Dear Drug Policy Reformer,

[image:1 align:right caption:true]This is a consequential time in so many ways. One is that tomorrow morning (probably before you read this), the Appeals Chamber of the International Criminal Court will decide whether the case against Philippine former president Rodrigo Duterte and maybe others for "crimes against humanity in the war on drugs" can continue.

Specifically, if the chamber upholds a prior ruling by the Pre-Trial Chamber, which found that the Court has the right to exercise jurisdiction in the Philippines despite the country's 2019 withdrawal from the treaty, the case will continue. If they overturn the ruling, the case will end, Duterte will go home, and other perpetrators will be off the hook, or at least the ICC wouldn't try them.

The announcement is scheduled for 11:00am Netherlands time (5:00am here in US Eastern), Wednesday April 22. Information, and links to watch (live or afterward), can be found online here.

I published two editorials about the jurisdictional question last year, in the well-known outlets Rappler and Just Security. I won't summarize all the main tracks of the discussion here, but the central debate is over what the Rome Treaty Article 12 on preconditions to jurisdiction and Article 127 on the terms of a state's withdrawal from the treaty mean in this situation. The whole record on the matter can be found in the "court records" section of the ICC's Philippines web site section.

The Duterte defense team – and two judges who dissented on a previous Appeal Chamber ruling – argue that Article 12's requirement that one or more states in a situation "are parties to this statute" means the Philippines had to still be in the treaty at the time of the ruling, because "are" is present tense. The prosecution and other supporters of the case say that Article 12 readily can refer to other times of relevance, and that Article 127's declaration that "matters already before the court shall not be prejudiced" – the matter in this case being a preliminary examination on the Philippines which prosecutors already had underway before withdrawal – means it refers to the time of the alleged crimes.

In my opinion, supporters of the case are unquestionably right on this point. The error that the defense team and even the two dissenting judges make, is in focusing on the meaning of "are". Whereas it's the words which follow – "Parties to this Statute" – where the temporal variability is found. It is easy to show that "Parties to this Statute" and similar terms refer to different times, depending on the context.

An example I provided in my editorials is that of the (ill-fated) 1955 Treaty of Amity between the US and Iran. After things went bad between the two governments, Iran invoked the treaty at the International Court of Justice, challenging the freezing by the US government of billions of dollars of Iranian funds. Despite the US having withdrawn from the treaty, the two states therefore no longer being "High Contracting Parties" to it, both governments agreed that the terms of the treaty still applied to them. It was clear from the context that "High Contracting Parties" in that context referred to former High Contracting Parties, despite that being nowhere specified in the treaty text. In the same way, "Parties to this Statute" can refer to different times, which means "are Parties to this Statute" can too.

Unfortunately, the Pre-Trial Chamber, while finding in favor of jurisdiction, conceded – incorrectly in my opinion – that Article 12 on its own would refer to the time of the ruling, not the time when the crimes were committed. In a response requested by the Appeals Chamber, prosecutors argued – in fact led with the argument – that the Pre-Trial Chamber was wrong on that specific point, despite agreeing with their ultimate decision. What the Pre-Trial Chamber found is that Article 127 is a "lex specialis" provision that provides the procedure to follow in the special case of state withdrawal, based on fundamental principles from the Vienna Convention on the Law of Treaties providing that a treaty's language should be interpreted in line with the treaty's core purposes.

That tension, and the fact of the Chamber having requested responses on basic questions from the prosecution, defense and victims counsel, have cost me and others some sleep. They will certainly have that effect on me tonight.

After that, assuming the Appeals Chamber upholds jurisdiction, I believe the arguments that I and others have laid out on this question will have continued importance moving forward. We are at a moment in which the ICC is under attack. Its opponents, including but not limited to those in the Philippines, will seize on the anti-jurisdiction arguments to portray the continuation of the Philippines case as evidence that the court is willing to exceed its lawful powers. It will be important for the public to hear why jurisdiction in the Philippines case follows straightforwardly from the treaty's language.

Thank you for reading this far. Hopefully the next update will be good news about this. If not, we'll take a few breaths and talk about alternate next steps like accountability steps within the Philippines and universal jurisdiction cases in third governments' judicial systems.

- Dave

Sincerely,

David Borden, Executive Director
StoptheDrugWar.org
P.O. Box 9853, Washington, DC 20016
https://stopthedrugwar.org