of proceedings to such a high degree in connection to a single
concrete case” , to conclude that the four charts listing 302 cases referred to the NBI
were not, by themselves, sufficient to substantiate concrete or ongoing investigative
146 Appeal Brief , paras 90, 96, 98-99, 111. 147 Appeal Brief , paras 120, 123, 128, 131, 136. 148 Appeal Brief , para. 84. No: ICC-01/21 OA 35/77
149 steps. The Philippines also argues that, by rejecting material listing cases before the
National Prosecution Services (hereinafter: “ NPS ”) , the Pre-Trial Chamber erroneously
required that such material should show that actual individual trials took place or are
150 about to take place. The Philippines contends that such scrutiny “goes well beyond
the scope of article 18 whereby the existence of investigation is sufficient” , and that it
“ignores the framework under article 18(5) whereby the progress of investigations is
151 subject to period ic updates”.
115 In his response to the Appeal Brief, t he Prosecutor argues that “the Philippines’
general argument concerning the assessment required and the evidence to be submitted
for the purpose of article 18(2) is incorrect” and that “it shows no erro r for the Chamber
152 to have applied this approach”. He contends that the Pre- Trial Chamber’s reference
to uncertainty whether “trials” were taking place “did not reflect any kind of legal
153 requirement […] but rather the factual context of the documents in question”. The
Prosecutor submits that the Philippines “fails to address other salient reasons” for the
Pre- Trial Chamber’s conclusion, such as the lack of supporting documentation for the
listed cases, despite a reasonable expectation that the Philippines should have access to
154 relevant information.
116 The OPCV submits that the Philippines’ claim that the Pre -Trial Chamber applied
a “higher threshold” in its assessment is flawed, as “most of the documentation was in
155 fact irrelevant or insufficient to establ ish a link with the issue sub judice”. It argues
that the Philippines “disregards the Chamber’s caveat that it laid out the domestic
156 measures separately to mirror the Prosecution’s request to resume the investigation”.
149 Appeal Brief , paras 89-90. 150 Appeal Brief , paras 91-93. 151 Appeal Brief , para. 93. 152 Prosecutor ’s Response , para. 111. 153 Prosecutor ’s Response , para. 111. 154 Prosecutor ’s Response , para. 112. 155 OPCV Observations , paras 51, 53 (emphasis in original omitted). 156 OPCV Observations , para. 53 (emphasis in original omitted).
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(ii) Determination by the Appeals Chamber (a) Four lists of cases referred to the NBI
117 In its Article 18 Observations, the Philippines submitted that “several cases are
already pending before different prosecution offices of the Department of Justice
(“DOJ”), specifically in Angeles City (58 cases), San Jose Del M onte City (81 cases),
and the Province of Bulacan (111 cases)”, as well as “52 ‘nanlaban’ (resisting arrest)
157
cases referred to the [NBI] for case- build up”.
118 The Pre-Trial Chamber considered the four charts listing 302 cases referred to the
NBI and relied upon by the Philippines. It found that the case lists “are not, by
themselves, sufficient to substantiate concrete or ongoing investigative steps to support
the deferral of the Court’s investigation”, as they do not provide sufficie nt specificity
and do not enable an analysis of “whether the investigative steps into the conduct of the
158
relevant law enforcement agents have in fact occurred or are occurring”.
119 The Pre-Trial Chamber further found that:
[O]f the cases referred to in these four lists, only for eight corresponding documentation was submitted that illustrates possible investigative activities being taken in respect of that case, charges having been recommended, or prosecutions having commenced against the relevant law enforcement agents involved. However, two of these cases appear to be outside of the
temporal scope of the authorised investigation […]. That leaves six cases
159
relevant to the Chamber’s analysis.
120 Regarding these six relevant cases, the Pre-Trial Chamber found that with respect 160
to two of them, a part of the “documentation is incomprehensible without further
explanation and the material is incomplete, as it references attachments which were apparently used to support each recommendation but were not provided to the 161
Court”. As a result, the Pre-Trial Chamber found that it was “difficult to assess
whether these two cases show tangible investigative activity” and even if they do, they
157 Philippines Article 18 Observations , para. 26. 158 Impugned Decision , para. 79. 159 Impugned Decision , para. 80 (footnotes omitted). 160
“Transmittal letter” from the NBI to the Provincial Prosecutor (PHL -OTP-0008- 1633); the NBI’s
investigation and analysis (PHL-OTP-0008-1633). 161 Impugned Decision , para. 81. No: ICC-01/21 OA 37/77
“appear to have been dismissed by the NBI” and “no information is provide d about the
162 reasons for the dismissals”.
163 121. W ith respect to the four other cases, the Pre- Trial Chamber stated that “[the
investigative] steps [referred to in the supporting documents] – if shown to have taken
164 place – may be considered as tangible, concr ete investigative steps”. However, “the
number of cases investigated in this manner by the NBI appears to remain very limited
165 in number and scope”.
122 The Philippines argues that the charts of cases referred to the NBI “detailed the
identifying information requested of it by the Prosecution, i.e. the case number, the
names of law enforcement officials involved, names of deceased[,] suspects, location
166 and dates of incident and additional remarks and observations as appropriate”.
According to the Philippi nes, these lists “provided prima facie evidence of the existence
of the investigations and proceedings before the NBI and were supplied in a format
167 requested by the Prosecution”. The Philippines submits that the Pre- Trial Chamber’s
conclusion regarding t hese lists “is indicative of the application of the higher threshold
168 applied in article 19 proceedings”.
123 The M ajority notes at the outset that the Philippines does not specifically
challenge the Pre- Trial Chamber’s analysis of the six cases under this h eading. Rather,
the Philippines takes issue with the degree to which it was “expected to substantiate the
169 existence of proceedings” in relation to the remainder of the 302 cases listed in the
four charts. In this regard, the M ajority notes that with respect to the first three lists
concerning 250 cases, the Philippines asserted before the Pre-Trial Chamber that those
cases were referred to the NBI for investigation and case build- up, but it provided “no
170 documentation outlining concrete investigative activ ities […] for any of them”. By
pointing out the lack of such documentation, the Pre-Trial Chamber expressed its
162 Impugned Decision , para. 81. 163 “Final reports” from the NBI. Annex C-1 to C-4 to Philippines Article 18 Observations . 164 Impugned Decision , para. 82. 165 Impugned Decision , para. 82. 166 Appeal Brief , para. 89. 167 Appeal Brief , para. 90 (emphasis in original omitted). 168 Appeal Brief , para. 90. 169 Appeal Brief , para. 90. 170 Impugned Decision , para. 74.
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concern about the lack of information on whether “concrete investigative activities” were carried out. It is clear from the remarks which the Pre-Trial Chamber made throughout its analysis that it found the information provided by the Philippines to be 171 “limited”. It concluded that the four lists “do [not] contain information enabling the Chamber to analyse whether investigative steps into the conduct of the relevant law 172 enforcement agents have in fact occurred or are occurring”.
124 Furthermore, with respect to the fourth list of cases concerning 52 cases, the Pre-Trial Chamber noted that the recommendations of the Internal Affairs Service c ontained in that list “appear to consist of administrative findings and sanctions”, with only one reference to a possible criminal process being a “recommendation that an 173 appropriate complaint be filed”. As with the other three lists, the Pre-Trial Chamber was thus concerned about the lack of information on whether any criminal proceedings were conducted.
125 The M ajority finds that the Pre- Trial Chamber’s conclusion that the four lists did not show “concrete or ongoing investigative steps to support the deferral of the Court’s 174 investigation” was not the result of the application of a higher threshold as alleged by the Philippines. Rather, the Pre-Trial Chamber ’s conclusion was based on the fact that it had received only limited information relevant to its enquiry under article 18(2) of the Statute. The M ajority finds no error in the Pre- Trial Chamber’s approach in this regard. Consequently, the M ajority rejects the Philippines arguments on this point.
(b) The list of cases before the NPS 126. In its discussion of the “[n]ational and regional prosecution offices cases”, the Pre-Trial Chamber addressed the issue of whether the lists of cases collated from the NPS documents support the deferral of the Court’s investigation. The Pre -Trial Chamber held that “apart fro m one case, no corresponding or underlying prosecutorial documentation has been provided to substantiate the information contained in these 175 lists”. The Pre- Trial Chamber also noted that “[w]ithout more, it is unclear how and
171 Impugned Decision , paras 74, 75. 172 Impugned Decision , para. 79. 173 Impugned Decision , para. 78. 174 Impugned Decision , para. 79. 175 Impugned Decision , para. 88 (footnote omitted). No: ICC-01/21 OA 39/77
whether the information in these lists relate to trials that actually took place, or are
176 taking place”.
127 The Philippines argues that despite the fact that it provided “what the Prosecution
177 requested”, the Pre-Trial Chamber rejected the lists on the basis that the Philippines
did not provide “material to show that the actual individual trials took place”, which is
178 “more scrutiny than was applied at the article 15”. The Philippines also submits that
it “goes well beyond the scope of article 18 whereby the existence of the investigation
is sufficient” and “ignores the framework under article 18(5) whereby the progress of
179 investigations is subject to periodic updates”.
128 The M ajority notes that the Pre-T rial Chamber’s reference to the absence of
information on past or ongoing trials is part of its analysis of the information on the
cases provided by the Philippines. The main reason for the Pre- Trial Chamber’s
conclusion with regard to the lists of cases b efore the NPS was that the “information
180 [provided by the Philippines] is of limited use to the Chamber’s assessment”.
Notably, the Pre- Trial Chamber found that “[t]he list from ‘the dockets of the [NPS] ’
includes limited details” , and that the lists from the Regional Prosecution Offices
181 “mainly contain particulars of an administrative nature”. The M ajority further notes
that the Pre-Trial Chamber examined “the status of each case as of May 2021” indicated
182 in the list from the NPS’ dockets , which included a stage of “trial ongoing” . For
instance, the “Partial Listing of Cases” in the dockets of the NPS makes reference to
183 “[t]rial ongoing” with respect to three of the listed cases. Viewed in this context, the
Pre- Trial Chamber’s remark s on the uncertainty as to past or ongoing trials seems to
relate to the “limited use” of the indication that “[a] trial [is] ongoing” in some of the
176 Impugned Decision , para. 88. 177 Appeal Brief , para. 91. 178 Appeal Brief , paras 92-93. 179 Appeal Brief , para. 93. 180 Impugned Decision , para. 88. 181 Impugned Decision , para. 88. 182 Impugned Decision , para. 88, fn. 223 (“These stages include: Prosecution ongoing; dismissed; trial ongoing ; pending for petition for review with DOJ; convicted and pending preliminary investigation” (emphasis added)). 183 “Partial Listing of Cases in the Dockets of the Nati onal Prosecution Service relating to Investigations into Deaths during Anti- Illegal Drug Operations”, PHL -OTP-0008-0046, pp. 1-3.
No: ICC-01/21 OA 40/77
cases “as of May 2021”, without any information on whether “trials actually took place,
184
or are taking place”.
129 It is thus clear that the Pre- Trial Chamber’s remark on ongoing trials does not
constitute a legal requirement but merely a finding that the information provided by the
Philippines was of “limited use”. The Philippines thus misrepresents the Impugned
Decision by arguing that the Pre- Trial Chamber “demand[ed] […] material to show that
185
the actual individual trials took place”. Therefore, the M ajority rejects this argument
of the Philippines.
(c) Conclusion on alleged errors in the Pre-Trial
Chamber’s assessmen t of the matrix of cases
130 The M ajority finds that with respect to the four lists of cases referred to the NBI, the Philippines has not shown that the Pre-Trial Chamber erred in finding that the Philippines failed to provide sufficient information supporting concrete investigative
steps that would sufficiently mirror the scope of the Court’s investigation. Regarding
the lists of cases before the NPS, the M ajority finds that the Philippines has failed to demonstrate that the Pre-Trial Chamber erroneously imposed a requirement that trials must have taken place.
(2) Investigative files/materials
(i) Summary of the submissions
131 The Philippines’ main contention is that the Pre -Trial Chamber demanded a
higher threshold of interrogation and verification of the information provided than is 186 warranted under article 18 of the Statute. It presents two examples where, despite the
provision of supporting material, the Pre-Trial Chamber rejected the Philippines’
description of investigative steps taken in relation to recommendations and reports by 187 the NBI. The Philippines contends that the Pre-Trial Chamber ignored the fact that
“a State can only be guided by the limited information provided to it in the article 18(1)
188
notice and the article 15 litigation” and deman ded “a wealth of in -depth information
184 Impugned Decision , para. 88. 185 Appeal Brief , paras 92-93. 186 Appeal Brief , para. 96. 187 Appeal Brief , para. 97. 188 Appeal Brief , para. 99. No: ICC-01/21 OA 41/77
as well as […] material in relation to the entirety of the Prosecution’s broad
189
investigation” unwarranted in the article 18 context.
132 In his response to the Appeal Brief, the Prosecutor submits that the Philippines
failed to show how either of these examples demonstrates that the Pre-Trial Chamber
190 applied an overly strict standard for the purpose of article 18(2) of the Statute.
Regarding the first example, he argues that the Philippines fails to address the “precise
191
reasoning of the Chamber concerning the significance of the missing indictments”.
The Prosecutor contends that, in the circumstances of the present situation, the Pre-Trial
192
Chamber’s approach was reasonable. Regarding the second example, the Prosecutor
submits that while he had, in his submissions, considered that the two cases in question
were adequately substantiated, it does not necessarily follow that the Pre-Trial
193
Chamber’s findings in this respect are unreasonable. The Prosecutor avers that, at
any rate, these cases are a small fraction of the claims made by the Philippines
concerning the activities of the NBI and any error made by the Pre-Trial Chamber in
194 this respect would not materially affect its overall conclusions.
133 The OPCV argues that the Philippines’ contention that the Pre-Trial Chamber
“demanded a level of interrogation and verification of official reports which is not
195
warranted in the article 18 context” is unsubstantiated. It argues that “ providing a
wealth of unrelated and/or inconclusive documentation is […] unwarranted – and this
196
is what barred the Chamber from making a positive finding for deferral ” .
(ii) Determination by the Appeals Chamber
(a) National and regional prosecution offices cases
134 The first example provided by the Philippines concerns two cases in which the
197 NBI recommended indictments. In this regard, the M ajority recalls that in its
Article 18 Observations, the Philippines claimed that a number of investigations
189 Appeal Brief , para. 98. 190
Prosecutor ’s Response , para. 117.
191
Prosecutor ’s Response , para. 115.
192
Prosecutor ’s Response , para. 115.
193
Prosecutor ’s Response , para. 116.
194
Prosecutor ’s Response , para. 116.
195 OPCV Observations , para. 53 (emphasis in original omitted). 196 OPCV Observations , para. 53. 197 Appeal Brief , para. 97.
No: ICC-01/21 OA 42/77
conducted by the NBI had resulted in the filing of criminal complaints before different
198
offices of the prosecutors in the Philippines. It submitted that (i) the “P artial listing
of cases in the dockets of the NPS relating to investigations into deaths during
anti-narcotic operations ” showed that investigations had been conducted against police
199
officers with respect to their conduct during anti-illegal drug operations and (ii) 52
200
nanlaban (resisting arrest) cases were referred to the NBI for case build-up. Of those,
according to the Philippines, 19 cases had been resolved, some had been terminated or
dismissed for lack of evidence, and in other cases, the NBI found enough evidence to
201
recommend an indictment.
135 The information provided in this regard consisted of : “one list of cases from ‘the
dockets of the [NPS] ’, three lists of cases collated from the dockets of three Regional
202
Prosecution Offices, as well as eight NPS case files ”. The Philippines also “pointed
to various indictments that ha[d] been recommended against police officers who were
203
involved in deaths during anti-illegal drug operations ”.
136 In respect of the recommended indictments against police officers – highlighted
by the Philippines – the Pre-Trial Chamber noted that the Philippines relied on “various
204
types of documentation, diff ering in detail and scope” . The Pre-Trial Chamber
observed that some of those items contained “brief summaries of the recommended
indictments and include [d] limited details of the result of the NBI’s investigation, the
charges recommended by the NBI and the status of each case, such as whether they
205
[we]re at trial or remain[ed] at an investigative stage ”. It concluded that:
89 […] [N]o further documentation, or the indictments themselves, have
been provided. Some incidents for which indictments have been recommended and corresponding investigation files provided are outside the temporal scope of the authorised investigation, and therefore irrelevant for
198 Philippines Article 18 Observations , para. 37.1.2. 199 Philippines Article 18 Observations , para. 125 (emphasis in original omitted), referring to PHL-OTP- 0008-0046. 200 Philippines Article 18 Observations , para. 78. 201 Philippines Article 18 Observations , para. 78. 202 Impugned Decision , para. 87. 203 Impugned Decision , para. 87, referring to PHL-OTP-0008-0046, PHL-OTP-0008-1338, PHL-OTP- 0008-1341, PHL-OTP-0008-1334, PHL-OTP-0008-1348; PHL-OTP-0008-1392, PHL-OTP-0008-1416, PHL-OTP-0008-1451, PHL-OTP-0008-1476, PHL-OTP-0008-1505, PHL-OTP-0008-1532, PHL-OTP- 0008-1580. 204 Impugned Decision , paras 87, 89, referring to Annexes C, D, E, F, G, H to the Philippines Article 18 Observations . See also Appeal Brief , para. 97, referring to Philippines Article 18 Observations , para. 78. 205 Impugned Decision , para. 89.
No: ICC-01/21 OA 43/77
the Chamber’s analysis. Other incidents are said to have forthcoming
criminal complaints to be filed.
90 The Chamber finds that the mere reference to the existence of cases in the absence of underlying supporting documentation, does not allow for an assessment as to whether any concrete and progressive investigatory steps are being taken or to determine whether prosecutions are actually being 206 undertaken by competent national authorities in respect of these cases.
137 The Philippines submits that it was incorrect for the Pre-Trial Chamber to dismiss, on the basis of the absence of copies of the underlying indictments, the
Philippines’ information that indictments recommended by the NBI were before
207 regional courts. The M ajority notes in this respect that the Pre-Trial Chamber
expressed concerns about the absence of “further documentation, or the indictments
208
themselves” in relation to several cases relied upon by the Philippines. The
supporting documents indicate that reports were transmitted to DOJ M anila 209 recommending the filing of charges against the named police officers. However, no document has been provided to demonstrate what further steps were taken following the aforementioned recommendations and, notably, whether the indictments recommended by the NBI were actually filed.
138 The Pre- Trial Chamber also noted “inconsistent documentation to suggest that
210
the NBI has in fact dismi ssed or terminated these cases for lack of evidence”. Indeed,
the supporting material suggests that with respect to some of these cases, it was 211
“recommended that these cases be treated closed and terminated”. Therefore,
contrary to the Philippines’ contention, the Pre -Trial Chamber did not reject the
information regarding those cases solely due to the absence of the underlying indictments. Rather, the Pre-Trial Chamber was confronted with conflicting information as to the status of those cases. It was therefore not unreasonable for the Pre-Trial Chamber to conclude that the absence of further documentation, especially
indictments, made it difficult to assess “ whether any concrete and progressive
206 Impugned Decision , paras 89-90 (footnotes omitted). 207 Appeal Brief , paras 97-99. 208 Impugned Decision , para. 89. 209 Annex D to Philippines Article 18 Observations , pp. 1-2. 210 Impugned Decision , para. 89, fn. 228. 211 Annex C to Philippines Article 18 Observations , p. 18. No: ICC-01/21 OA 44/77
investigatory steps are being taken or to determine whether prosecutions are actually 212
being undertaken by competent national authorities in respect of these cases ” .
139 In light of the foregoing, the M ajority rejects these arguments of the Philippines.
(b) NBI investigative reports and underlying municipal reports
140 W ith respect to the second example, the Philippines refers to two preliminary
investigation reports conducted by NBI and submitted before the Provincial 213
Prosecutor. As discussed above in the analysis of the “Matrix of Cases” , the two
cases referenced were among six out of a total of 266 cases relied upon by the
Philippines to support its claim that the relevant cases had been referred to the NBI for
investigation, that were found to fall within the temporal scope of the Court’s
214 investigation and had been sufficiently substantiated. The Pre-Trial Chamber
assessed documentation consisting of a cover letter entitled “T ransmittal letter ” from
the NBI to the Provincial Prosecutor, which included the official report from the
municipal police station of the incident where the suspect died, the NBI’s investigation
215
and analysis, and the scope of the NBI’s recommended charges. It found that:
[P]art of this documentation is incomprehensible without further explanation and the material is incomplete, as it references attachments which were apparently used to support each recommendation but were not provided to the Court. It is therefore difficult to assess whether these two cases show tangible investigative activity. M oreover, even assuming they do, the two cases appear to have been dismissed by the NBI, but no information is 216 provided about the reasons for the dismissals.
141 The Philippines alleges that “ the Pre-Trial Chamber rejected two detailed
preliminary investigation reports conducted by NBI and submitted before the Provincial
Prosecutor, as the ‘ referenced attachments which were apparently used to support each
217
recommendation ’ were not provided to the Court ” . Indeed, the reports in question
212 Impugned Decision , paras 89-90 (footnotes omitted). 213
Appeal Brief , para. 97, referring to PHL-OTP-0008- 1633 (Annex P to the Philippines’ letter of
31 M arch 2022). 214 Impugned Decision , para. 81. For the assessment of cases referred to the NBI, see paragraphs 117- 125 above. 215 Impugned Decision , para. 81, referring to PHL-OTP-0008-1633. 216 Impugned Decision , para. 81 (footnotes omitted) . 217
Appeal Brief , para. 97, referring to PHL-OTP-0008- 1633 (Annex P to the Philippines’ letter of
31 M arch 2022).
No: ICC-01/21 OA 45/77
218 make reference to attachments, which were apparently not provided. However, as 219 conceded by the Prosecutor, the reports demonstrate some investigative steps and 220 contain an analysis of evidence. The conclusion, at least for one of the reports, is that
“there exists probable cause to collectively charge” the named individuals with
221 crimes.
142 The M ajority notes, however, that the lack of attachments was not the only reason
for the Pre-Trial Chamber to state that it was difficult for it to assess whether “ these
222
two cases show tangible investigative activity”. The Pre-Trial Chamber also noted
that “ the two cases appear to have been dismissed by the NBI, but no information is
223
provided about the reasons for the dismissals ” . Another document indeed indicates
224 that both cases were dismissed. In view of this conflicting information, it was not unreasonable for the Pre-Trial Chamber to consider that if it had received the aforementioned attachments, it would have been in a better position to make a finding on the status of those domestic proceedings, and to express reservations as to whether
those two cases showed “tangible investigative activity”.
(c) Conclusion on alleged errors in the Pre-Trial
Chamber’s assessment of the investig ative
files/materials 143. In view of the foregoing, the M ajority finds that the Philippines has failed to
demonstrate any error in the Pre- Trial Chamber’s findings with respect to the two
examples, which, according to the Philippines, demonstrate the investigative steps taken in relation to recommendations and reports by the NBI.
(3) Criminal referrals and disciplinary proceedings
(i) Summary of the submissions 144. The Philippines submits that the Pre-Trial Chamber erroneously rejected the material related to the steps undertaken by the Committee, the DOJ Panel and the
218 PHL-OTP-0008-1633. 219
Prosecutor ’s Article 18(2) Request , para. 106.
220 The conclusion of the second report is illegible. 221 PHL-OTP-0008-1633, at 1644. 222 Impugned Decision , para. 81. 223 Impugned Decision , para. 81 (footnotes omitted) . 224 Annex C to Philippines Article 18 Observations , p. 2. No: ICC-01/21 OA 46/77
PNP- IAS, which “demonstrated the overall and general arc of the investigative 225 processes connected to the anti- illegal drug operations”. The Philippines argues that, by treating such material as non- criminal in nature, “the Pre -Trial Chamber undertook a referendum on the Philippines’ national legal processes in an isolated and piecemeal 226 manner”. It contends that, rather than undertaking a holistic assessment of the investigative cycle before those domestic authorities, “the Pre -Trial Chamber reviewed each stage in isolation and demanded information confirming criminal prosecutions of 227 specific cases above and beyond what is required”. According to the Philippines, the Pre-Trial Chamber also failed to take into account the unique character of the Philippines’ domestic legal system, being a combination of common and civil law families, as well as the geographic and technological barriers that complicated the 228 process of evidence collection.
145 In his response to the Appeal Brief, the Prosecutor argues that this aspect of the Philippines’ appeal warrants summary dismissal, as the Philippines fails to sho w any error and does not assert that the Pre- Trial Chamber’s conclusions were incorrect or 229 unreasonable. He submits that the Philippines raises for the first time on appeal arguments concerning a mandatory progression from the PNP-IAS to review by the DOJ Panel to the case build-up by the NBI, without citing any clear basis requiring this 230 sequence. In the view of the Prosecutor, “PNP -IAS investigations and/or reviews by the [DOJ Panel] are not legal prerequisites to the criminal investigation or prosecution 231 of a police officer”. The Prosecutor notes that the Philippines has not pointed to any 232 concrete further action resulting from the PNP-IAS proceedings. The Prosecutor argues that the Philippines provides no support for its argument that the Pre-Trial 233 Chamber was blind to differences in legal culture or tradition.
146 The OPCV submits that a demonstration of “the overall and general arc of the investigativ e processes” is not sufficient “if the documentation lacks the minimal
225 Appeal Brief , paras 100, 102. 226 Appeal Brief , para. 101. 227 Appeal Brief , para. 108. 228 Appeal Brief , para. 109. 229 Prosecutor ’s Response , paras 121, 124. 230 Prosecutor ’s Response , para. 122. 231 Prosecutor ’s Response , para. 122. 232 Prosecutor ’s Response , para. 123. 233 Prosecutor ’s Response , para. 124.
No: ICC-01/21 OA 47/77
234
preponderance of the evidence ”. It argues that the procedural cycle described by the
Philippines is flawed, and that the Pre- Trial Chamber’s analysis in this respect was “a
235
sensible a pproach”. The OPCV contends that even if the Philippines’ assertion that
the administrative procedures fit into the broader criminal justice process were correct, the question remains whether such procedures indeed led to criminal investigations and 236 proceedings, which, in its view, the Philippines was unable to demonstrate.
(ii) Determination by the Appeals Chamber 147. The Pre-Trial Chamber concluded that the activity of the non-criminal and disciplinary mechanisms, namely the PNP-IAS, DOJ Panel and the Committee, did not
amount to “ tangible, concrete and progressive investigative steps carried out with a
237
view to conducting criminal proceedings ”.
148 In particular, the Pre-Trial Chamber observed that the charts listing 250 NPS
cases presented by the Philippines “d o not provide information as to whether criminal
investigations and prosecutions were initiated against the police officers involved in the 238
killings”. The Pre- Trial Chamber also noted that “there is no indication in the
material […] suggesting that the D OJ Panel conducts investigative activity by itself
239
before deciding to refer cases to the NBI for further investigation”. The Pre-Trial
Chamber also observed that the number of reviewed cases (302) was very low
compared to the estimated number of alleged killings during the “ war on drugs ”
240 operations.
149 Regarding the activity of the Committee, the Pre-Trial Chamber found that on the basis of the two lists of cases provided by the Philippines, it was impossible to discern
whether those cases concerned killings in the context of the “ war on drugs ” , and that
these lists do not “ indicate any concrete investigative activity taken by the Committee
234 OPCV Observations , para. 55. 235 OPCV Observations , para. 58. 236 OPCV Observations , para. 58. 237 Impugned Decision , para. 48. 238 Impugned Decision , para. 34. 239 Impugned Decision , para. 35. 240 Impugned Decision , para. 35. No: ICC-01/21 OA 48/77
itself, whose intervention appear[ed] limited to monitoring and evaluating their
241
status” .
150 In relation to the PNP-IAS, the Pre-Trial Chamber noted that, on the basis of the
supporting documents, the PNP-IAS disciplinary proceedings were not conducted with
242 the aim, or at least not the primary aim, to further criminal proceedings. Regarding
the 52 nanlaban cases, the Pre-Trial Chamber found that they appeared to have in fact
243 been referred to the NBI. However, the Pre-Trial Chamber observed that the list only
244
included limited information for each case, and did not “provide information as to
whether criminal investigations and prosecutions were initiated against the police
245
officers involved in the killings”. The Pre-Trial Chamber noted that the list of
nanlaban cases appeared “to consist of administrative findings and sanctions against
the rel evant law enforcement personnel involved in each case, with the ‘observations’
246
similarly outlining general statements on the circumstances of death for each victim”.
It found that “[t]he sole reference in the list to any possible criminal process to be taken
against a law enforcement officer is a single recommendation that an appropriate
247
criminal complaint be filed ”. Therefore, in the view of the Pre-Trial Chamber, the
list provided neither a sufficient degree of specificity and probative value, nor the
information which would have enabled the Chamber “ to analyse whether investigative
steps into the conduct of the relevant law enforcement agents have in fact occurred or
248
are occurring”.
151 The first argument of the Philippines in relation to the non-criminal and
disciplinary proceedings is that the rejection of material regarding those proceedings
was a result of the isolated and piecemeal manner of the Pre-Trial Chamber ’s
249 evaluation. The Philippines submits that the Pre-Trial Chamber should have found
that such material demonstrates the existence of a three-stage mechanism forming an
241 Impugned Decision , para. 43. 242 Impugned Decision , para. 47. 243 Impugned Decision , para. 75. 244 Impugned Decision , para. 75. 245 Impugned Decision , para. 34. 246 Impugned Decision , para. 78. 247 Impugned Decision , para. 78. 248 Impugned Decision , para. 79. 249 Appeal Brief , para. 101.
No: ICC-01/21 OA 49/77
integral part of the broader investigative processes connected to the anti-illegal drug 250 operations.
152 The Philippines does not clarify, however, whether and to what extent the
Pre- Trial Chamber’s allegedly fragmented analysis affected the conclusions it reached
in the Impugned Decision. The M ajority notes that the Pre-Trial Chamber was unable to determine that the non-criminal and disciplinary proceedings in question would lead 251 to the opening of criminal investigations or prosecutions, and concluded that, on their
own, they were insufficient to amount to “tangible, concrete and progressive
252
investigative steps”. The Pre-Trial Chamber relied in this respect on the documents
provided by the Philippines, which indeed provide scant information about the nature of the proceedings in question or about their potential to lead to investigations or prosecutions. For instance, the lists of 250 NPS cases only describe some evidentiary shortcomings and provide no information on whether criminal investigations followed 253 or whether charges were brought. Similarly, the list of 52 nanlaban cases only refers to administrative measures, such as dismissals, demotion or suspension, rather than to 254 criminal proceedings. The Philippines does not seem to challenge the Pre-Trial
Chamber’s findings based on these d ocuments. Notably, the Philippines does not
explain how the three-stage mechanism, which it describes in the Appeal Brief, would lead to the initiation of criminal proceedings in the listed cases. As a result, the M ajority finds that the Philippines had not demonstrated that the Pre-Trial Chamber erred in this regard.
153 The Philippines’ second argument concerns the alleged failure on the part of the
Pre-Trial Chamber to have due regard to the specific features of the domestic criminal 255 justice system. However, the only specificity it describes is that the domestic
“procedural rules demand a lengthier investigation phase” and that “the commencement
256
of court proceedings following investigation [is] usually immediate ” . The
Philippines fails to demonstrate that the Pre-Trial Chamber disregarded this alleged
250 Appeal Brief , paras 103-105. 251 Impugned Decision , paras 34, 35, 43, 47. 252 Impugned Decision , para. 48. 253 PHL-OTP-0008-1228; PHL-OTP-0008-1259; PHL-OTP-0008-1294. 254 PHL-OTP-0008-0050. 255 Appeal Brief , para. 109. 256 Appeal Brief , para. 109. No: ICC-01/21 OA 50/77
specificity of its legal system. Indeed, even if it were accepted that in the Philippine system, court proceedings immediately follow lengthy investigations, the cases listed in the supporting documentation do not refer to such court proceedings.
154 Similarly, the Philippines does not demonstrate how the alleged “ geographic and 257 technological barriers ” or the procedural rules prolong investigations, and why the Pre-Trial Chamber’s alleged failure to duly consider such factors affected its assessment of the proceedings in question as being non-criminal.
155 In view of the foregoing, the M ajority rejects the Philippines’ arguments concerning the non-criminal and disciplinary proceedings.
b. Alleged errors in the Pre- Trial Chamber’s assessment concerning the contours of the investigation 156. The Philippines presents examples of the assessments in which the Pre-Trial Chamber allegedly “required a degree of mirroring with the Prosecution’s 258 investigations which cannot reasonably exist at this point in the proceedings”.
(1) Investigation of senior officials
(i) Summary of the submissions 157. The Philippines submits that the Pre- Trial Chamber made “an unreasonable assessment”, as it ignored the fact that there were ongoing investigations within the Philippines’ jurisdiction in relation to the anti - illegal drugs campaign and it “expected the current status of domestic investigations to match future investigations of the 259 Prosecution”. The Philippines states that the Pre- Trial Chamber made a “premature assessment” of its investigations, in contravention of the framework of article 18 of the 260 Statute, which allows for periodic updates on the progress of national investigations. The Philippines argues that its investigations focus on the most responsible 261 perpetrators, who may be low or mid-ranking officials, and that “the only way to
257 Appeal Brief , para. 109. 258 Appeal Brief , para. 112. 259 Appeal Brief , para. 120. 260 Appeal Brief , para. 123. 261 Appeal Brief , para. 122. No: ICC-01/21 OA 51/77
establish the culpability of senior officials is through the identification of leads between
262 the direct perpetrator on the one hand and the senior officials on the other”.
158 In his response to the Appeal Brief, the Prosecutor submits that no sufficiently
specific evidence was presented about the existence of proceedings against
263 high-ranking officials. He contends that the fact that the Philippines focused on
low-ranking individuals made it unclear how the Philippines was investigating “the
question of the potential links between criminal incidents, which may be significant to
264 the contextual element of crimes against humanity”.
159 The OPCV argues that “in reference to the policy element and systematic nature
of the alleged crimes, the Philippines has not show[n] that it carried out domestic
265 proceeding towards high- ranking officials”.
(ii) Determination by the Appeals Chamber
160 In its discussion of the “[p]olicy element and systematic nature of the alleged
crimes”, t he Pre-Trial Chamber addressed the issue of whether the Philippines
“investigated any pattern of criminality or systematicity, including by those who would
266 appear to be most responsible for conceiving or implementing a policy”. The
Pre- Trial Chamber held that “given the Court’s role and purpose, and the fact that the
authorised investigation concerns alleged crimes against humanity, high-ranking
267 officials are expected to be the investigation’s focus”. As such, “since [the domestic
proceedings in the Philippines] only address the physical, low-ranking perpetrators and
268 at present do not extend to any high- ranking officials”, the Pre-Trial Chamber found
269 that they “do not sufficiently mirror the expected scope of the Court’s investigation”.
161 Regarding the Philippines’ argument that the culpability of senior officials is
established through the identification of leads between them and the direct
270 perpetrators, the M ajority notes that the Pre-Trial Chamber considered a similar
262 Appeal Brief , para. 121. 263 Prosecutor ’s Response , paras 125-126. 264 Prosecutor ’s Response , para. 128. 265 OPCV Observations , para. 54. 266 Impugned Decision , para. 66. 267 Impugned Decision , para. 68. 268 Impugned Decision , para. 68. 269 Impugned Decision , para. 68. 270 Appeal Brief , para. 121.
No: ICC-01/21 OA 52/77
argument. The Philippines argued before the Pre-Trial Chamber that “the ‘lowly
officers’ identified as the actual perpetrators in alleged killings during anti -drug
op erations ‘are vital leads that may link higher -ranking officials as part of the chain of
271
command in the commission of the crimes’” . The Pre-Trial Chamber found that the
272 domestic proceedings did not extend to any high-ranking officials, despite the
273 above-mentioned expectation that such officials should be the focus. The Pre-Trial
Chamber made it clear that its assessment concerned the domestic proceedings
274
conducted “at present”. The M ajority notes in this respect that the Philippines only
argues that the identification of leads may facilitate the investigation of high-ranking
275 officials. However, the Philippines does not argue that any such investigation, based
on leads identified in this way, is being carried out “at present”.
162 Furthermore, the Pre- Trial Chamber indicated that its findings did not “preclude
the Philippines from providing material in the future in order for the Prosecution, or the
Chamber, to determine inadmissibility on the basis of complementarity, if and when
276
needed”. The Pre-Trial Chamber thus allowed for the possibility that the status of
domestic proceedings may change. The M ajority notes in this regard that this is without
prejudice to the question of whether the Statute actually allows a State to submit a
second request for deferral under article 18(2) or, rather, a challenge to the admissibility
277 of a case, when one has been initiated, as stipulated in article 18(7).
163 Regarding the Philippines ’ argument that the most responsible perpetrator may
278 be a low or mid-ranking official, the Appeals Chamber indeed previously noted that
“ individuals who are not at the very top of an organization may still carry considerable
influence and commit, or generate the widespread commission of, very serious
279
crimes ”. However, the M ajority observes that the Pre- Trial Chamber’s enquiry was
271 Impugned Decision , para. 67, quoting Philippines Article 18 Observations , para. 127. 272 Impugned Decision , paras 68, 93. 273 Impugned Decision , para. 68. 274 Impugned Decision , paras 68, 93. 275 Appeal Brief , para. 121. 276 Impugned Decision , para. 99. 277
Article 18(7) of the Statute reads: “A State which has challenged a ruling of the Pre -Trial Chamber
under this article may challenge the admissibility of a case under article 19 on the grounds of additional
significant facts or significant change of circu mstances”.
278 Appeal Brief , para. 122. 279
Situation in the Democratic Republic of the Congo , Judgment on the Prosecutor’s appeal against the decision of Pre- Trial Chamber I entitled “Decision on the Prosecutor’s Application for Warrants of Arrest, Article 58” , 13 July 2006, ICC-01/04-169 (OA), para. 77.
No: ICC-01/21 OA 53/77
whether the domestic proceedings sufficiently mirror the Prosecutor’s intended
investigation. M ore specifically, in light of the fact that the Prosecutor’s intended
investigation concerns alleged crimes against humanity, the Pre-Trial Chamber 280 expected the domestic proceedings to focus on high-ranking officials. Furthermore, in relation to the contextual elements of the alleged crimes against humanity, the
Pre-Trial Chamber noted that “the Philippines does not contest the Prosecution’s
suggestion that it has failed to inquire into any pattern of criminality or the systematic 281
nature of crimes” . Given the above, the M ajority finds that the Philippines has failed
to show any error on the part of the Pre-Trial Chamber in this regard.
(2) Investigations of vigilantes
(i) Summary of the submissions 164. The Philippines submits that the Pre-Trial Chamber erred in finding that no material provided by the Philippines suggested that the Philippines investigated the
killings outside of police operations, as, in the Philippines ’ view, such killings “ still had
282
some link to law enforcement ”. The Philippines argues that “[t]he investigation of
law enforcement officials by the Philippine Government is therefore also a means to identify leads in relation to the role of law enforcement in killings conducted outside of 283
police operations”. However, the Philippines states that “[t]he fact that conduct or
categories of perpetrators are not yet clearly defined is again reflective of the stage of 284
the investigation”. Referring to the domestic proceedings with respect to the Davao
Death Squad – an alleged vigilante group connected to extrajudicial killings, the
Philippines contends that the Pre-Trial Chamber applied “a much higher standard to
assess the degree of overlap between the domestic and Prosecution investigations than 285
is warranted in article 18 context”.
165 In his response to the Appeal Brief, the Prosecutor submits that the Philippines asserts for the first time expressly that the killings outside of police operations had some 286 link to law enforcement. He contends that the Philippines is inaccurate to claim that
280 Impugned Decision , para. 68. 281 Impugned Decision , para. 67. 282 Appeal Brief , paras 124-125. 283 Appeal Brief , para. 125. 284 Appeal Brief , para. 125. 285 Appeal Brief , paras 126-128. 286
Prosecutor ’s Response , para. 130.
No: ICC-01/21 OA 54/77
the Pre- Trial Chamber’s “alleged ‘failure to take into account the material connected to
the Davao Death Squad can only be explained by virtue of its application’ of an overly
287
strict standard ” . The Prosecutor argues that the Philippines “overlooks that the
[Pre-Trial] Chamber did not ignore domestic proceedings concerning the alleged Davao
Death Squad Killings […] but expressed concerns about the specificity and probative
288
value of the material provided ” . He notes that the Ombudsman’s investigation
referred to by the Philippines relates to the alleged killings which fall outside the
temporal scope of the Court’s investigation and that it appeared to be an administrative
289 proceeding.
(ii) Determination by the Appeals Chamber
166 In its discussion of the “[k]illings outside police operations”, the Pre -Trial
Chamber addressed the issue of whether the Philippines provided sufficient information about past or ongoing investigations or prosecutions relating to killings outside police
operations. In this regard, the Pre- Trial Chamber found that the Philippines “ha[d] not
provided any material that would suggest it ha[d] investigated alleged killings related 290
to the ‘war of drugs’ that did not take place as part of police operations”. The
Pre- Trial Chamber noted that “the part of the authorised investigation concerning
291
privat e individuals does not appear to be covered by any domestic investigations”,
whereas the Article 15 Decision extended the authorisation to cover the killings by 292 private individuals outside law enforcement operations. In particular, the Article 15 Decision referred to thousands of alleged killings committed outside the context of the 293 official police operations.
167 The Philippines’ argument that the investigation of law enforcement officials may
help identify leads in relation to the role of law enforcement in killings conducted 294 outside of police operations is not persuasive. Similar to its submissions on the investigations of senior officials, discussed above, the Philippines did not provide
287
Prosecutor ’s Response , para. 131. See also paras 87-103.
288
Prosecutor ’s Response , para. 131.
289
Prosecutor ’s Response , para. 131.
290 Impugned Decision , para. 65. 291 Impugned Decision , para. 65. 292 Impugned Decision , para. 65. 293 Article 15 Decision , paras 61-66. See also Article 15 Request , para. 65. 294 Appeal Brief , para. 125. No: ICC-01/21 OA 55/77
material showing that such leads were in fact identified or that domestic proceedings extending to the killings outside of police operations are conducted at present. On the
contrary, the Philippines concedes that “ the conduct or categories of perpetrators are
not yet clearly defined”, which , in its view, “is […] reflective of the stage of the
295
investigation”.
168 The Philippines submits that it provided material concerning the extrajudicial 296 killings attributed to the Davao Death Squad. The Pre-Trial Chamber found in this regard that: (i) most of the proceedings with respect to those killings related to events 297
that fall outside the temporal scope of the Court’s investigation, (ii) it was not clear
whether some of those domestic proceedings were conducted in support of criminal 298 prosecutions, and (iii) some of the material provided in support fell short of the 299 required standard of specificity and probative value.
169 The Philippines did not provide any other examples of domestic proceedings concerning the killings outside law enforcement operations. Therefore, the M ajority finds that the Philippines has failed to demonstrate that the Pre-Trial Chamber erred in finding that the Philippines had not provided any material showing that it investigated 300 the alleged killings outside of police operations.
(3) Davao killings
(i) Summary of the submissions 170. The Philippines submits that the Pre-Trial Chamber dismissed the material which demonstrated that domestic investigations had been conducted in relation to the killings 301 in Davao in the period 2011 to 2016. The Philippines argues that the Pre-Trial
Chamber criticised the Philippines’ use of media articles to demonstrate the existence
of on-going investigations and prosecutions, despite the fact that the Prosecutor had 302 relied on similar media sources in the Article 15 Request. The Philippines also
submits that “[r]egardless of the source of material at this stage, the information relied
295 Appeal Brief , para. 125. 296 Appeal Brief , para. 127. 297 Impugned Decision , para. 57. 298 Impugned Decision , para. 59. 299 Impugned Decision , paras 56, 58. 300 Impugned Decision , para. 65. 301 Appeal Brief , para. 129. 302 Appeal Brief , para. 130. No: ICC-01/21 OA 56/77
upon by the Philippine Government showed that aspects of its investigations did overlap with the broad nature of the Prosecu tion’s investigations concerning alleged 303 killings in Davao”. The Philippines argues that “[i]t is the prima facie existence of the investigation which must be assessed at this stage” and that the Pre -Trial Chamber applied “a higher standard than is warra nted when determining an article 18(2) 304 application”.
171 In his response to the Appeal Brief, the Prosecutor contends that the Philippines incorrectly asserts that the Pre-Trial Chamber applied a stricter standard than permitted, and that the Philippines “essentially argues that the Court must accept the Philippines’ word and not require evidence”, which is “inconsistent with the evidence -driven, 305 objective approach which is fundamental to any kind of analysis under article 17”. He also submits that the Pre- Trial Chamber “reasonably rejected” the Philippines’ additional reliance on media articles, and that “it shows no error to point to the fact that the Prosecution had relied on media articles for a different purpose” in its Art icle 15 306 Request. As a result, the Prosecutor argues that the Pre- Trial Chamber was “neither incorrect nor unreasonable in finding that the Philippines has not taken sufficient tangible, concrete and progressive steps towards investigating alleged crimes in 307 Davao”.
(ii) Determination by the Appeals Chamber 172. In its discussion of the “[c]rimes in Davao region”, the Pre -Trial Chamber addressed the issues of whether “the Philippines failed to identify any investigative steps or prosecutions with regard to the hundreds of alleged killings committed during 2011- 2016 in the city of Davao”, and whether “this failure alone justifies the 308 resumption of the Court’s investigation”. The Pre-Trial Chamber recalled that “according to the list of 176 murder incidents reco rded by the Davao City Police Office in the period 2011- 2016, and the explanation provided in the [Philippines’] Observations, 168 of those incidents did give rise to a case before a court, among those,
303 Appeal Brief , para. 131. 304 Appeal Brief , para. 131. 305 Prosecutor ’s Response , para. 135. 306 Prosecutor ’s Response , para. 135. 307 Prosecutor ’s Response , para. 136. 308 Impugned Decision , para. 50. No: ICC-01/21 OA 57/77
309 51 have been solved and eight are under investigation ”. The Pre-Trial Chamber noted that the list does not contain (i) any information allowing it to identify “whether any of the 176 incidents listed correspond to the killings referred to in the Article 15 Decision” and (ii) information about “the status o f the 109 cases that are not identified as resolved 310 or under investigation”. As a result, the Pre-Trial Chamber concluded that the material submitted lacked the required degree of specificity and probative value, despite the fact that “[t]he Philippines’ authorities have access to official documents and are in 311 a position to provide detailed information on their domestic proceedings”.
173 The Pre-Trial Chamber referred to other mechanisms relied upon by the Philippines, including the 2009 investigation by the Commission on Human Rights (hereinafter : “CHR”) into the vigilante killings in Davao City, the Ombudsman disciplinary process against 21 Philippine National Police (hereinafter: “PNP”) officers for failure to resolve the killings in Davao City, the 2012 CHR Resolution entitled “Extra -Judicial Killings Attributed or Attributable to the so-called Davao Death 312 Squad”, and the Field Investigation Office’s Fact Finding Report. The Pre-Trial Chamber held that “most of [these mechanisms] concern events that oc curred in Davao prior to 2011 and, as such, fall outside of the temporal scope of the investigation as authorised in the Article 15 Decision” and that, as a result, it wa s “not necessary to 313 consider whether those mechanisms can show the existence of invest igations” .
174 W ith respect to the Senate enquiries, the Pre-Trial Chamber noted that the “inquiries carried out by political bodies may be relevant to assess investigative activity, but only if they are carried out with a view to conducting criminal (investigations and) 314 prosecutions”. However, the Pre-Trial Chamber found that it was not clear what investigative measures were undertaken, and that the Philippines “[did] not suggest that the inquiries considered the criminal responsibility of individuals, or were conducted 315 in support of criminal prosecutions”.
309 Impugned Decision , para. 55; Article 15 Decision , para. 69. 310 Impugned Decision , para. 55. 311 Impugned Decision , para. 56. 312 Impugned Decision , para. 57, referring to Philippines Article 18 Observations , para. 113. 313 Impugned Decision , para. 57. 314 Impugned Decision , para. 59. 315 Impugned Decision , para. 59. No: ICC-01/21 OA 58/77
175 The Pre-Trial Chamber also noted that “several media articles are relied on to substantiate the existence of investigative mechanisms” in the material provided by the Philippines, and observed that “a State ought to be in a position to present material with 316 a higher probative value to substantiate its actions”.
176 The Philippines argues that the Pre-Trial Chamber failed to take into account the material upon which the Philippines relied, and that this failure “can only be explained by virtue of its application of a much higher standard […] than is warranted in an 317 article 18 context”. The M ajority notes, however, that the Pre-Trial Chamber rejected part of the material regarding the Davao Death Squad, because the events in question 318 fell outside the temporal scope of the Court’s authorised investigation.
177 Regarding other domestic proceedings, the Pre-Trial Chamber expressed concerns about the relevance of the list of murder incidents recorded by the Davao City Police Office and relied upon by the Philippines. Indeed, the document merely lists “ M urder Cases between 2011-June 30, 2016 ”, dates of commission and information on 319 whether the cases were “cleared” and “solved”. The M ajority therefore considers that the Pre-Trial Chamber reasonably found that the list did not allow it to identify whether the listed murder cases corresponded to the killings referred to in the Article 15 320 Decision, nor to ascertain the status of those cases.
178 The Philippines also argues that the Pre-Trial Chamber erroneously criticised the Philippines’ use of media articles , noting that the Prosecutor also relied on media 321 sources in the Article 15 Request. The Prosecutor avers in his Response to the Appeal 322 Brief that the Article 15 Request relied on media articles for a different purpose.
179 The Pre- Trial Chamber took note of the Philippines’ reliance on “several media articles” and concluded that “material with a higher probative value” ought to have been 323 provided. The M ajority considers that a State is indeed in a position to present official
316 Impugned Decision , para. 58. 317 Appeal Brief , para. 128. 318 Impugned Decision , para. 57. 319 Annex K to Philippines Article 18 Observations . 320 Impugned Decision , para. 56. 321 Appeal Brief , para. 130. 322 Prosecutor ’ s Response , para. 135; Appeal Brief , para. 130. 323 Impugned Decision , para. 58. No: ICC-01/21 OA 59/77
material with a higher probative value than media articles to substantiate the existence of investigative mechanisms.
180 The M ajority further notes that with respect to the Philippines’ reliance on media
articles in its Article 18 Observations concerning the alleged killings in the Davao 324 region, at least one of them concerns the events which the Pre-Trial Chamber found 325
to fall outside the temporal scope of the Court’s authorised investigations ; two others
326 concern the proceedings for which the Philippines also provided official sources; and 327 one of them relates to an investigation by the DOJ, which, in the view of the Pre-Trial
Chamber, “ does not amount to relevant investigations within the meaning of
328
article[s] 17 and 18 of the Statute” , and would be of limited significance to the
Pre- Trial Chamber’s enquiry as it was in fact “shelved” , according to the Philippines’
329 Article 18 Observations.
181 In light of the foregoing, the M ajority considers that it was not unreasonable for the Pre-Trial Chamber to conclude that the Philippines ought to have presented material with a higher probative value, rather than relying solely on media articles, to substantiate the existence of investigations.
182 As a result, t he Majority rejects the Philippines’ arguments w ith respect to the
alleged killings in Davao.
(4) Other crimes
(i) Summary of the submissions 183. The Philippines submits that although it enumerated its investigations of crimes
other than murder, the Pre- Trial Chamber erroneously found that “[t]he limited number
of cases mentioned by the Philippines, and the type of persons charged, means that
these cases cannot represent the range and scope of crimes of the Court’s
330
investigation”. The Philippines contends that “there is no specific detail concerning
324 Philippines Article 18 Observations , fns 120, 122, 126, 129. 325 Philippines Article 18 Observations , fn. 120. 326 Philippines Article 18 Observations , fns 122, 126. 327 Philippines Article 18 Observations , fn. 129. 328 Impugned Decision , para. 35. 329 Philippines Article 18 Observations , para. 106. 330 Appeal Brief , paras 132-133, 135, referring to Philippines Article 18 Observations , paras 121-122, 124, Impugned Decision , para. 63. No: ICC-01/21 OA 60/77
the commissi on of ‘other crimes’ in either the Article 15 Request or the Article 15
331 Decision”. It argues that in the absence of such detail, “it is almost impossible for the
332 Philippine Government to meet the Pre- Trial Chamber’s erroneous demands”.
184 In his response to the Appeal Brief, the Prosecutor submits that the Philippines
333 misunderstands the analysis required by article 18. In particular, he argues that the
standard applied by the Pre-Trial Chamber was that the Philippines’ investigation
334 “sufficiently rather than ‘substantially’ mirrored the Court’s investigation”. The
Prosecutor contends that on the basis of the Article 15 Request, the Philippines had
“adequate notice of the range and scope of additional crimes which may form part of
the Court’s investigation” and consequently, “was in a position to provide information
335 of criminal proceedings”. Regarding the Pre- Trial Chamber’s assessment of the
specific material provided by the Philippines in support of its contentions, the
Prosecutor submits that “[g]ive n the nature and scale of the alleged events forming the
context of the Court’s investigation, the Chamber’s conclusion that the remaining
domestic proceedings were insufficient for the purpose of article 18(2) […] was entirely
336 reasonable”.
(ii) Determination by the Appeals Chamber
185 At the outset, the M ajority notes that in the Article 15 Request, the Prosecutor
requested that any authorised investigation also include “other crimes” sufficiently
337 linked to the “w ar on drugs ” campaign. Referring to the alleged beatings and other
mistreatment, the Prosecutor stated that “[s]uch conduct may constitute the additional
Crimes Against Humanity of Torture or Other Inhumane Acts under articles 7(1)(f) and
338 (k) of the Statute ”. When authorising the Prosecutor’s investigation, the Pre -Trial
Chamber indicated that the investigation could “ extend to any crime within the
339 jurisdiction of the Court ”.
331 Appeal Brief , paras 134, 135. 332 Appeal Brief , para. 136. 333 Prosecutor ’s Response , para. 139. 334 Prosecutor ’s Response , para. 139 (emphasis in original omitted). 335 Prosecutor ’s Response , para. 139, referring to Impugned Decision , para. 61, fn. 154, citing Article 15 Request , para. 129. 336 Prosecutor ’s Response , para. 141. 337 Article 15 Request , para. 129. 338 Article 15 Request , para. 129. 339 Article 15 Decision , para. 118.
No: ICC-01/21 OA 61/77
186 W hen seeking the Pre- Trial Chamber’s authorisation to resume the investigation, fol lowing the Philippines’ request for deferral, the Prosecutor provided further information on “other potential crimes”, indicating that they may also constitute crimes 340 under article 7(1)(e), (i) and (g) of the Statute.
187 The Pre-Trial Chamber acknowledged this , stating that “the Prosecution had noted allegations of acts that may constitute torture or other inhumane acts under article 7(1)(f) and (k) of the Statute, imprisonment or other severe deprivation of liberty under article 7(1)(e) of the Statute; enforced disappearance under article 7(1)(i) of the 341 Statute; and [sexual and gender- based crimes] under article 7(1)(g) of the Statute”.
188 Recalling that it had authorised the investigation to extend to any crime within the jurisdiction of the Court, the Pre- Trial Chamber concluded that “[t]he limited number of cases mentioned by the Philippines, and the type of persons charged, means that these cases cannot represent the range and scope of crimes of the Court’s 342 investigatio n”. In reaching this conclusion, the Pre- Trial Chamber assessed “four specific cases, a ‘partial listing’ of cases on the NPS’s docket, and a resolution dated 343 27 November 2020”, relied upon by the Philippines in its Article 18 Observations. It found th at “[o]ne of the cases […], and the events covered by the NPS Consolidated Resolution […] concern events that fall outside the temporal scope of the authorised 344 investigation”. Further, “in only two occasions a crime other than murder was pursued, and in only one case actual charges for a crime other than murder were 345 brought”.
189 The cases to which the Philippines referred in its Article 18 Observations were the following: (i) the arrest of a police officer of the M anila Police District accused of 346 raping a 15-year-old girl; (ii) the dismissal of a former chief of the Philippine 347 National Police Custodial Service Unit due to an alleged sexual assault complaint;
340 Prosecutor ’s Article 18(2) Request , para. 99. 341 Impugned Decision , fn. 154. 342 Impugned Decision , para. 63. 343 Impugned Decision , para. 61 (footnotes omitted), referring to Philippines Article 18 Observations , paras 121-124. 344 Impugned Decision , para. 63. 345 Impugned Decision , para. 63. 346 Philippines Article 18 Observations , para. 121. 347 Philippines Article 18 Observations , para. 122. No: ICC-01/21 OA 62/77
(iii) investigations related to anomalous secret jails uncovered by the CHR in 2017 and 348 related charges against M etro M anila police officers; and (iv) charges of unlawful arrest, false testimony and violation of the Republic Act No. 9165 brought against 349 police officers involved in a buy-bust operation.
190 Furthermore, the Philippines cited a partial listing of cases in the NPS’ dockets,
which, in its view, “ clearly showed that investigations were conducted against police
350
officers with respect to their conduct of anti- illegal drug operations”. Lastly, it
claimed that additional cases had been filed against police officers concerning resisting
arrest cases, while 250 additional incidents were “still undergoing the required review
351
process to ensure that any incident recommended for prosecution will stand trial”.
(a) Alleged lack of detailed notice 191. The Philippines argues that no specific detail of other crimes was included in
either the Article 15 Request or the Article 15 Decision, making it “almost impossible”
352
for the Philippine Government to meet the Pre- Trial Chamber’s demands. The
M ajority notes that the Prosecutor’s Article 15 Request and the Pre - Trial Chamber’s
Article 15 Decision do not provide detail of all crimes other than murder which the Prosecutor intends to investigate. The Prosecutor only referred to alleged beatings and
other mistreatment, as well as the “ instances in which victims’ family members were
353
forced to witness the killings”. However, in his Article 18(2) Request, the Prosecutor
provided more detail. He referred to instances of imprisonment or other severe deprivation of liberty under article 7(1)(e), enforced disappearance under article 7(1)(i) 354 and rape or other sexual violence under article 7(1)(g) of the Statute. As evidenced by the content of its Article 18 Observations, the Philippines appeared to be sufficiently
informed of the focus of the Prosecutor’s authorised investigation. Indeed, the
Article 18 Observations refer to allegations of crimes similar to the ones listed in the
Prosecutor’s documents.
348 Philippines Article 18 Observations , para. 123. 349 Philippines Article 18 Observations , para. 124. 350 Philippines Article 18 Observations , para. 125. 351 Philippines Article 18 Observations , para. 126. 352 Appeal Brief , paras 134-136. 353 Article 15 Request , para. 129. 354
Prosecutor ’s Article 18(2) Request , para. 99.
No: ICC-01/21 OA 63/77
192 The M ajority further notes that in his Article 18(2) Request, the Prosecutor provided examples of crimes which he intends to investigate. He referred to:
(i) detention of victims by police “for hours or days […] in official or unofficial prisons
without charges, without access to counsel”, in some cases as part of so- called “One
Time Big Time” operations; (ii) “refusals by the police to acknowledge the arrest or
abduction or to provide information regarding the fate or whereabouts of the victims”;
and (iii) “accounts of rape of women and girls prior to their murder, and allegations that
some female family members of potential victims were forced to perform sexual acts 355
in exchange for promises that their loved ones would be spared”.
193 In view of the foregoing, the Majority rejects the Philippines’ argument that due
to an alleged insufficiently detailed notice it was unable to provide information on the relevant domestic proceedings.
(b) Specific cases referred to in the Article 18 Observations 194. In its Article 18 Observations, the Philippines relied on an online press article reporting that a police officer was arrested on suspicion of rape, and that a police chief 356 director ordered the filing of criminal and administrative cases against him. Although
the Pre- Trial Chamber was concerned about the “deficient support” for the Philippines’
contention that the Philippines had prosecuted police officers as a result of its investigation of crimes other than murder which appeared to have been committed in connection with anti-drug operations, it appears to have acknowledged that in two 357
occasions, prosecution of “a crime other than murder was pursued”.
195 In its Article 18 Observations, the Philippines also relied on an online press article about the dismissal of a former chief of the PNP Custodial Centre from the service due 358 to an alleged sexual assault complaint. Noting that the supportive material for this incident suggests that the assault occurred in June 2020, the Pre-Trial Chamber
355
Prosecutor ’s Article 18(2) Request , para. 99.
356
Philippines Article 18 Observations , para. 121, referring to R. Galupo, ‘Cop nabbed for rape of girl, 15’ on PhilStar Global (29 October 2018), https://www.philstar.com/nation/2018/10/29/1864004/cop-
nabbed-rape-girl-15 . 357 Impugned Decision , para. 63. 358
Philippines Article 18 Observations , para. 122, referring to G. Pabico Lalu, ‘Ex -chief of PNP Custodial Center dismissed due to Parojinog sexual assault case’ on Inquirer.net (6 October 2021),
https://newsinfo.inquirer.net/1498178/pnps-ex-custodial-center-head-dismissed-from-service-afterparojinogs-sexual-assault-complaints . No: ICC-01/21 OA 64/77
concluded that the incident falls outside the temporal scope of the authorised
359 investigation.
196 Furthermore, the Philippines relied on an online press article reporting that in
2017, the CHR had discovered that a dozen men and women were detained in a secret
cell behind the M anila police station, but that the charges against the police officers
who were purportedly involved in the illegal detention were later dismissed by the
360 Ombudsman for lack of probable cause. In the Impugned Decision, the Pre-Trial
Chamber referred to the Prosecutor’s argument that the Philippines did not substantiate
361 that concrete investigative steps were taken in this instance. The Pre-Trial Chamber
also appears to have concluded that this case was none of the three cases in which a
362 crime was pursued or charges were brought.
197 Relying on the “Review Resolution”, the Philippines, i n its Article 18
Observations, described a case against eight police officers for unlawful arrest, perjury
363
and violation of the Republic Act No. 9165. According to the “Review Resolution”,
364 a national prosecutor recommended the filing of the resolution with court. In the
Impugned Decision, the Pre-Trial Chamber appears to have referred to this case as one
365 of the two cases in which charges were brought.
198 Referring to a list of cases in the NPS’ dockets and a “Joint Resolution”, the
Philippines submitted that investigations were conducted with respect to 13 incidents
366 involving police officers. Regarding the cases in the dockets of the NPS, the Pre-Trial
Chamber observed that there was only one on-going case involving a crime other than
367
murder, where one of the charges was torture. The “Joint Resolution” concerned
359 Impugned Decision , para. 63, fn. 166. 360
Philippines Article 18 Observations , para. 123, referring to A. Balagtas See, ‘Drug suspects found in secret police cell’ on Inquirer.net (27 April 2017), https://newsinfo.inquirer.net/892537/drug-suspects-
found-in-secret-police-cell . 361 Impugned Decision , para. 62. 362 Impugned Decision , paras 61, 63. 363 Philippines Article 18 Observations , para. 124, referring to Review Resolution, 13 M ay 2022 (Annex L to Philippines Article 18 Observations ). 364 Annex L to Philippines Article 18 Observations , p. 9. 365 Impugned Decision , paras 61, 63. 366 Philippines Article 18 Observations , para. 125, referring to PHL-OTP-0008-0046 (Annex A to the
Philippines’ letter of 22 December 2021), Joint Resolution, 27 Novem ber 2020 (Annex M to Philippines
Article 18 Observations ). 367
Impugned Decision , para. 63, fn. 168, referring to PHL-OTP-0008-0046 (Annex A to the Philippines’
letter of 22 December 2021), entry no. 10.
No: ICC-01/21 OA 65/77
complaints against police officers for kidnapping/serious illegal detention with murder 368 allegedly committed in February 2020. In the Impugned Decision, the Pre-Trial Chamber found that the resolution concerned events falling outside the temporal scope 369 of the authorised investigation.
199 In its Article 18 Observations, the Philippines argued that an “additional 250
incidents” had been re ferred to the NBI by the DOJ for review “to ensure that any
370
incident recommended for prosecution will stand trial”. The Pre-Trial Chamber,
however, noted in this regard that no material was provided to demonstrate that the Philippines was indeed investigating or prosecuting these cases. Consequently, it was 371 not satisfied that this in and of itself amounted to a concrete investigative step.
(c) Conclusion on alleged errors in the Pre-Trial
Chamber’s assessment concerning the contours of
the investigation of other crimes 200. The M ajority finds that the Philippines has not demonstrated that the Pre-Trial
Chamber erred in finding that “[t]he limited number of cases mentioned by the
Philippines, and the type of persons charged, means that these cases cannot represent 372
the range and scope of crimes of the Court’s investigation”. The above review of the
relevant material shows that although the Philippines had received sufficient notice of the crimes, other than murder, which the Prosecutor intends to investigate, it provided information only on a few relevant cases in which charges were brought or the alleged
crime was prosecuted. Accordingly, the M ajority rejects the Philippines’ arguments in
this regard.
(5) Conclusion on alleged errors in the Pre- Trial Chamber’s
assessment concerning the contours of the investigation
201 In light of the foregoing, the M ajority rejects this part of the third ground of appeal. As discussed in the beginning of this section, these essentially factual errors raised by the Philippines are alleged to be a result of the general legal error of applying too high a threshold of substantiating the existence of domestic investigations and
368 Annex M to Philippines Article 18 Observations , p. 3. 369 Impugned Decision , para. 63, fn. 167. 370 Philippines Article 18 Observations , para. 126. 371 Impugned Decision , para. 84, referring to Philippines Article 18 Observations , para. 126. 372 Impugned Decision , para. 63. No: ICC-01/21 OA 66/77
373 prosecutions, as well as too high a standard to assess the degree of overlap between 374 the domestic and Prosecution investigations. The M ajority finds that by failing to show instances in which the Pre-Trial Chamber allegedly applied the wrong threshold or standard, the Philippines has also failed to demonstrate the alleged legal error.
iii. Overall conclusion on ground of appeal 3
202 Having rejected the totality of the Philippines’ arguments regardin g the
application of the alleged erroneous admissibility test and the examples of alleged erroneously assessed domestic proceedings, the M ajority rejects ground of appeal 3.
E. Ground of appeal 4: Alleged error in failing to examine the two factors under article 17 of the Statute
203 Under ground of appeal 4, the Philippines alleges that the Pre- Trial Chamber’s
finding that it was not satisfied that the Philippines is making “a real or genuine effort”
to carry out investigations and prosecutions is not based on any actual assessment, and that the Pre-Trial Chamber failed to consider whether the situation is not of sufficient 375 gravity.
1 The Pre- Trial Chamber’s failure to consider the Philippines’
willingness and ability to carry out the investigation
i. Relevant part of the Impugned Decision
204 The Pre-Trial Chamber, in the Impugned Decision, applied a two-pronged approach in its assessment under article 17 of the Statute as follows:
[F]or the purposes of article 17(1)(a) and (b), ‘the initial questions to ask are
(1) whether there are ongoing investigations or prosecutions, or (2) whether there have been investigations in the past, and the State having jurisdiction
has decided not to prosecute the person concerned’. Only when both
questions are answered in the affirmative, should a chamber consider whether a State is unwilling and unable to genuinely carry out any such investigation or prosecution pursuant to article 17(2) and 17(3) of the Statute. Inaction by the State having jurisdiction means that the question of
373 Appeal Brief , paras 90, 96, 98-99, 111. 374 Appeal Brief , paras 120, 123, 128, 131, 136. 375 Appeal Brief , paras 141-162. No: ICC-01/21 OA 67/77
unwillingness or inability does not arise, and a case would be admissible 376 before the Court.
205 Having examined material regarding various domestic initiatives and
proceedings, the Pre- Trial Chamber concluded that they “do not amount to tangible,
concrete and progressive investigative steps being carried out with a view to conducting
criminal proceedings, in a way that would sufficientl y mirror the Court’s
377
investigation”.
206 The Pre-Trial Chamber determined as follows:
[W ]hilst the Chamber found that in some instances investigative steps have been taken or are ongoing, albeit only with regard to low-ranking law enforcement personnel, it remains that the totality of the national investigations and proceedings presented to the Chamber do not sufficiently,
or at all, mirror, the Court’s investigation. The Chamber is therefore not
satisfied that the Philippines is undertaking relevant investigations, or is making a real or genuine effort to carry out such investigations and any subsequent criminal prosecutions, that would warrant a deferral of the 378
Court’s investigations as per article 18(2) of the Statute.
ii. Summary of the submissions
207 The Philippines submits that, although the Pre-Trial Chamber stated that it was
not satisfied that the Philippines is making “a real or genuine effort” to carry out
379 investigations and prosecutions, this finding is not based on any actual assessment.
The Philippines argues that the two-pronged approach in relation to the inactivity limb 380 and unwillingness/inability limb is not clearly delineated. Referring to article 18(3)
and 18(5) of the Statute, as well as rule 55(2) of the Rules, the Philippines contends that
the willingness and ability of a State to genuinely carry out the investigations must 381 always be considered in article 18 proceedings. The Philippines refers to the
Afghanistan OA4 Judgment, which, in its view, shows that “the specific procedural
mechanisms in relation to admissibility assessments have been designed for distinct
376 Impugned Decision , para. 11 (footnote omitted), quoting The Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui , Judgment on the Appeal of M r. Germain Katanga against the Oral Decision of Trial Chamber II of 12 June 2009 on the Admissibility of the Case , 25 September 2009, ICC-01/04-
01/07-1497 (OA8) (hereinafter: “ Katanga OA8 Judgment ”) , para. 78.
377 Impugned Decision , para. 96. 378 Impugned Decision , para. 98. 379 Appeal Brief , paras 143-145 (emphasis in original omitted). 380 Appeal Brief , para. 146. 381
Appeal Brief , paras 148-151; Reply to the Prosecutor ’s Response , para. 27.
No: ICC-01/21 OA 68/77
purposes and stages”, and that the two -step assessment designed for article 19
382 proceedings is inapplicable in the context of article 18 proceedings. The Philippines
avers that the Pre-Trial Chamber ignored the facts that the Philippines has a functioning
criminal justice system that incorporated article 5 crimes and that the Philippine
383 Government cooperated with the Prosecutor.
208 In his response to the Appeal Brief, the Prosecutor argues that the Philippines
takes the Pre- Trial Chamber’s “incidental use of the term ‘genuine’ out of context” and
that “this remark does not mean that the Chamber found the Philippines’ proceedings
384
to lack genuineness under article 17(2) and (3)”. The Prosecutor submits that the
Pre-Trial Chamber correctly endorsed the two-step process for assessing
385 complementarity under article 17 of the Statute, applicable to other procedural stages.
He contends that the Pre-Trial Chamber correctly did not apply article 17(2) and (3) of
the Statute because it found that the Philippines was inactive and its proceedings did
386
not sufficiently mirror the Court’s investigation. The Prosecutor argues that, while
the factors relevant to determination of inaction may also be relevant to assessment of
unwillingness or inability, this “ does not mean that the Chamber needs to always assess
387
the latter when it has found the former”.
209 The OPCV submits that the Pre-Trial Chamber correctly limited itself to
concluding, on the basis of the assessment of the evidence before it, that the Philippines
388 took no action. The OPCV avers that having so concluded, the Pre-Trial Chamber
did not need to further address the willingness or ability of the Philippines to carry out
389 genuine proceedings. It contends that the Pre-Trial Chamber correctly relied on the
390 jurisprudence regarding the two-step analysis for a determination of admissibility.
210 The V ictims submit that the Philippines’ argument “contradicts categorical
rulings made by the Court in other cases” as they consider that “[b]efore an assessment
382
Reply to the Prosecutor ’s Response , paras 23-26.
383 Appeal Brief , paras 152-153. 384
Prosecutor ’s Response , paras 147, 150.
385
Prosecutor ’s Response , paras 151-152.
386
Prosecutor ’s Response , paras 147, 151, 153.
387
Prosecutor ’s Response , para. 156.
388 OPCV Observations , para. 64. 389 OPCV Observations , para. 64. 390 OPCV Observations , paras 65-67.
No: ICC-01/21 OA 69/77
of unwillingness or inability is made to determine whether or not a case is inadmissible, there must first be a determination of the existence of an investigation or prosecution 391
of the case”.
iii. Determination by the Appeals Chamber
211 The M ajority recalls articles 17 and 18 of the Statute, as well as rule 55(2) of the Rules, as provided above. The M ajority further recalls the two-step analysis under article 17(1)(a) and (b) of the Statute to determine whether a case is inadmissible, as illustrated above.
212 The M ajority observes that the Philippines relies on the Afghanistan OA4 Judgment to argue that the two-step assessment for article 19 proceedings is 392 inapplicable in the context of article 18 proceedings.
213 In the Afghanistan OA4 Judgment, the Appeals Chamber examined the question of whether a pre-trial chamber is required to assess admissibility at different stages of
the proceedings, and concluded that at the stage of considering the Prosecutor’s
application for authorisation of an investigation under article 15 of the Statute, there is 393 no basis for the pre-trial chamber to consider admissibility. Contrary to the
Philippines’ contention, the Appeals Chamber did not make any pronouncement as to
which factors listed in article 17 of the Statute should be examined in the course of
article 18 proceedings. The M ajority therefore rejects the Philippines’ argument, as it
misreads the Afghanistan OA4 Judgment.
214 Turning to the Philippines’ argument that the Pre -Trial Chamber made a finding
394
on the genuineness of the Philippines’ domestic pr oceedings without any assessment,
the M ajority notes that the Pre-Trial Chamber found as follows:
[W ]hilst the Chamber found that in some instances investigative steps have been taken or are ongoing, albeit only with regard to low-ranking law enforcement personnel, it remains that the totality of the national investigations and proceedings presented to the Chamber do not sufficiently,
or at all, mirror, the Court’s investigation. The Chamber is therefore not
satisfied that the Philippines is undertaking relevant investigations, or is
391 Victims Representations, Annex 4, p. 12. 392
Reply to the Prosecutor ’s Response , paras 23-26.
393 Afghanistan OA4 Judgment , para. 40. 394 Appeal Brief , paras 143-145. No: ICC-01/21 OA 70/77
making a real or genuine effort to carry out such investigations and any subsequent criminal prosecutions, that would warrant a deferral of the 395
Court’s investigations as per article 18(2) of the Statute.
215 The Philippines appears to argue that the Pre-Trial Chamber, by stating that no
“real or genuine effort” was made, in fact made a finding on the Philippines’ willingness
and ability to carry out investigations. However, the M ajority considers that this finding of the Pre-Trial Chamber should be viewed in light of the two-step approach which the Pre-Trial Chamber applied:
[F] or the purposes of article 17(1)(a) and (b), ‘the initial questions to ask are
(1) whether there are ongoing investigations or prosecutions, or (2) whether there have been investigations in the past, and the State having jurisdiction
has decided not to prosecute the person concerned’. Only when both
questions are answered in the affirmative, should a chamber consider whether a State is unwilling and unable to genuinely carry out any such investigation or prosecution pursuant to article 17(2) and 17(3) of the Statute. Inaction by the State having jurisdiction means that the question of unwillingness or inability does not arise, and a case would be admissible 396 before the Court.
216 It is thus clear that the approach adopted by the Pre-Trial Chamber would require it to assess the willingness and ability of the domestic authorities to genuinely carry out an investigation or prosecution only if it first found that there were ongoing, or that there had been, investigations or prosecutions.
217 In the present situation, the Pre-Trial Chamber concluded that both questions were answered in the negative. Having examined the material regarding various
domestic initiatives and proceedings, it found that they “do not amount to tangible,
concrete and progressive investigative steps being carried out with a view to conducting
criminal proceedings, in a way that would sufficiently mirror the Court’s
397
investigation”. Consequently, the Pre-Trial Chamber did not examine the Philippine
Government’s willingness and ability to carry out the relevant investigations and
proceedings, which is consistent with the two-step approach set out in article 17 of the Statute, and the relevant jurisprudence.
395 Impugned Decision , para. 98. 396 Impugned Decision , para. 11 (footnote omitted), quoting Katanga OA8 Judgment , para. 78. 397 Impugned Decision , para. 96. No: ICC-01/21 OA 71/77
218 The Majority therefore rejects the Philippines’ argument that the Pre -Trial Chamber’s reference to “a real or genuine effort to carry out such investigations and 398 any subsequent criminal prosecutions” amounts to a finding on the Philippine Government’s willingness and ability to do so.
219 The Philippines also refers to rule 55(2) of the Rules, which requires the Pre-Trial Chamber to “consider the factors in article 17 in deciding whether to authorize an investigation” , and argues that the willingness and ability of a State to genuinely carry 399 out the investigations must always be considered in article 18 proceedings. The M ajority, however, recalls that the requirement in rule 55(2) of the Rules to “consider the factors in article 17” does not mean that a State’s willingness and ability to genuinely carry out investigations must always be considered in article 18 proceedings. In particular, such willingness and ability are “the second halves of sub -paragraphs (a) 400 and (b)” of article 17(1) of the Statute, and rule 55(2) does not expressly require the Pre-Trial Chamber to consider both halves of each of these sub-paragraphs of article 17(1). In addition, these second halves both begin with the word “unless”, which makes it clear that “th e question of unwillingness or inability is linked to the activities 401 of the State having jurisdiction”. The Philippines does not explain why this principle should apply differently to the proceedings under article 18 of the Statute. The M ajority therefore rejects this argument of the Philippines.
220 In support of its argument, the Philippines further refers to article 18(3) of the Statute, which provides that the Prosecutor’s deferral to a State’s investigation shall be open to review where “there has been a significant change of circumstances based on 402 the State’s unwillingness or inability genuinely to carry out the investigation”. In accordance with this procedure, the need for the Prosecutor’s review under article 18(3) of the Statute arises in cases wh ere, having been notified of the Prosecutor’s investigation, a State requests that the Prosecutor defer his investigation because that State itself is investigating or has investigated relevant crimes. However, the M ajority is not persuaded by this argument. The procedure to which the Philippines refers
398 Impugned Decision , para. 98. 399 Appeal Brief , paras 148-151; Reply to the Prosecutor’s Response , para. 27. 400 Katanga OA8 Judgment , para. 78. 401 Katanga OA8 Judgment , para. 76. 402 Appeal Brief , paras 148-149. No: ICC-01/21 OA 72/77
presupposes that the relevant investigations are being or have been carried out, whereas in the present circumstances, the Pre-Trial Chamber was not satisfied that this was the
case. The M ajority therefore finds that the Philippines’ reliance on this procedure is
inapposite.
221 Turning to the argument of the Philippines that the inactivity limb and 403
unwillingness/inability limb of the test are “ not clearly delineated ” , the M ajority
notes that the Philippines refers to the following ruling of Pre-Trial Chamber I:
The Chamber recognizes that the two limbs of the admissibility test, while distinct, are nonetheless intimately and inextricably linked. Therefore, evidence put forward to substantiate the assertion of ongoing proceedings covering the same case that is before the Court may also be relevant to demonstrate their genuineness. Indeed, evidence related, inter alia , to the appropriateness of the investigative measures, the amount and type of resources allocated to the investigation, as well as the scope of the investigative powers of the persons in charge of the investigation are relevant for both limbs since such aspects, which are significant to the question of
whether there is no situation of “ inactivity ” at the national level, are also relevant indicators of the State ’ s willingness and ability genuinely to carry
404 out the concerned proceedings.
222 The Majority notes that, contrary to the Philippines’ assertion, this ruling of
Pre-Trial Chamber I does not suggest that the two limbs of the admissibility test are not clearly delineated. It only refers to the possibility of relying on the same evidence to substantiate both limbs. However, Pre-Trial Chamber I made it clear that while
“ intimately and inextricably linked ”, the two limbs are nonetheless distinct. The
argument of the Philippines is therefore rejected.
223 In light of the foregoing, the M ajority finds that the Philippines has not
demonstrated that the Pre- Trial Chamber ought to have considered the Philippines’
willingness and ability to genuinely carry out the relevant investigation. Given its
conclusion on the Philippines’ inactivity with regard to the relevant crimes, it was
correct for the Pre-Trial Chamber not to consider the issue of the Philippines’
403 Appeal Brief , para. 146. 404 Pre-Trial Chamber I, The Prosecutor v. Saif Al-Islam Gaddafi and Abdullah Al-Senussi , Decision on the admissibility of the case against Abdullah Al-Senussi , 11 October 2013, ICC-01/11-01/11-466-Red, para. 210. No: ICC-01/21 OA 73/77
willingness and ability to investigate. The M ajority therefore rejects this part of ground of appeal 4.
2 The Pre- Trial Chamber’s alleged failure to consider gravity
i. Relevant part of the Impugned Decision
224 In the Impugned Decision, the Pre-Trial Chamber noted as follows:
[S] everal of the Philippines’ preliminary submissions show its disagreement with the Chamber’s findings in the Article 15 Decision. Yet, article 18
proceedings are not an avenue to re-litigate what has already been ruled on
as part of article 15 proceedings. The Philippines’ submission that the
situation is not of sufficient gravity to justify further action by the Court, for example, is merely based on the argument that there would not have been any widespread or systematic attack directed against any civilian population or that the crimes were not committed pursuant to a state policy, which the Chamber already considered and rejected for the purposes of the Article 15 405 Decision. The Chamber therefore rejects those arguments.
ii. Summary of the submissions
225 The Philippines argues that the Pre-Trial Chamber failed to consider whether the 406 situation is not of sufficient gravity. The Philippines submits that the Pre-Trial Chamber erred in law by deciding not to consider the potential gravity of the Philippines 407 Situation at this point in the proceedings. Referring to rule 55(2) of the Rules, the
Philippines argues that article 17(1)(d) of the Statute, governing gravity, “ had to be
408
considered by the Pre-Trial Chamber ”. According to the Philippines, gravity is
considered to be an essential component for the Court ’ s admissibility determination,
409
and as such “ is always a factor to be considered ”. It contends that the Pre-Trial
Chamber’s failure to consider gravity “ vitiates the entire reasoning of the Pre-Trial
410
Chamber ” a nd renders it incomplete.
226 In his response to the Appeal Brief, the Prosecutor argues that a determination under article 18 of the Statute is limited to complementarity matters, and does not
405 Impugned Decision , para. 25 (footnotes omitted). 406 Appeal Brief , paras 154-162. 407 Appeal Brief , para. 154. 408 Appeal Brief , para. 155. 409 Appeal Brief , para. 156. 410 Appeal Brief , para. 160.
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411 extend to gravity. In relation to rule 55(2) of the Rules, the Prosecutor submits that the Rules are “are an instrument for the application of the Rome Statute […], to which they are subordinate in all cases” and “should be read in conjunction with and subject 412 to the provisions of the Statute”. Furthermore, the Prosecutor asserts that he is always 413 required to assess gravity prior to the opening of an investigation, and that the Philippines takes paragraph 25 of the Impugned Decision “out of context” as it was part of the “ jurisdictional analysis under article 15(4), and not in the context of 414 article 17(1)(d) ”. Finally, the Prosecutor contends that in any event, the available information in connection with the “war on drugs” campaign indicates that the potential 415 cases within the situation are sufficiently grave.
227 The OPCV submits that the Pre-Trial Chamber did not commit any discernible error and correctly considered that the Philippines could not make use of article 18 of 416 the Statute to re-litigate the Article 15 Decision. The OPCV argues that it is the Prosecutor’s duty to assess the requirement of gravity when deciding to initiate an investigation, which had already been considered by the Prosecutor and was as such, “ outside of the scope of [the Pre- Trial Chamber’s] determination under article 18(2) of 417 the Statute ”.
iii. Determination by the Appeals Chamber
228 The Philippines submits that the Pre-Trial Chamber committed “a clear error of law” by declining to consider the potential gravity of the Philippines Situation at this 418 point in the proceedings. The M ajority notes, however, that the Pre-Trial Chamber did consider the Philippines’ arguments on gravity. In the Impugned Decision, t he Pre-Trial Chamber noted as follows:
[S] everal of the Philippines’ preliminary submissions show its disagreement with the Chamber’s findings in the Article 15 Decision. Yet, article 18 proceedings are not an avenue to re-litigate what has already been ruled on as part of article 15 proceedings. The Philippines’ submission that the
411 Prosecutor ’s Response , paras 158-159. 412 Prosecutor ’s Response , para. 160. 413 Prosecutor ’s Response , para. 161. 414 Prosecutor ’s Response , para. 162. 415 Prosecutor ’s Response , para. 163. 416 OPCV Observations , para. 68. 417 OPCV Observations , paras 69-70. 418 Appeal Brief , para. 154.
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situation is not of sufficient gravity to justify further action by the Court, for example, is merely based on the argument that there would not have been any widespread or systematic attack directed against any civilian population or that the crimes were not committed pursuant to a state policy, which the Chamber already considered and rejected for the purposes of the Article 15 419 Decision. The Chamber therefore rejects those arguments.
229 The M ajority observes that the above paragraph does not cover all potential
aspects of gravity of the Philippines Situation. Rather, the Pre- Trial Chamber’s finding
is limited to the arguments which the Philippines actually raised and which focused on the existence of a widespread or systematic attack and of a state policy. The M ajority
finds no error in the Pre- Trial Chamber’s approach to only address those issues of
gravity that the Philippines had actually raised before it.
230 The M ajority therefore rejects the argument of the Philippines that the Pre-Trial Chamber declined to consider gravity.
3 Conclusion 231. Having rejected or dismissed all arguments under ground of appeal 4, the M ajority rejects this ground of appeal in its entirety.
VI. APPROPRIATE RELIEF
232 In an appeal pursuant to article 82(1)(a) of the Statute, the Appeals Chamber may 420 confirm, reverse or amend the decision appealed. In the present case, the Appeals Chamber, by majority, Judge Perrin de Brichambaut and Judge Lordkipanidze dissenting, confirms the Impugned Decision.
Judge Perrin de Brichambaut and Judge Lordkipanidze append a joint dissenting opinion to this judgment.
419 Impugned Decision , para. 25 (footnotes omitted). 420 See rule 158(1) of the Rules. No: ICC-01/21 OA 76/77
Done in both English and French, the English version being authoritative.
_____________________________ Judge M arc Perrin de Brichambaut Presiding
_____________________________ _____________________________
Judge Piotr Hofmański Judge Luz del Carmen Ibáñez
Carranza
_____________________________ _____________________________ Judge Solomy Balungi Bossa Judge Gocha Lordkipanidze
Dated this 18th day of July 2023 At The Hague, The Netherlands
No: ICC-01/21 OA 77/77