ICC-01/21-68 04-04-2023 1/59 PT OA

Original: English No.: ICC-01/21

Date: 4 April 2023

THE APPEALS CHAMBER

Before: Judge Marc Perrin de Brichambaut, Presiding Judge

Judge Piotr Hofmański
Judge Luz del Carmen Ibáñez Carranza
Judge Solomy Balungi Bossa
Judge Gocha Lordkipanidze

SITUATION IN THE REPUBLIC OF THE PHILIPPINES

Public

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)

Source: Office of the Prosecutor

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Document to be notified in accordance with regulation 31 of the Regulations of the

Court to:

The Office of the Prosecutor Counsel for Defence

Mr Karim A.A. Khan KC
Ms Nazhat Shameem Khan
Ms Helen Brady

Legal Representatives of the Victims Legal Representatives of the Applicants

Unrepresented Victims Unrepresented Applicants for

Participation/Reparation

The Office of Public Counsel for The Office of Public Counsel for the
Victims Defence

States’ Representatives Amicus Curiae

The Republic of the Philippines

REGISTRY
Registrar Counsel Support Section
Mr Peter Lewis

Victims and Witnesses Unit Detention Section

Victims Participation and Reparations Other

Section

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Contents

A. First ground of appeal: the Chamber correctly found that the Court has jurisdiction
because the Philippines was a State Party “at the time of the alleged crimes”, and its “ensuing
obligations” remain applicable ................................................................................................... 5

A.1. The Chamber correctly relied on the Philippines being a State Party at the time of the
alleged crimes (1 November 2011 to 16 March 2019) ........................................................... 7

A.2. The Philippines must comply with the rules regulating article 18 proceedings ........... 12

A.3. The preliminary examination was a matter already under the Court’s consideration
prior to the Philippines’ withdrawal ..................................................................................... 14

A.4. The Chamber’s jurisdictional findings were not material to its complementarity
determination ........................................................................................................................ 15

B. Second ground of appeal: the Chamber correctly applied the burden of proof for the
purpose of article 18(2) ............................................................................................................ 17

B.1. As the State requesting deferral, the Philippines bears the burden of proof under article
18(2) ...................................................................................................................................... 19

B.2. The Decision would not be materially affected even if the Prosecution had borne the
burden of proof ..................................................................................................................... 28

C. Third ground of appeal: the Chamber correctly assessed, for the purpose of article
18(2), whether the Philippines’ investigation sufficiently mirrored the Court’s investigation 29

C.1. The Chamber correctly determined whether the Philippines’ investigation sufficiently
mirrored the Court’s investigation ........................................................................................ 32

C.2. The Chamber did not err in assessing the information presented under rule 53(4) and
by the Philippines .................................................................................................................. 38

D. Fourth ground of appeal: the Chamber correctly applied the relevant factors in article
17 51

D.1. The Chamber correctly applied the two-step assessment of article 17 ......................... 52

D.2. The article 18 procedure does not entail a gravity assessment ..................................... 56

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Introduction

1. The Government of the Philippines requests the Appeals Chamber to reverse Pre-Trial
Chamber I’s decision authorising the Prosecution to resume its investigation in this situation.1
It argues that the Chamber: i) erred in law in finding that the Court has jurisdiction in this
situation and that the “ensuing obligations” of the Rome Statute remain applicable to the
Philippines; ii) erred in law in finding that the Philippines bore the burden of proof under article
18(2); iii) erred in law and/or fact in assessing the deferral request by reference to standards
which were originally derived from admissibility challenges under article 19; and iv) erred in
law by failing to consider all the factors in article 17.2

2. It is submitted below that the Philippines has failed to show any error in the Decision, let
alone identified any error which materially affects the Decision as required by article 83(2).
Instead, the Chamber reasonably and correctly considered the materials submitted by the
Philippines and correctly applied the law.

3. First, the Court has jurisdiction in this situation because the authorised investigation
relates to alleged crimes under the Rome Statute committed on the territory of the Philippines
from 1 November 2011 to 16 March 2019. The Philippines’ withdrawal became effective only
on 17 March 2019. The Philippines therefore was a State Party to the Statute during the
temporal scope of the authorised investigation. The Philippines’ subsequent withdrawal from
the Statute thus has no effect on the previously established jurisdiction of the Court. In any
event, the Appeals Chamber does not need to rule on this question since it was not material to
the Chamber’s complementarity findings under article 18.

4. Second, the Chamber correctly determined that the Philippines, as the State requesting
deferral of the Court’s investigation, bears the burden of proof with regard to that request. This
is not altered by the role of the Prosecutor in triggering the exercise of the Pre-Trial Chamber’s
jurisdiction to rule on this matter under article 18(2). This is the correct interpretation of article
18(2) of the Statute based on its terms, read in context and in light of the object and purpose of
the Statute. Nor in any event does the Philippines show that any error in this regard materially
affected the Decision.

1
ICC-01/21-65 (“Appeal”); ICC-01/21-56-Red (“Decision”). See also ICC-01/21-46 (“Prosecution Article 18(2)
Request”). This response uses the terms “Court’s investigation” and “Prosecution’s investigation”
interchangeably. It refers to Pre-Trial Chamber I as “the Chamber”.
2
Appeal, para. 5.

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5. Third, the Chamber correctly and reasonably assessed the factual basis for the deferral
request. In doing so, it applied the proper test to determine questions of complementarity for
the purpose of article 18(2). Specifically, the Chamber identified relevant comparators from
the State’s investigation (based on the materials communicated under rule 54(1) and made
available by the Philippines) and considered them in light of the Court’s intended investigation
(based on the potential cases arising from the situation, as defined by the Chamber’s decision
under article 15(4) and the Prosecutor’s article 18(1) notification). In any event, the Philippines
does not show that any error with regard to the Chamber’s analysis of specific documents or
areas of inquiry materially affected the Decision. The Chamber concluded on the basis of
multiple factors that the Philippines’ investigation did not sufficiently mirror the Court’s
intended investigation for the purpose of article 18(2).

6. Fourth, the Philippines alleges that the Chamber erred in failing to consider the factors
set out in article 17. It is submitted that the Chamber did consider all the relevant factors in
article 17 for the purpose of the article 18(2) assessment. Consistent with the established two-
step process developed by the Court, under the guidance of the Appeals Chamber, it correctly
determined that it was not necessary to enter into questions of the ability or willingness of the
Philippines to carry out investigations since there was not sufficient activity. Nor in the context
of article 18(2) was the Chamber obliged to assess the gravity of potential cases arising within
the situation. However, even if the Chamber had assessed it, this requirement would have been
satisfied. Likewise, the Philippines fails to show that any error in these respects materially
affected the Decision.

Submissions

A. First ground of appeal: the Chamber correctly found that the Court has
jurisdiction because the Philippines was a State Party “at the time of the alleged
crimes”, and its “ensuing obligations” remain applicable

7. In dismissing the Philippines’ observations responding to the Prosecution’s request to

resume the investigation under article 18(2), regarding the Court’s lack of jurisdiction,3 the
Chamber held:

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

3
ICC-01/21-51 (“Observations of the Government of the Philippines on the Prosecution Article 18(2) Request”),
paras. 7-9, 14.

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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
investigation. These provisions and the ensuing obligations remain applicable,
notwithstanding the Philippines withdrawal from the Statute.4

8. In its First Ground, the Philippines challenges this extract. It argues that the Chamber
erred in finding that the Court has jurisdiction.5 It submits that the Chamber failed to conduct
a “contemporaneous” assessment of the Philippines’ status (as a non-State Party) at the time
the Chamber opened the investigation, and instead relied on the Philippines’ status (as a State
Party) “at the time of the alleged crimes”.6 In addition, the Philippines argues that the Chamber
erred in finding that it had an obligation to cooperate with the Court7 and in noting, in the
Article 15 Decision, that the preliminary examination was “a matter under consideration by the
Court”.8 Finally, the Philippines submits that the Chamber’s jurisdictional findings are not
obiter dicta but instead are inextricably linked to the Chamber’s complementarity ruling.9

9. The Prosecution respectfully requests the Appeals Chamber to reject the First Ground.
The Chamber correctly recalled that the Court has jurisdiction “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”.10 This interpretation accords
with the Statute and the Court’s jurisprudence. It is also consistent with the principles and rules
of international law pursuant to article 21(1)(b) of the Statute.

10. Nor is State cooperation a legal prerequisite for the exercise of the Court’s jurisdiction.
Contrary to the Philippines’ suggestion, the preliminary examination was already a “matter
under consideration of the Court” when the Philippines’ withdrawal was effected. In any event,
these two latter arguments should be summarily dismissed because the Chamber did not make
such findings in the Decision. In fact, the Appeals Chamber need not rule on the First Ground

4
Decision, para. 26 (including fn. 85: citing Statute, art. 127(2); ICC-01/21-12 (“Article 15(4) Decision”), paras
110-111).
5
Appeal, paras. 25-62 (challenging Decision, para. 26, but also Article 15(4) Decision, para. 111).
6
Appeal, paras. 39, 61. See also generally paras. 33-42.
7
Appeal, paras. 43-49.
8
See Appeal, paras. 50-59, especially para. 50 (arguing on the basis of the Chamber’s cross-reference to the Article
15(4) Decision, para. 111).
9
Appeal, paras. 28-32.
10
Decision, para. 26. See also Article 15(4) Decision, para. 111 (“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 March 2019”).

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at all since the Chamber’s jurisdictional remarks in the Decision were unrelated and
unnecessary to its complementarity determination under article 18(2) and thus obiter dicta.

11. For all these reasons, the First Ground should be dismissed.

A.1. The Chamber correctly relied on the Philippines being a State Party at the time of the
alleged crimes (1 November 2011 to 16 March 2019)

A.1.a. The Philippines misinterprets the Court’s jurisdictional framework

12. The Chamber’s jurisdictional findings in the Decision, and in the Article 15 Decision, are
correct. The Chamber did not conflate the preconditions to exercise jurisdiction with the
residual obligations of a withdrawing State.11 Rather, the Philippines conflates these
jurisdictional preconditions with the Court’s procedure for determining whether to exercise its
jurisdiction. While the temporal scope of an investigation may extend to the time when the
Court decides to exercise its jurisdiction by opening an investigation, this need not be the case.

13. The Court may only exercise jurisdiction if the relevant jurisdictional preconditions are
found to be met at the material time. These are: subject matter (ratione materiae),12 territorial
(ratione loci), personal (ratione personae)13 and temporal (ratione temporis).14 Absent a UN
Security Council (“UNSC”) referral or an article 12(3) declaration,15 these conditions require
that Rome Statute crimes are committed on the territory of a State Party or by its nationals
during the period when the Statute is in force for that State Party. When the Court decides to
exercise jurisdiction and to open an investigation, it will assess these preconditions. This will
be done either by: (i) a Chamber acting under article 15(4), at the request of the Prosecution
under article 15(3),16 or; (ii) the Prosecution acting under article 53(1), following a State Party
or UNSC referral pursuant to articles 13(a)-(b) and 14.17

14. In all cases, the Court’s jurisdictional assessment must relate to the period that the Court
seeks to investigate, namely, when the alleged crimes were committed. While this period may

11
Contra Appeal, para. 35.
12
Statute, arts. 5-8bis.
13
Statute, art. 12(2). If there is a UNSC referral, article 12(2) does not apply: ICC-01/05-01/08-320 (“Bemba
Fourth Victims Decision”), para. 59; ICC-02/05-01/07-1-Corr (“Harun and Abd-Al-Rahman Article 58
Decision”), para. 16. See also Statute, arts. 25(1) (the Court has jurisdiction over natural persons), 26 (the Court
does not have jurisdiction over persons under 18 at the time of the alleged crimes).
14
Statute, arts. 11, 127(1). But see art. 11(2) (making exceptions for State declarations under article 12(3)).
15
For UNSC referrals, art. 12(2) does not apply; for State declarations under art. 12(3), the State would indicate a
date from when the Court may exercise its jurisdiction—but this cannot be before the date when the Statute entered
into force (1 July 2002) pursuant to article 11(1).
16
See also Statute, art. 13(c).
17
The Prosecution may request the Court to issue a jurisdictional ruling prior to the opening of the investigation
pursuant to article 19(3) of the Statute, for example as it did in the Palestine situation: ICC-01/18-12.

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extend to the time when the Court decides to open an investigation, it need not. Indeed, the
parameters of a situation may sometimes permit the Prosecutor only to investigate crimes
committed for a confined period prior to the opening of an investigation.18 In that scenario, and
absent a UNSC referral or article 12(3) declaration, while a State must have been a Party to the
Statute when the alleged crimes were committed, it need not still be a Party when the
investigation is opened. On the other hand, the parameters of a situation may encompass not
only past but also contemporaneous or ongoing crimes, as well as crimes post-dating the
opening of the investigation which are sufficiently linked.19 In such a scenario, the State must
be a Party when the alleged crimes are committed, thus including when the investigation is
opened.

15. In the Philippines situation, the Prosecution was authorised to investigate Rome Statute
crimes allegedly committed in the Philippines from 1 November 2011 until 16 March 2019—
that is, when the Philippines was a State Party.20 That the Philippines was not a State Party
when the investigation was opened (on 15 September 2021) is immaterial and does not the
deprive the Court of jurisdiction over crimes allegedly committed during the temporal scope of
the investigation.

A.1.b. The Chamber’s interpretation is consistent with the established principles of treaty
interpretation

16. The Chamber’s finding flows from an interpretation and application of the Statute in good
faith, and considering its ordinary meaning, purpose and context, as well as its drafting
history.21

18
See e.g. ICC-01/15-12 (“Georgia Article 15(4) Decision”), para. 64 (“events related to the conflict in and around
South Ossetia between 1 July and 10 October 2008”); ICC-01/09-19-Corr (“Kenya Article 15(4) Decision”), para.
207 (“events that took place as between 1 June 2005 (i.e., the date of the Statute's entry into force for the Republic
of Kenya) and 26 November 2009 (i.e., the date of the filing of the Prosecutor's Request)”).
19
See e.g. ICC-02/17-138 OA4 (“Afghanistan Article 15(4) Appeal Judgment”), para. 79 (“alleged crimes
committed on the territory of Afghanistan in the period since 1 May 2003, as well as other alleged crimes that have
a nexus to the armed conflict in Afghanistan and are sufficiently linked to the situation and were committed on the
territory of other States Parties in the period since 1 July 2002”); ICC-01/19-27 (“Bangladesh/Myanmar Article
15(4) Decision”), para. 131 (“crimes allegedly committed on or after 1 June 2010, the date of entry into force of
the Statute for Bangladesh” and “crimes allegedly committed at least in part on the territory of other States Parties
after the date of entry into force of the Statute for those States Parties, insofar as the alleged crimes are sufficiently
linked to the situation as described in this decision”).
20
Article 15(4) Decision, para. 118. See also paras. 109-110, 113.
21
See Vienna Convention on the Law of Treaties (“VCLT”), art. 31(1). See further e.g. ICC-01/05-01/08-3343
(“Bemba Trial Judgment”), para. 77 ( “the various elements referred to in this provision—i.e., ordinary meaning,
context, object, and purpose—must be applied together and simultaneously”); ICC-01/04-01/07-3436-tENG
(“Katanga Trial Judgment”), para. 45.

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17. This interpretive approach is consistent with the status of the Rome Statute as an
international treaty, setting up the first permanent international criminal court.22 By becoming
Parties to the Statute, States accept its terms including not only the complementarity provisions
but also—perhaps most fundamentally—the Court’s jurisdiction.23 In this respect, the Statute
differs from other treaties or conventions containing conflict resolution clauses for disputes
arising from their application.24 Unlike such instruments, the Court’s jurisdiction is not an
incidental provision of the Statute. Rather, it is the main objective and consequence of joining
it. Indeed, by joining the Statute, States accept that ICC proceedings may be conducted if Rome
Statute crimes are found to be committed on their territory or by its nationals while they are
Parties, unless they themselves investigate or prosecute these crimes.25

18. While the Court may sometimes react contemporaneously to the commission of alleged
crimes, the Court’s proceedings may otherwise materialise after the relevant events. This will
depend on the circumstances of the situation in question. However, in all scenarios the Court
retains jurisdiction over the alleged crimes committed during the period when the Statute is in
force for that State. A contrary interpretation would violate the terms of the agreement (the
Court’s jurisdiction) and would defeat its object and purpose. It would potentially allow States
to commit or accept the commission of Rome Statute crimes while the Court had jurisdiction,
but then avoid investigation and potentially prosecution of the alleged perpetrators by
subsequently withdrawing.26

19. That the Court’s jurisdiction over alleged crimes committed by State Parties is not subject
to time limits does not cause uncertainty or unfairness. Indeed, States agree to these conditions

22
Statute, art. 1 (“An International Criminal Court (“the Court”) is hereby established. It shall be a permanent
institution and shall have the power to exercise its jurisdiction over persons for the most serious crimes of
international concern, as referred to in this Statute, and shall be complementary to national criminal jurisdictions.
The jurisdiction and functioning of the Court shall be governed by the provisions of this Statute”).
23
Statute, art. 12(1) (“A State which becomes a Party to this Statute thereby accepts the jurisdiction of the Court
with respect to the crimes referred to in article 5”).
24
Such conflict resolution clauses generally permit litigation for violations predating the termination of the treaty,
but may vary as to whether the court’s jurisdiction must be triggered before the termination or denunciation (which
appears to be the general rule), or may be invoked afterwards: see H. Ascensio ‘Volume II, Part V Invalidity,
Termination and Suspension of the Operation of Treaties, s.5 Consequence of the Invalidity, Termination or
Suspension of the Operation of a Treaty, Art.70 1969 Vienna Convention,’ in O. Corten and P. Klein (eds.), The
Vienna Convention on the Law of Treaties (OUP: 2011) (“Ascensio”), pp. 1604-1607. For examples of instruments
permitting the triggering of litigation after termination/denunciation: see e.g. Washington Convention on
Settlement of Investment Disputes, art. 72; ECHR, art. 58(2); ACHR, art. 78(2). See also Ambatielos Case (Greece
v. United Kingdom), Preliminary Objection, Judgment of 1 July 1952, ICJ Reports 1952, pp. 45-46. See below
para. 25.
25
In this context, the dispute settlement provisions relating to the Court’s judicial functions revert back to the
Court itself: see Statute, art. 119(1).
26
The exception provided in article 124 of the Statute reinforces this scheme, since any exception to the acceptance
to the Court’s jurisdiction must be expressed in writing and entered only with respect to war crimes for seven years
upon first joining the Statute. Otherwise, article 120 permits no reservations to the Statute.

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by ratifying and acceding to the Statute.27 It should be recalled that States have an obligation
erga omnes to prevent, investigate and punish crimes within the Court’s jurisdiction.28
Moreover, Rome Statute crimes are not subject to any statute of limitations.29

20. The terms of article 127(2) should be read in this context. This provision enshrines the
principle of non-retroactivity, which is also envisaged in the termination provisions of other
international treaties.30 It suggests that the legal consequences resulting from acceptance of the
Court’s jurisdiction, as well as the rights and duties accruing to State Parties, must be respected
and cannot be taken away by the State’s subsequent withdrawal. That article 127(2) expressly
refers to investigations and proceedings which commenced prior to the State’s withdrawal does
not mean that the Court lacks jurisdiction in proceedings commencing thereafter. The
Philippines misconstrues the function of the provision. Article 127(2) seeks to ensure that
ongoing proceedings (and related treaty obligations) are not undermined by a State’s
withdrawal; it does not regulate the Court’s jurisdictional requirements.

21. Two other ICC Chambers have endorsed the Chamber’s interpretation in other contexts
and situations. They have similarly reasoned that “[t]he withdrawal of a State Party from the
Statute […] has no effect on the previously established jurisdiction of the Court”31 and the
“acceptance of the jurisdiction remains unaffected by a withdrawal of the State Party from the
Statute” since “the exercise of the Court’s jurisdiction, i.e. the investigation and prosecution of
crimes committed up [one year after the State withdrawal], is, as such, not subject to any time
limit”.32

22. This approach is further consistent with the view expressed by some drafters who recall
that “proceedings might be commenced after withdrawal” in accordance with the principles of
treaty interpretation in public international law.33

27
Statute, arts. 125-126.
28
The Appeals Chamber has confirmed that there is an obligation erga omnes to prevent, investigate and punish
crimes within the jurisdiction of the Court: ICC-02/05-01/09-397 OA2 (“Bashir Jordan Referral Appeal
Judgment”), para. 123. See also ICC-02/05-01/09-397-AnxI OA2 (“Bashir Joint Concurring Opinion of Judges
Eboe-Osuji, Morrison, Hofmański and Bossa”), para. 207 (“It has now been authoritatively settled that the
proscriptions of genocide, crimes against humanity and war crimes enjoy the status of jus cogens norms”).
Similarly, the IACtHR has considered as jus cogens norms the obligations to investigate, prosecute and punish
those responsible for crimes against humanity: Goiburú v. Paraguay, Judgment, paras. 84, 131; La Cantuta v.
Perú, Judgment, para. 157.
29
Statute, art. 29.
30
See below para. 23.
31
ICC-02/05-01/20-391 (“Abd-al-Rahman Jurisdiction Decision”), para. 33.
32
ICC-01/17-9-Red (“Burundi Article 15(4) Decision”), para. 24.
33
T. Neroni Slade and R.S. Clark, ‘Preamble and Final Clauses,’ in R.S. Lee (ed.), The International Criminal
Court: the Making of the Rome Statute (Martinus Nijhoff Publishers: 1999), p. 447 (“Our recollection is that some

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A.1.c. The Chamber’s interpretation is consistent with principles and rules of international law
pursuant to article 21(1)(b)

23. This interpretation is also consistent with the principles and rules of international law
which may be applied by the Court under article 21(1)(b). Relevantly, article 70(1) of the
Vienna Convention on the Law of Treaties (“VCLT”) (“Consequences of the termination of a
treaty”) bears similarity with article 127 of the Statute.34 Its rules are deemed to have acquired
a customary character35 and are considered the fruit of common sense and the result of a general
principle of legal security.36 Article 70(1)(b)—stating that the termination of a treaty “does not
affect any right, obligation or legal situation of the parties created through the execution of the
treaty prior to its termination”—means that a State’s decision to withdraw from an international
agreement does not have retroactive effect.37 The withdrawing State will still be bound by
obligations accrued before the denunciation becomes effective,38 and a State may be liable for
breaches which occurred prior the termination of the treaty.39

24. For the Rome Statute, the Court’s jurisdiction is the “legal situation” to be preserved, in
the terms of the VCLT, and the rights and obligations acquired by a State while it is a Party are

of those who participated in the discussion thought that Article 70 of the Vienna Convention on the Law of Treaties
would apply in such situations and mean that proceedings might be commenced after withdrawal”); R.S. Clark
and S.M. Meisenberg, ‘Article 127: withdrawal,’ in K. Ambos (ed.), The Rome Statute of the International
Criminal Court: Article-by-Article Commentary, 4th Ed. (C.H. Beck/Hart/Nomos: 2022) (“Clark and
Meisenberg”), p. 2925 (mn. 8: “some of the participants saw Article 127 as pre-empting the field, so that there was
no longer room for any residual effect for the VCLT provision (the parties were “agreed otherwise”); others
thought the two provisions could apply in some situations”).
34
VCLT, art. 70(1) (“Unless the treaty otherwise provides or the parties otherwise agree, the termination of a treaty
under its provisions or in accordance with the present Convention: (a) releases the parties from any obligation
further to perform the treaty; (b) does not affect any right, obligation or legal situation of the parties created through
the execution of the treaty prior to its termination”).
35
Ascensio, p. 1590.
36
Ascensio, pp. 1590-1591 (explaining that the general principle of law of legal security was reflected by the
drafters of the VCLT in the establishment of non-retroactivity as a principle for articles 4, 28 and 70).
37
VCLT, art. 70(1)(b) (emphasis added). See also A. Morelli, ‘Withdrawal from Multilateral Treaties’ in V.
Chetail (ed.) Theory and Practice of Public International Law, Vol. 4 (Brill Nijhoff: 2022) (“Morelli”), p. 175;
Ascensio, p. 1589 (“Rules relating to the consequences of termination are based on the principle of non-
retroactivity. In this way, they differ from those relating to the consequences of invalidity, which relies on the
opposing principle. This is justified by the general idea that invalidity operates ex tunc, whereas termination
operates ex nunc”).
38
Morelli, p. 175.
39
Case between New Zealand and France, RIAA, 30 April 1990, vol. XX, p. 266, paras. 105 (“[]Thus, while
France continues to be liable for the breaches which occurred before 22 July 1989, it cannot be said today that
France is now in breach of its international obligations”), 106 (“This does not mean that the French Government
is exempt from responsibility on account of the previous breaches of its obligations, committed while these
obligations were in force […] In this case it is undisputed that the breaches of obligation incurred by the French
Government discussed in paragraphs 88 and 101 of the Award—the failure to return Major Mafart and the removal
of and failure to return Captain Prieur—were committed at a time when the obligations assumed in the First
Agreement were still in force. Consequently, the claims advanced by New Zealand have an existence independent
of the expiration of the First Agreement and entitle New Zealand to obtain adequate relief for these breaches”).
This case related to the breach of a 9 July 1986 agreement that required two French agents to remain in Hao Atoll
until 22 July 1989, when the agreement terminated.

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not affected by its withdrawal. As noted, this means that the Court can exercise its jurisdiction
after a State’s withdrawal with regard to Rome Statute crimes allegedly committed when the
State was still a Party, as long as all the other jurisdictional requirements are met.40

25. Termination clauses in conventions such as the European Convention on Human Rights
(ECHR) and the American Convention on Human Rights (ACHR) are also interpreted in this
manner.41 A withdrawing State remains responsible for violations that occurred before or
during the withdrawal notice period, as the State was still considered a member of the
organisation for that period.42 For example, when States have denounced the ACHR, the Inter-
American Commission has held that it retains jurisdiction over complaints of violations
committed by the withdrawing State before the withdrawal became effective, even if the effects
of those violations continued or did not manifest until a later date.43

A.2. The Philippines must comply with the rules regulating article 18 proceedings

26. To further support its position that a State must be Party to the Statute when the Court’s
jurisdiction is exercised, the Philippines argues that the Court can only enforce cooperation
with respect to investigations, and that States whose withdrawal is effected prior to the opening
of an investigation have no obligation to cooperate pursuant to article 127(2).44 It further

40
Clark and Meisenberg, p. 2925 (mn. 8). Contra R. Kolb, ‘Article 127: Retrait,’ in J. Fernandez, X. Pacreau et
M. Ubéda-Saillard (eds.), Statut de Rome de la Cour pénale internationale, Commentaire article par article, 2nd
Ed. (Pedone: 2019), pp. 2656-2657 (requiring that at least a preliminary examination is opened prior to the
withdrawal being effected). However, as noted above, article 127(2) does not set out the jurisdictional requirements
and regulates a particular factual scenario. Moreover, the Rome Statute differs from other treaties since its main
objective is the establishment—and acceptance—of the Court’s jurisdiction.
41
See e.g. ECHR, art. 58(2) (“Such a denunciation shall not have the effect of releasing the High Contracting Party
concerned from its obligations under this Convention in respect of any act which, being capable of constituting a
violation of such obligations, may have been performed by it before the date at which the denunciation became
effective”); ACHR, art. 78(2) (“Such a denunciation shall not have the effect of releasing the State Party concerned
from the obligations contained in this Convention with respect to any act that may constitute a violation of those
obligations and that has been taken by that state prior to the effective date of denunciation”). See also Ascensio,
pp. 1606-1607 (referring to these provisions as examples of jurisdiction with prolonged effect); see above fn. 24.
42
Morelli, p. 176.
43
Roodal v. Trinidad and Tobago, Case 12.342, Report No. 89/01, OEA/Ser./L/V/II.114 Doc. 5 rev. at 300 (2001),
para. 23 (“By the plain terms of Article 78(2), states parties to the American Convention have agreed that a
denunciation taken by any of them will not release the denouncing state from its obligations under the Convention
with respect to acts taken by that state prior to the effective date of the denunciation that may constitute a violation
of those obligations. A state party’s obligations under the Convention encompass not only those provisions of the
Convention relating to the substantive rights and freedoms guaranteed thereunder. They also encompass provisions
relating to the supervisory mechanisms under the Convention, including those under Chapter VII of the Convention
relating to the jurisdiction, functions and powers of the Inter-American Commission on Human Rights.
Notwithstanding Trinidad and Tobago’s denunciation of the Convention, therefore, the Commission will retain
jurisdiction over complaints of violations of the Convention by Trinidad and Tobago in respect of acts taken by
that State prior to May 26, 1999. Consistent with established jurisprudence, this includes acts taken by the State
prior to May 26, 1999, even if the effects of those acts continue or are not manifested until after that date”).
44
Appeal, para. 46. See also generally paras. 43-48.

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suggests that the Court erred in finding that the “ensuing obligations” of the Rome Statute
remain applicable.45

27. The Prosecution respectfully submits that the Philippines misinterprets the Decision. The
Chamber did not find that the Philippines has an obligation to cooperate with the Court’s
investigation. In any event, it is submitted that the Appeals Chamber need not rule on this
matter to resolve this appeal.

28. First, although State cooperation is fundamental to the Court’s efficient conduct of its
proceedings, it is not a jurisdictional precondition that must be met for the Court to exercise its
jurisdiction under the Statute. In fact, since article 12(2) is framed in the alternative, the States
potentially affected by alleged crimes under the Rome Statute are not always the same, nor is
it necessary that they are both State Parties when the crimes are committed and consequently
they may not both be obliged to cooperate.46 Nor has it been uncommon for some States,
including Parties to the Statute, to have been found at times not to have afforded the Court the
required cooperation.47 Yet this has not deprived the Court of its jurisdiction in those situations.

29. Second, the Chamber did not find that the Philippines is obliged to cooperate with the
Court’s investigation.48 Rather, it held that the provisions related to “the procedure laid down
in article 18(2) of the Statute” and the “ensuing obligations remain applicable, notwithstanding
the Philippines’ withdrawal from the Statute”.49 Indeed, as the Chamber set out, “[b]y 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”.50 As
noted above, the Philippines accepted that, if crimes were found to be committed on its territory
and if it did not conduct genuine investigations, the Court’s jurisdiction could be triggered.
Moreover, the Philippines has availed itself of the complementarity provisions in the Statute to
request the deferral of the Court’s investigation pursuant to article 18(2).

45
Appeal, para. 61.
46
Indeed, the Court may investigate crimes committed by nationals of State Parties on the territory of non-State
Parties or it may investigate crimes committed by nationals of non-State Parties on the territory of State Parties.
47
See e.g. ICC-01/09-02/11-1037 (“Kenyatta Second Article 87(7) Decision”), p. 18; ICC-02/05-01/09-151
(“Bashir Chad Article 87(7) Decision”), para. 23.
48
Contra Appeal, para. 61.
49
Decision, para. 26 (emphasis added).
50
Decision, para. 26 (emphasis added). See also ICC-02/04-01/05-377 (“Kony et al. Admissibility Decision”),
para. 45.

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A.3. The preliminary examination was a matter already under the Court’s consideration
prior to the Philippines’ withdrawal

30. The Philippines further argues that the Chamber erred—in the Article 15(4) Decision—
in finding that “[t]he 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”.51 It submits that the Prosecution’s preliminary examination was not a “matter
which was already under consideration by the Court” by the time the Philippines withdrew
pursuant to article 127(2).52 Rather, it argues that this provision refers to an article 15 request
being pending at the moment when a State’s withdrawal has taken effect.53

31. Since the Philippines challenges the Article 15(4) Decision and not the Decision, these
submissions fall outside the scope of the Appeal and must be dismissed on this basis alone.
Moreover, the Philippines’ submissions also fail on their merits.

32. First, the Chamber did not rule in the Decision that the preliminary examination was “a
matter under consideration” within the terms of article 127(2) at the time the Philippines’
withdrawal was effected. The Chamber did not even mention it in the Decision. Instead, it
found that the Court has jurisdiction because the Philippines was a State Party when the alleged
crimes for which the investigation was authorised were committed.54 That the Chamber referred
to the Article 15(4) Decision in footnotes, among other sources, to support its reasoning does
not permit the Philippines to challenge the Article 15(4) Decision in an appeal against the
Decision.

33. Second, and in any event, the Chamber correctly found in the Article 15(4) Decision that:
“[t]he 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”.55 Indeed,
as noted above, the Court retains jurisdiction over Rome Statute crimes committed on the
territory of the Philippines when the Philippines was a State Party, that is from 1 November
2011 until 16 March 2019. It is also accurate that the preliminary examination was a “matter
which was already under consideration by the Court prior to the date on which the withdrawal
became effective” since it was opened on 8 February 2018. However, the Chamber’s remark

51
Appeal, para. 50 (quoting Article 15(4) Decision, para. 111).
52
Appeal, paras. 50-59.
53
Appeal, para. 54.
54
Decision, para. 26.
55
Article 15(4) Decision, para. 111.

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regarding the preliminary examination was not determinative to the Chamber’s conclusion that
the Court has jurisdiction in the situation.

34. In any event, the Chamber was correct. Contrary to the Philippines’ assertion, the
Prosecution is very much part of the Court including for the purposes of article 127(2).56 The
Prosecution is the organ of the Court which conducts a full assessment (also known as a
preliminary examination) of the factors set out in article 53(1)(a)-(c) in order to decide whether
to open an investigation and/or to request authorisation to investigate under article 15(3).57 If
the Prosecution were not to conduct this assessment there would be no investigations or
prosecutions by this Court.

35. Further, preliminary examinations have consequences for the Prosecution and the Court
as a whole. Not only does the Prosecution devote resources to assess the factors under article
53(1)(a)-(c), but a preliminary examination may also involve other organs of the Court.58
Affected States are also aware of the Prosecution’s preliminary examinations since the
Prosecution publicly announces their opening, and periodically reports on their development.59
It also seeks to engage with the affected States,60 as it did with the Philippines.

A.4. The Chamber’s jurisdictional findings were not material to its complementarity
determination

36. Finally, the Prosecution respectfully submits that the Chamber need not entertain the
Philippines’ First Ground. Although the Chamber restated the Court’s jurisdiction in this
situation—and the Philippines may have considered it appropriate to appeal it—this
restatement was unrelated to the Chamber’s complementarity findings pursuant to article 18(2),
nor was it an essential or necessary component of those findings. Notwithstanding the
importance of jurisdictional matters and that “[t]he Court shall satisfy itself that it has
jurisdiction in any case brought before it”,61 article 18 is not the appropriate forum to conduct

56
Statute, arts. 34, 42(1); contra Appeal, para. 55.
57
ICC RPE, rule 48.
58
The Prosecution must inform the Presidency of the receipt of a State and Security Council referral so that a Pre-
Trial Chamber is assigned to that situation. Likewise, the Prosecution must provide to the Presidency information
that may facilitate the timely assignment of a situation to a Pre-Trial Chamber, including, the Prosecution’s
intention to submit a request under article 15(3): see ICC RoC, reg. 45(1). Moreover, in the course of a preliminary
examination, the Prosecution may take measures to protect victims and (potential) witnesses under article 68(1),
may receive written or oral testimony at the seat of the Court and may request the Pre-Trial Chamber to take
measures as may be necessary to ensure the efficiency and integrity of the proceedings, including to appoint a
counsel or a judge from the Pre-Trial Chamber to be present during the taking of the testimony: see e.g. Statute,
art. 15(2); ICC RPE, rule 47; Burundi Article 15(4) Decision, para. 15.
59
See e.g. Report on Preliminary Examination Activities (2020); Report on Preliminary Examination Activities
(2019); Report on Preliminary Examination Activities (2018).
60
Policy Paper on Preliminary Examinations, para. 13.
61
Statute, art. 19(1); see ICC-02/05-01/20-503 OA8 (“Abd-al-Rahman Jurisdiction Appeal Judgment”), para. 45.

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a jurisdictional assessment. This bespoke procedure was introduced in the Statute specifically
to address complementarity matters,62 and it relates to the situation as a whole following the
opening of an investigation.63 Accordingly, a decision pursuant to article 18(2) is made on the
basis of the factors set out in article 17(1)(a)-(c), and does not relate to jurisdictional questions
which may properly arise under article 19.

37. That the Chamber does not assess jurisdiction in the article 18 procedure does not mean
that jurisdiction has not been assessed at all. On the contrary. By the time a Chamber is seised
with an article 18(2) request, the Court will have already ascertained that it has jurisdiction in
the situation, either in the context of a judicial decision pursuant to article 15(4) (for proprio
motu situations) or by the Prosecutor under article 53(1)(a) (for State and UNSC referrals). It
would be inefficient and illogical to immediately repeat this assessment in the context of the
article 18 proceedings. Nor does the ex parte nature of the article 15 proceedings justify
deviating from the text of the Statute, which already contains mechanisms to allow States to
raise their jurisdictional concerns. Indeed, article 19(2) of the Statute allows States to challenge
the Court’s jurisdiction with respect to a “case”, that is, after the issuance of an arrest warrant
or a summons to appear against an individual for defined acts and crimes.

38. In fact, the Philippines’ observations regarding the Court’s lack of jurisdiction were
improperly before the Chamber.64 While the Chamber invited the Philippines “to submit any
additional observations arising from the Prosecution’s Request”, these observations had to
relate to the article 18 procedure itself and not to other issues arising from the Chamber being
seised of the situation.65 While the Chamber decided to address the Philippines’ jurisdictional
submissions for the sake of clarity, this was for the purpose of recalling the objectives of the
article 18(2) procedure and, in so doing, to recall its prior findings in the Article 15 Decision.
This restatement was however unrelated to, and distinguishable from, the Chamber’s
assessment of whether the deferral request was justified within the terms of article 18(2).

39. This is apparent from the structure of the Decision. The Chamber made its jurisdictional
remarks in the section “Preliminary Issues” and not in the section “Issues material to the article

62
J.T. Holmes, ‘The Principle of Complementarity,’ in R.S. Lee (ed.), The International Criminal Court: the
Making of the Rome Statute (Martinus Nijhoff Publishers: 1999) (“Holmes (1999)”), p. 69.
63
In Palestine, the Pre-Trial Chamber noted that the reference to “case” in article 19(1) and (2) restricts the scope
of application of these provisions, while article 19(3) does not have such limitation and the Prosecution may seek
a ruling from the Court regarding jurisdiction and admissibility before there is a “case”: ICC-01/18-143 (“Palestine
Article 19(3) Decision”), paras. 73-74, 82.
64
Observations of the Government of the Philippines on the Prosecution Article 18(2) Request, paras. 7-23; see
Decision, paras. 22-24 (referring to the Prosecution’s submissions in response to the Philippines’ observations).
65
ICC-01/21-47 (“Order Inviting Observations”), paras. 12-13.

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18(2) proceedings”, where it solely addressed complementarity matters. The Chamber did not
therefore consider the Philippines’ jurisdictional submissions as “material” (or relevant) to its
ruling on complementarity, which was the only matter the Chamber was called to resolve under
article 18(2). Thus, to the extent the Court’s jurisdiction was recalled as a preliminary matter,
this did not form the basis of the Chamber’s article 18(2) decision, and cannot be appealed as
such under article 18(4).66

40. For all these reasons, the Prosecution respectfully submits that the Philippines’ First
Ground should be summarily dismissed.

B. Second ground of appeal: the Chamber correctly applied the burden of proof for
the purpose of article 18(2)

41. In the Decision, the Chamber recalled that, “for the purpose of admissibility challenges
pursuant to article 18(2) of the Statute, the onus is on the State to show that investigations or
prosecutions are taking place or have taken place”.67 It further recalled that, in order to
demonstrate relevant State activity, mere assertions are not sufficient—but rather the State must
provide evidence “of a sufficient degree of specificity and probative value” showing that
“tangible, concrete and progressive investigative steps” are actually being carried out with a
view to conducting “criminal prosecutions”.68

42. The Chamber reached these conclusions on the basis of:

• Rule 53, which requires a State which “requests” a deferral pursuant to article 18(2) to
“make this request in writing and provide information concerning its investigation”;

66
ICC-01/11-01/11-695-AnxI OA8 (“Gaddafi Second Admissibility Appeal Judgment, Separate and Concurring
Opinion of Judge Ibáñez Carranza”), para. 18 (stating that obiter dicta are “incidental remarks which are non-
essential to the decision. They do not form part of the ratio decidendi of the case and therefore create no binding
precedent. On the other hand, the ratio decidendi contains the rationale of the decision. It is the principle or
principles of law on which the court reaches its decision and it is said to be the statement of law applied to the
material facts.”); ICC-02/05-01/20-459 OA9 (“Abd-Al-Rahman Detention Review Appeal Judgment”), para. 50
(statements which did not form part of a Chamber’s reasons for the order it made in its decision were simply obiter
dicta, and not ‘findings’ per se, and thus “of no practical consequence”). See also ICTY, Prosecutor v. Šešelj, IT-
03-67-T, Interlocutory Decision Concerning Provisional Release, 10 April 2015, Separate and Concurring Opinion
of Judge Antonetti, pp. 12-13; Prosecutor v. Milutinović et al., IT-99-37-AR72, Decision on Dragoljub Ojdanić’s
Motion Challenging Jurisdiction—Joint Criminal Enterprise,’ 21 May 2003, Separate Opinion of Judge
Shahabuddeen, paras. 17 (“the ratio decidendi of a case is generally considered to be ‘the reason why it was
decided as it was’”) and 24 (“in this case, the proposition in question was in no sense assumed but, on the contrary,
resulted from careful and exhaustive examination by the court of material relevant to a manifestly important point
bearing on its jurisdiction […]; it is ratio decidendi and exerts the force normally flowing from this”).
67
Decision, para. 14. See also Appeal, para. 65.
68
Decision, para. 14 (emphasis supplied). See also para. 17 (recalling that admissibility must be determined “on
the basis of the facts ‘as they exist at the time of the proceedings [before the Court]’”).

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• The similar approach of Pre-Trial Chamber II in authorising the resumption of the

investigation in the Afghanistan situation pursuant to article 18(2);69 and

• The jurisprudence of the Appeals Chamber, in the context of article 19(2) of the Statute,
holding that “a State that challenges the admissibility of a case bears the burden of proof
to show that the case is inadmissible” and must provide the Court with sufficient
evidence for that purpose.70

43. In its Appeal, the Philippines claims that the Chamber erred in law by imposing the
burden of proof upon it as the State requesting deferral pursuant to article 18(2), 71 by
“incorrectly conflat[ing] proceedings under article 18 and those under article 19.”72 In
particular, it asserts that the Chamber “ignore[d] the deep-seated rule” that “the moving (or
challenging) party […] bears the burden of proof” (actori incumbit probatio)73 because, in its
view of article 18(2), it is the Prosecutor who must request the Chamber for an order “to end
its continued deferral to the domestic investigation”, which is triggered “automatically”.74

44. The Prosecution respectfully submits that the Philippines misconceives the applicable
procedure under article 18(2). As the State requesting deferral, the Philippines was the moving
party for the purpose of the article 18(2) proceedings. In any event, the Chamber correctly
applied the burden of proof. Specifically, the Philippines disregards that the role of the
Prosecutor under article 18(2) is essentially a filter to determine which deferral requests require
the Chamber’s scrutiny—such that, if the Prosecutor does consider that the Chamber’s scrutiny
is required, it then remains for the State requesting the deferral to satisfy the Chamber that this
is justified. This understanding of the procedure is implied not only by rules 53 and 54, but also
by the language of articles 18(2), (3), and (5), and the object and purpose of the Statute.

45. Furthermore, and in any event, the Philippines incorrectly asserts that its claim of error
“vitiates the entire analysis” in the Decision,75 such that it was materially affected for the
purpose of article 83(2) of the Statute. This cannot be the case. Even if the burden of proof had
rested upon the Prosecution, the substantive information presented to the Chamber would have

69
ICC-02/17-196 (“Afghanistan Article 18(2) Decision”), para. 45.
70
ICC-02/11-01/12-75-Red OA (“S. Gbagbo Admissibility Appeal Judgment”), para. 128; ICC-01/09-02/11-274
OA (“Muthaura et al. Admissibility Appeal Judgment”), para. 61; ICC-01/09-01/11-307 OA (“Ruto et al.
Admissibility Appeal Judgment”), para. 62. See also ICC-01/11-01/11-565 OA6 (“Al Senussi Admissibility
Appeal Judgment”), para. 166; ICC-01/11-01/11-344-Red (“Gaddafi First Admissibility Decision”), para. 54.
71
Appeal, para. 64.
72
Appeal, para. 66.
73
Appeal, para. 67.
74
Appeal, paras. 72-74. See also para. 69 (“it is not the State which is seeking to change the status quo in article
18 proceedings”).
75
Contra Appeal, para. 75.

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been precisely the same, because this is already expressly regulated by rule 54(1) (requiring the
Prosecution to communicate to the Chamber the information provided by the Philippines). The
Chamber’s conclusion in these proceedings resulted simply from the application of the
substantive law to that information.

46. For all these reasons, the Second Ground should be dismissed.

B.1. As the State requesting deferral, the Philippines bears the burden of proof under article
18(2)

47. In its submissions, the Philippines over-emphasises the principle that “the moving (or
challenging) party […] bears the burden of proof”,76 which the authorities it cites show to be
much more qualified. For example, while it is true that Fairlie saw no “compelling reason to
depart” from this “basic” principle for the purpose of article 18(2),77 this was in the context of
her previous and more general remarks that:

[A]s Wigmore dictates (and as the U.S. Supreme Court has endorsed), there is not and cannot
be a general solvent [of the burden of proof] for all cases. It ‘is merely a question of policy and
fairness based on experience in the different situations.’ Accordingly, numerous rules exist
regarding such allocation determinations and are employed in both national and international
regimes.
[…]
‘[T]here are no hard and fast standards governing the burden of proof in every situation.’ Among
other possibilities, the burden may be apportioned to one asserting an affirmative allegation,
one who is to prove a negative assertion, the party to whose case a fact is essential, or one who
has a peculiar means of knowledge to prove a fact’s falsity. In short, burden allocations may
turn upon any one of a number of factors such as policy considerations, convenience, fairness,
judicial estimate of the probabilities and the tendency to place the burden on the party desiring
change.78

48. Consequently, in examining the correct allocation of the burden of proof, it is necessary
to look at the functioning of the article 18(2) procedure as a whole, and not merely to look at
which party makes a particular filing.79 As the following paragraphs make clear, since it is the
State which requests deferral of the Court’s investigation—and rule 53 confirms that it is the
State which must provide information supporting that request—it is the State which bears the

76
Appeal, paras. 67-68.
77
Appeal, para. 69 (fn. 56: quoting M. Fairlie, ‘Establishing admissibility at the International Criminal Court: does
the buck stop with the Prosecutor, full stop?’ [2005] 39 The International Lawyer 817 (“Fairlie”), p. 824).
78
Fairlie, pp. 822, 824.
79
Contra Appeal, para. 75.

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burden if the Pre-Trial Chamber becomes seised of the matter under article 18(2). Of course,
this does not relieve the Prosecution of its own duty to substantiate the basis of any concerns it
may have in addressing the State’s deferral request.80

49. Nor indeed has the Appeals Chamber ever held that the State carries the burden of proof
for the purpose of article 19(2) simply because it is the moving party,81 including in any of the
passages cited in the Decision.82 Rather, the Appeals Chamber’s conclusion that the State
carries the burden of proof must follow from interpreting article 19(2) in the context of article
17(1)(a) to (c) of the Statute, as well as the Rules of Procedure and Evidence, and in light of
the object and purpose of the Statute. Not only is this the standard approach of the Appeals
Chamber, in accordance with the VCLT, but it is also endorsed by the Philippines itself.83 In
determining the correct allocation of the burden of proof for article 18(2), in these proceedings,
the Appeals Chamber should do the same.

50. Accordingly, it is necessary first to consider the terms of article 18(2) itself, and then to
take into account the context of article 17(1)(a) to (c)—to which both articles 18(2) and 19(2)
equally relate. In the Prosecution’s submission, nothing in article 18(2) warrants departing from
the approach favoured by article 17(1)(a) to (c), which allocates the burden of proof to a State
relying on its own domestic proceedings. To the contrary, this approach is further supported by
the other sub-paragraphs of article 18, as well as rules 53 to 54. Finally, the object and purpose
of the Statute favours a full and proper assessment whether a request for deferral is justified,
and this too militates in favour of allocating the burden of proof under article 18(2) to the State
requesting deferral.

B.1.a. The terms of article 18(2) do not clearly allocate the burden of proof

51. In the Prosecution’s submission, the terms of article 18(2) do not clearly allocate the
burden of proof,84 even though they may be strongly suggestive that it should fall upon the
State requesting deferral. Yet the terms of article 18(2) should in any event be considered in
context—including article 17, the other sub-provisions of article 18, and the applicable rules—
and in light of the object and purpose of the Statute.

80
See also e.g. Al Senussi Admissibility Appeal Judgment, para. 167; Prosecution Article 18(2) Request, para. 30
(fn. 49).
81
Contra Appeal, para. 68.
82
See above fn. 70.
83
See Appeal, para. 69.
84
See also Fairlie, p. 822.

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52. Article 18(2) provides, materially, that:

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. [Emphasis added]

53. The Prosecution acknowledges that this provision (“on the application of the Prosecutor”)
vests the Prosecutor with the power to decide whether to accept a State’s request for deferral
or whether it falls to be considered by the Pre-Trial Chamber. In a narrow mechanical sense,
therefore, it is the Prosecutor who triggers the exercise of the Pre-Trial Chamber’s jurisdiction
under article 18(2), and in that sense may be considered the ‘moving party’.

54. Yet, on the other hand, it is also clear from the terms of article 18(2) that the Prosecutor’s
deferral to the State’s investigation is not “automatic[]”.85 Rather, depending on the assessment
of the material submitted, the Prosecutor decides whether to seise the Pre-Trial Chamber of the
matter or not (“shall defer […] unless”). In doing so, the Prosecutor does not himself make any
new request to the Pre-Trial Chamber, but merely transfers the authority provisionally vested
in him to assess the State’s deferral request, and explains his assessment and the nature of his
concerns.

55. From the time at which the deferral request is made, and pending either its acceptance by
the Prosecutor or its acceptance or rejection by the Pre-Trial Chamber, the Prosecution
reiterates that it suspends its investigative activities in good faith so that it does not prejudice
the outcome of the assessment of the deferral and the supporting information.86 However, this
does not mean that the deferral request is automatically effective before it is ever assessed. This
approach is the only logical interpretation of article 18(2), consistent also with articles 18(3)

85
Contra Appeal, para. 72. See also J.T. Holmes, ‘Jurisdiction and admissibility,’ in R. S. Lee et al. (eds.), The
International Criminal Court: Elements of Crimes and Rules of Procedure and Evidence (Transnational: 2001)
(“Holmes (2001)”), p. 340 (“faced with a request by a State, the Prosecutor has several options”).
86
See e.g. Prosecution Article 18(2) Request, paras. 8 (recalling that the Prosecution “temporarily suspended its
investigative activities” on the day it received the Philippines’ request for deferral “to assess the scope and effect”
of that request), 31 (fn. 50: speculating whether an invalid request for deferral, which does not comply with rule
54, would require the Prosecution to “suspend” its investigation); ICC-01/21-14 (“Notice of Deferral Request”),
para. 3 (stating that the Prosecution had “temporarily suspended its investigative activities while it assesses the
scope and effect of the Deferral Request”).

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and (5),87 while also preserving the rights of the State requesting deferral.88 Indeed, it is notable
that the wording of article 18(5) and (6) (“[w]hen the Prosecutor has deferred an investigation”)
tends to imply an active decision by the Prosecutor.

56. In this more substantive sense, therefore, the State requesting deferral remains the
‘moving party’ since one or more of the legal or factual assertions underlying its deferral
request remains to be decided by the Pre-Trial Chamber when it is seised under article 18(2)—
and, correspondingly, it is the State which actually seeks “to change the status quo” by its
(unresolved) request to defer the investigation which has just been opened by the Court.89 For
its part, the Prosecution assumes the role of a respondent by contesting the accuracy or
interpretation of the State’s assertions.90

57. The delicate balance which was evidently struck in article 18(2) underscores the bespoke
nature of the procedure created by the drafters of the Statute,91 and hence the importance of
interpreting this provision correctly in light of its context and the object and purpose of the
Statute. While unusual, the initial ‘filtering’ function bestowed upon the Prosecutor makes
practical sense in at least two key ways. First, it recognises that, on the basis of the preliminary
examination, the Prosecutor is best placed to appreciate the range of potential cases which fall
within the parameters of the situation, and thus to carry out an initial evaluation of a deferral
request. Second, it ensures that the Prosecutor has as long as necessary to assess the deferral
request and supporting information, so that such matters proceed to adjudication by the Pre-
Trial Chamber only where appropriate.92 Yet neither of these functions pre-supposes that the

87
In particular, if the State’s deferral request under article 18(2) were automatically to become effective the
moment it was first received—prior to any assessment by the Prosecution of the supporting information—this
would also trigger the six month time period in article 18(3), leading to the implausible conclusion that the
Prosecution would potentially be entitled to commence a review of the State’s investigation before or very soon
after it had completed its assessment of circumstances of the original request, and potentially before the Pre-Trial
Chamber has the opportunity to make a ruling if called upon to do so. Likewise, in this scenario, potential conflict
or overlap would arise between the powers conferred upon the Prosecutor to request further information from the
State under rule 53 and article 18(5). By contrast, these conundrums are solved if the deferral—and hence the
application of articles 18(3) and (5)—becomes effective at the time it is accepted either by the Prosecutor or,
alternatively, the Pre-Trial Chamber. See also below para. 68.
88
The acceptance by the Prosecution of a duty to suspend its investigative activities in good faith, pending the
assessment of the deferral request, also accommodates the absence of any specific time frame in the Court’s legal
texts for the Prosecutor to carry out that assessment and to decide whether to seise the Pre-Trial Chamber of the
matter or not.
89
Contra Appeal, para. 69.
90
Contra Appeal, para. 73. See also Prosecution Article 18(2) Request, paras. 39-40.
91
See also D. Nsereko and M. Ventura, ‘Article 18: preliminary rulings regarding admissibility,’ in K. Ambos
(ed.), The Rome Statute of the International Criminal Court: Article-by-Article Commentary, 4th Ed. (C.H.
Beck/Hart/Nomos: 2022) (“Nsereko and Ventura”), p. 1017 (mn. 14).
92
See above fn. 88.

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Prosecutor must then bear the burden of proof if he decides it is necessary for the State’s
deferral request to be considered by the Pre-Trial Chamber.

58. This is supported by the drafting history, which sought to allow for the possibility of
dialogue between the Prosecution and States with jurisdiction over article 5 crimes, if this was
not exhausted in the context of the preliminary examination.93 Yet this did not necessitate that
the State’s deferral request must automatically be effective, such that the Prosecution then bears
the burden of proof. In this context, the fact that the drafters described the article 18 procedure
as a “[p]reliminary ruling” on admissibility is not dispositive; whether or the not the State may
be said to have made a “challenge” is immaterial.94 If anything, the term “preliminary ruling”
merely emphasises that the Pre-Trial Chamber’s focus at this stage should not be on undue
technicalities about the appropriate allocation of the burden of proof, but the substantive
question whether the deferral request is justified.95

59. Furthermore, the fact that the Prosecutor is vested with a choice in determining how to
proceed under article 18(2), even if limited in the terms described above, undermines the view
of some commentators that the State requesting deferral is entitled to a legal or evidentiary
presumption that its exercise of jurisdiction is “regular, genuine, and otherwise effective, until
the contrary is proven.”96 This view was expressly based on the incorrect assumption that a
“request” from a State seeking deferral is not “really […] a request”, but a “demand or an
assertion” in as much as “the Prosecutor has no choice but to defer”. 97 To the contrary, it is
clear from article 18(2) that the Prosecutor need not concur in a State’s request for deferral, and
that—when seised by the Prosecutor—a Pre-Trial Chamber may in turn authorise the
resumption of the Court’s investigation notwithstanding that request.

60. In this context, and notwithstanding the respect due to the sovereignty of all States, it is
manifestly insufficient for a State merely to “assert[] its superior jurisdiction” and then expect
“the Prosecution to make the argument as to why the State is precluded from exercising this
right”.98 This rests on two misconceptions.

93
See e.g. J.T. Holmes, ‘Complementarity: national courts versus the ICC,’ in A. Cassese et al., (eds.), The Rome
Statute of the International Criminal Court: a Commentary, Vol. I (OUP: 2002) (“Holmes (2002)”), p. 681; C.
Stahn, ‘Admissibility challenges before the ICC: from quasi-primacy to qualified deference?’ in C. Stahn (ed.),
The Law and Practice of the International Criminal Court (OUP: 2015), p. 240.
94
Contra Appeal, paras. 70-71. Compare Holmes (2001), p. 338 (describing article 18 in any event as “a form of
challenge”).
95
See further below paras. 74-77.
96
Contra Appeal, paras. 69, 72 (fns. 56, 59: quoting Nsereko and Ventura, pp. 1026-1027 (mns. 44, 48)).
97
Nsereko and Ventura, p. 1026 (mn. 44).
98
Contra Appeal, para. 74.

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• First, as the Appeals Chamber has previously held, “it is an essential tenet of the rule of
law that judicial decisions must be based on facts established by evidence”, which is the
very “hallmark of judicial proceedings”99—and this applies no less to submissions by
States on matters of admissibility arising under article 17(1).100 Necessarily, in this
context, the State must therefore present those facts which it considers to be relevant, in
accordance with rules 53 and 54(1).

• Second, even if the Pre-Trial Chamber may ultimately authorise the resumption of the
Court’s investigation notwithstanding a deferral request, nothing precludes the State in
question from continuing to exercise its jurisdiction thereafter. To the contrary, it is
implicit in articles 18(7) and 19(2) that the State may continue to exercise its
jurisdiction. In doing so, it may well be in a position to mount a successful admissibility
challenges to cases subsequently investigated by the Court in which prosecutions are
commenced.

B.1.b. The analysis required by article 17(1)(a) to (c) strongly favours the allocation of the
burden of proof to the State requesting deferral, and this is consistent with rules 53-54

61. The requirements of article 17(1)(a) to (c) provide essential context for the correct
interpretation of article 18(2). The close relationship between article 18(2) and the assessment
of complementarity as defined in article 17(1)(a) to (c) is illustrated by the reference in article
18(3) to “a significant change of circumstances based on the State’s unwillingness or inability
genuinely to carry out the investigation”,101 and the express requirement of rule 55(2) that the
Pre-Trial Chamber “shall consider the factors in article 17” in deciding whether to authorise
the resumption of an investigation. This has previously been confirmed by the Appeals
Chamber.102

62. As further developed in response to Ground Four, the Philippines is incorrect to assert
that the Pre-Trial Chamber was obliged to determine whether “the deferral request was not
genuine”.103 Rather, consistent with the guidance of the Appeals Chamber104 (which the

99
See e.g. Muthaura et al. Admissibility Appeal Judgment, para. 61 (quoting ICC-02/04-179 OA (“Uganda Victim
Participation Appeal Judgment”), para. 36; ICC-02/04-01/05-371 OA2 (“Kony et al. Victim Participation Appeal
Judgment”), para. 36); Ruto et al. Admissibility Appeal Judgment, para. 62.
100
See e.g. Muthaura et al. Admissibility Appeal Judgment, paras. 43, 62; Ruto et al. Admissibility Appeal
Judgment, paras. 44, 63.
101
See also Holmes (2001), p. 343.
102
Muthaura et al. Admissibility Appeal Judgment, para. 37; Ruto et al. Admissibility Appeal Judgment, para. 38;
Afghanistan Article 18(2) Decision, para. 46.
103
Contra Appeal, para. 75.
104
ICC-01/04-01/07-1497 OA8 (“Katanga Admissibility Appeal Judgment”), para. 78.

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Philippines elsewhere seems to accept),105 the Chamber found that it was required to determine
“(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”, since “[i]naction by the State having jurisdiction means that the question
of unwillingness or inability does not arise”.106 Only if the Chamber identified relevant and
sufficient national proceedings was it required to “consider whether a State is unwilling and
unable to genuinely carry out any such investigation or prosecution”.107

63. The obligation on the Pre-Trial Chamber, first, to determine the existence and scope of
relevant domestic proceedings in order to make its ruling under article 18(2) has important
implications for the allocation of the burden of proof. This is because the State is uniquely
placed to determine whether and to what extent such information—which may not be publicly
known—is made available to the Court. This is recognised by the general requirement in rule
53 for the State requesting deferral of the Court’s investigation to “provide information
concerning its investigation”. Moreover, while the Prosecutor “may request additional
information” from that State, the State is under no obligation to provide such information.108
By requiring the Prosecutor to communicate the information provided under rule 53, rule 54(1)
recognises that this information is likely to form the factual context for any determination by
the Pre-Trial Chamber under article 18(2).

64. Accordingly, if the burden of proof under article 18(2) were to be allocated to the
Prosecution, a State could assert that it was carrying out relevant domestic proceedings for the
purpose of requesting deferral of the Court’s investigation but provide little or no information
to establish their actual existence or scope. The Prosecution’s only recourse would be to trigger
the exercise of the Pre-Trial Chamber’s jurisdiction under article 18(2)—but then it would be
faced not only with the inherent difficult of proving an absence of relevant action, but would
also have had no effective procedural means to have gathered the requisite information.

65. Conversely, allocating the burden of proof to the State requesting deferral of the Court’s
investigation strikes a fair balance. The State has free rein to decide the terms in which it will
frame a request for deferral, and the information that it will provide in support of that request.
The Prosecutor may request additional information, if it will help elaborate that request. But in

105
Appeal, para. 77.
106
Decision, para. 11. See also Afghanistan Article 18(2) Decision, para. 44; Prosecution Article 18(2) Request,
paras. 44-49.
107
Decision, para. 11.
108
See Holmes (2001), p. 341.

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the event that the information presented is ultimately insufficient to justify the deferral
requested in its own terms, in the assessment of the Pre-Trial Chamber, then it is the State
which bears that risk.

66. It is conspicuous that, in this ground of the Appeal, the Philippines neither addresses the
significance of the Pre-Trial Chamber’s assessment under article 17(1), when it is seised under
article 18(2), nor the effect of rules 53 or 54.109

B.1.c. The other sub-provisions of article 18 are consistent with the allocation of the burden of
proof to the State requesting deferral

67. Nothing in the other sub-provisions of article 18 shows any reason to doubt the principles
set out above; to the contrary, they support the allocation of the burden of proof to the State
requesting deferral.

68. For example, the Philippines seems to rely on the Prosecutor’s power to review any
deferral of the Court’s investigation, once effective, under article 18(3)—and its associated
power to request periodic updates from the State in question under article 18(5)—to support its
arguments concerning article 18(2).110 Yet the two procedures are unrelated: while the
Prosecutor’s power to trigger the exercise of the Pre-Trial Chamber’s jurisdiction under article
18(2) precedes any deferral of the Court’s investigation, the Prosecutor’s powers under article
18(3) and (5) follow a deferral of the Court’s investigation. Not only is this evident from the
plain terms of these provisions, but a comparison of rules 54 and 56 make clear that proceedings
under article 18(2) and (3) are wholly distinct. Irrespective of the allocation of the burden of
proof for Prosecution applications under article 18(3), nothing in article 18(3) speaks to the
correct allocation of the burden of proof for article 18(2).

69. Indeed, article 18(6) further confirms that the Prosecutor’s deferral to the State’s
investigation is not “automatic[]”, as the Philippines contends, but rather depends on the
Prosecutor’s assessment of the material submitted and election whether to seise the Pre-Trial
Chamber of the matter or not, as stated above.111 Notably, article 18(6) enables the Prosecutor
to seek exceptional authority from the Pre-Trial Chamber to preserve evidence in two distinct

109
See Appeal, paras. 63-75. Compare para. 77 (referring to rules 54 and 55 in the context of the third ground of
appeal).
110
See Appeal, para. 73.
111
See above para. 54.

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situations: “[p]ending a ruling by the Pre-Trial Chamber, or at any time when the Prosecutor
has deferred an investigation” (emphasis added).

70. As such, this clause expressly recognises that, in the time pending an article 18(2) ruling
by the Pre-Trial Chamber (which also includes the period in which the Prosecutor has not yet
decided whether to trigger the jurisdiction of the Pre-Trial Chamber), the Prosecutor is not yet
deemed to have “deferred” their investigation. This is without prejudice to any obligation on
the Prosecutor in good faith not to act inconsistently with that request by suspending
investigative activities until a determination is made whether to accept the deferral request.112
It is the logical corollary of this fact that the State’s deferral request is not yet resolved at this
time, but merely transferred to the jurisdiction of the Pre-Trial Chamber—and therefore that
the State retains the burden of proof accordingly.

B.1.d. The object and purpose of the Statute favours a full and proper assessment whether a
request for deferral is justified, and this is consistent with allocating the burden of proof to the
requesting State

71. Finally, while the Philippines is correct that the principle of complementarity is at the
heart of the object and purpose of the Statute, it suggests an overly narrow construction of this
principle.113 Complementarity does not mean that the jurisdiction of the Court is always and
only subordinate to the jurisdiction of a State. Rather, it means that the Court and States share
a common mandate “to put an end to impunity for the perpetrators” of the most serious crimes
of concern to the international community, and are resolved jointly “to guarantee lasting respect
for and the enforcement of international justice”.114 In executing that mandate, the Court’s
jurisdiction is complementary to that of States115—which means that the Court shall defer its
investigation, or render cases inadmissible, in those circumstances set out in article 17.

72. Notably, in the Venezuela decision quoted by the Philippines, the Pre-Trial Chamber had
expressly framed its assertion that States bear the “primary responsibility” for exercising
jurisdiction over article 5 crimes in the context of recalling that, under article 18, States have
the opportunity “to advance the arguments and provide the information […] consider[ed]
necessary”.116 This further illustrates that the principle of complementarity, and the object and

112
See above para. 55.
113
Contra Appeal, para. 74.
114
Statute, Preamble.
115
See also Katanga Admissibility Appeal Judgment, para. 85 (“the complementarity principle […] strikes a
balance between safeguarding the primacy of domestic proceedings vis-à-vis the […] Court on the one hand, and
the goal of the Rome Statute to ‘put an end to impunity’ on the other”).
116
ICC-02/18-9-Red (“Venezuela Decision”), para. 15. Compare Appeal, para. 74.

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purpose of the Statute, does not call for an interpretation of article 18(2) which prioritises a
State’s assertion of its “superior jurisdiction” over that of the Court, regardless of the facts. To
the contrary, as the Appeals Chamber has recalled, the principle of complementarity makes it
incumbent upon the Court “to ensure that it will not step in should a case be inadmissible under
the relevant criteria”—but it is “not the case that all cases must be resolved in favour of
domestic investigation”.117

73. The object and purpose of the Statute thus favours an interpretation of article 18(2) which
will be most effective in enabling a full and proper assessment whether a request for deferral is
justified. In particular, it is notable that such determinations will take place relatively soon after
one or more organs of the Court, in accordance with articles 15(3) and (4) or 53(1),
independently determined that there is a reasonable basis to proceed with an investigation.

B.2. The Decision would not be materially affected even if the Prosecution had borne the
burden of proof

74. In any event, and notwithstanding the above, the Philippines also fails to show that the
Decision would be materially affected even if the Pre-Trial Chamber had erred in stating that
“the onus is on the State to show that investigations or prosecutions are taking place or have
taken place”.118 While it generally asserts that any error in this regard “led to a cascade of legal
errors” further set out in its third and fourth grounds of appeal, it fails to adequately substantiate
this claim.119

75. To the contrary, irrespective of whether the Prosecution or the Philippines was subject to
the burden of proof, the Chamber ensured that the Philippines had full opportunity to make
observations on the law and facts presented to the Chamber by the Prosecutor,120 and the
Philippines availed itself of this opportunity,121 including by filing “hundreds of pages of
associated annexes”.122 Analysis of the Decision further reveals that the Chamber duly applied
the law to the information presented to it under rule 54(1), and by the Philippines in the annexes
to its observations in response.

117
ICC-01/11-01/11-547-Red OA4 (“Gaddafi First Admissibility Appeal Judgment”), para. 78. See also Muthaura
et al. Admissibility Appeal Judgment, para. 43; Ruto et al. Admissibility Appeal Judgment, para. 44 (recalling
that, “[i]f the suspect or conduct have not been investigated by the national jurisdiction, there is no legal basis for
the Court to find the case inadmissible”).
118
Decision, para. 14.
119
Contra Appeal, para. 75.
120
See e.g. Order Inviting Observations.
121
See Observations of the Government of the Philippines on the Prosecution Article 18(2) Request.
122
ICC-01/21-54-Red (“Prosecution Response to Observations of the Government of the Philippines”), para. 5.

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76. On the basis of its analysis of that information, the Chamber determined that “the various
domestic initiatives and proceedings relied on by the Philippines 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 investigation as
authorised in the Article 15(4) Decision.”123 It emphasised that it considered the “various
domestic activities in a holistic manner”, and that “in some instances investigative steps have
been taken or are ongoing, albeit only with regard to low-ranking law enforcement
personnel”.124 However it concluded that “the totality of the national investigations and
proceedings presented to the Chamber do not sufficiently, or at all, mirror the Court’s
investigation.”125

77. The Philippines fails to show how any aspect of this analysis would have been materially
affected if the Chamber had reached a different view as to the burden of proof. To the contrary,
the same information would have been before it, since this was required by rule 54(1). It would
have had the same opportunity to receive the submissions of the Philippines, and additional
information. And it would have reached the same conclusions, since these did not result from
the burden of proof but from the assessment of the information actually presented in accordance
with the applicable substantive law.

78. For all these reasons, the Prosecution respectfully submits that the Philippines’ Second
Ground should be dismissed.

C. Third ground of appeal: the Chamber correctly assessed, for the purpose of article
18(2), whether the Philippines’ investigation sufficiently mirrored the Court’s
investigation

79. In the Decision, the Chamber directed itself that it must examine the information
presented to it, and consider the factors in article 17 as required by rule 55(2).126 Accordingly,
in its view, “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 in which
the test is applied”.127 For the purpose of proceedings under article 18, it recalled the dictum of

123
Decision, para. 96.
124
Decision, paras. 97-98.
125
Decision, para. 98.
126
Decision, para. 10. See also above para. 61.
127
Decision, para. 12. See also Afghanistan Article 18(2) Decision, para. 46.

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the Appeals Chamber that “the contours of ‘likely cases will often be relatively vague because
the investigations of the Prosecutor are at their initial stages’.”128 It continued:

Nonetheless, 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 as the investigations before the Court. This 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. Depending on the situation, the latter investigation may look into a large
number of crimes, and cover a large geographical area and timeframe. Consequently,
what is required by this provision is a comparison of two very different sets of
information that cannot easily be compared.129

80. The Chamber then concluded that:

In order to satisfy the complementarity 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 notified the concerned State
of the opening of an investigation, and its scope. Since, 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 cases’ that would arise from this situation.130

81. In its Appeal, the Philippines now claims that the Chamber erred in this analysis.131 While
the Philippines agrees that the Chamber was obliged to assess the factors in article 17,132 it
asserts that the Chamber erred in applying the “same person/same conduct test”—which it
considers only to be applicable to proceedings under article 19 concerning concrete cases.133 In
the Philippines’ view, while the Decision “correctly recognises that the degree of overlap with
the Prosecution’s investigations varies depending on whether it is at the article 18 or article 19
stage”, in practice it “appl[ied] the legal standard applicable to a case, overstating the degree
of overlap required in the article 18 context”.134 Consequently, the Chamber not only

128
Decision, para. 12 (quoting Muthaura et al. Admissibility Appeal Judgment, para. 38; Ruto et al. Admissibility
Appeal Judgment, para. 39). See also Afghanistan Article 18(2) Decision, para. 46.
129
Decision, para. 13. See also Afghanistan Article 18(2) Decision, para. 46.
130
Decision, para. 16.
131
Appeal, paras. 76, 83.
132
Appeal, para. 77.
133
Appeal, paras. 78-81 (asserting, for example, that “[t]he Pre-Trial Chamber’s reliance on this assessment is
taken out of context”). See also para. 138.
134
Appeal, para. 83.

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“require[ed] types of materials above and beyond what is required for article 18” but “also a
degree of mirroring with the Prosecution’s investigations which cannot reasonably exist at this
point in the proceedings.”135

82. The Philippines argues that this error materially affected the Decision because its “entire
approach” was “invalid”.136 Although apparently presented as the consequence of an alleged
error of law, many of the issues appear in fact to raise alleged factual errors, or a more general—
and unsubstantiated—disagreement with the Appeals Chamber’s well established requirement
for a showing of “evidence of a sufficient degree of specificity and probative value” in order
to establish relevant domestic proceedings for the purpose of complementarity.137 According
to the Philippines, the Chamber “reject[ed] swathes of information submitted to substantiate”
its request for deferral on the basis that it did not constitute evidence of a sufficient degree of
specificity and probative value,138 or otherwise “failed to assess the material presented in the
context of article 18”.139 In this guise, it rehearses various purported subsidiary errors relating
to the Chamber’s analysis of the information before it.

83. The Prosecution respectfully submits that the Philippines’ claims are incorrect. In
particular, the Philippines seems to accept—as it must—that the overall objective of the Pre-
Trial Chamber’s analysis under article 18(2) is to determine whether the domestic investigation
sufficiently mirrors the Court’s investigation. Yet it 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 materialised, such as under article 15 (by reference to
potential cases). This approach 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 basis of evidence rather than vague assertions or intentions. Indeed, as held in
the Kenya situation, “the admissibility assessment, whether of actual or potential cases, cannot
be conducted in the abstract. Rather, it must be carried out within the framework of certain
parameters.”140

84. Nor is this approach incompatible with article 18(2). Indeed, one of the principal strengths
of the established test is its flexibility. It can be appropriately adjusted to the particular features

135
Appeal, paras. 112. See also paras. 113-117.
136
Appeal, paras. 137, 140.
137
See e.g. Muthaura et al. Admissibility Appeal Judgment, para. 61; Ruto et al. Admissibility Appeal Judgment,
para. 62.
138
Appeal, para. 84.
139
Appeal, para. 118.
140
Kenya Article 15(4) Decision, para. 49.

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of the relevant procedural stage, as demonstrated by the Court’s practice under article 15.
Significantly, the Philippines does not present any viable alternative interpretation of article
18(2) that the Chamber could have taken.

85. Furthermore, and in any event, the Philippines’ criticism of the reasoning adopted by the
Chamber on specific issues is unfounded, and shows no error. It disregards the Chamber’s
holistic assessment of the materials submitted.

86. For all these reasons, the Third Ground should be dismissed.

C.1. The Chamber correctly determined whether the Philippines’ investigation sufficiently
mirrored the Court’s investigation

87. The Chamber adopted the correct approach in determining whether the domestic
investigation of the Philippines sufficiently mirrored the Court’s investigation so as to establish
an objective foundation for the request for deferral. While the Appeal is not entirely clear on
this point, the Philippines seems to argue that the ‘same person/same conduct’ test cannot be
applied for the purpose of article 18(2) because (i) it was derived from article 19 litigation;141
(ii) the Court’s investigation is insufficiently defined at the article 18 stage to allow relevant
comparators with domestic proceedings to be adequately identified;142 and (iii) States cannot
be expected to meet the requirements of the ‘same person/same conduct’ test at the article 18
stage.143 Notably, however, while criticising the approach of the Chamber, the Philippines fails
to articulate any alternative interpretation to assess complementarity in the context of article
18.

C.1.a. The ‘same person/same conduct’ test has not been reserved for challenges to concrete
cases under article 19

88. The Philippines correctly recalls that it was in the context of article 19 proceedings,
relating to a concrete case already being prosecuted at the Court, that the Appeals Chamber
first held that an inadmissibility challenge would only succeed if the national investigation
covered “the same person and substantially the same conduct as alleged in the proceedings
before the Court.”144 Yet it misapplies the notion that “the admissibility assessment is on a scale

141
Contra Appeal, paras. 76-83.
142
Contra Appeal, paras. 112-118.
143
Contra Appeal, paras. 76-140.
144
Muthaura et al. Admissibility Appeal Judgment, para. 39; Ruto et al. Admissibility Appeal Judgment, para. 40.
See Appeal, paras. 80-81.

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of sorts”, and wrongly asserts that the ‘same person/same conduct’ test is reserved for article
19 proceedings.145

89. To the contrary, while the Appeals Chamber did contrast the relative specificity of
concrete cases subject to article 19 challenges with ‘potential cases’ relevant to articles 15 and
18,146 it did not dispense with the need for objective parameters—which can only be based on
the persons or groups of persons under investigation and their alleged conduct, or the “same
person/same conduct” test as described by the Philippines. Furthermore, since the
complementarity assessment by definition entails resolving an asserted conflict of jurisdiction,
it must always entail a comparison of State activities with the Court’s activities. As well
established in the practice of the Court, these core principles can and must apply equally before
concrete cases have been identified at the Court. Indeed, it is clear from the express terms of
article 18(2) that the State requesting deferral is invited to inform the Court of the specific
persons and crimes under investigation, as the basis for its request.147

90. While the Appeals Chamber has since clarified the narrower scope of the Pre-Trial
Chamber’s duty under article 15(4),148 its prior consistent practice amply illustrates this
approach in assessing complementarity for the purpose of articles 53(1)(b) and 15(4), and not
only for the purpose of article 19. This seems to be overlooked by the Philippines. For example:

• In the Kenya situation, the Pre-Trial Chamber reviewed whether any domestic
proceedings existed “in relation to these elements which are likely to constitute the
Court’s future case(s)”, defined by reference to “the groups of persons involved” and
“the crimes within the jurisdiction of the Court allegedly committed.149

145
Contra Appeal, para. 82.
146
Muthaura et al. Admissibility Appeal Judgment, paras. 39-40; Ruto et al. Admissibility Appeal Judgment,
paras. 40-41.
147
Statute, art. 18(2) (“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”, emphasis added). See also ICC RPE, rule
53 (“that State shall […] provide information concerning its investigation”).
148
See e.g. Afghanistan Article 15(4) Appeal Judgment, paras. 34-35, 37. The Appeals Chamber’s clarification
has not invalidated the Pre-Trial Chamber’s previous approach to assessing admissibility at the preliminary
examination stage, but merely clarified that it is an obligation of the Prosecutor rather than the Pre-Trial Chamber:
see e.g. Article 15(4) Decision, paras. 14-16 (noting expressly that, “in determining whether to make a request
under Article 15(3), the Prosecutor remains obliged under Rule 48 of the Rules to consider all the conditions under
Articles 53(1)(a) to (c)”).
149
See Kenya Article 15(4) Decision, para. 182. See further paras. 183-187.

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• In the Côte d’Ivoire situation, the Pre-Trial Chamber reviewed whether any domestic
proceedings existed “in relation to the individuals and crimes that are likely to constitute
the Court’s future case(s)”.150

• In the Georgia situation, the Pre-Trial Chamber directed itself to consider whether any
domestic proceedings existed “in relation to the persons or groups of persons as well as
the crimes which appear to have been committed on the basis of the information
available at this stage, which together would be the subject of investigations and likely
to form the potential case(s) before the Court.”151

• In the Burundi situation, the Pre-Trial Chamber sought to ascertain whether any
domestic proceedings covered the same individuals and substantially the same conduct
as the potential cases arising from the situation before the Court.152

91. The consistency of resort to this approach also illustrates the difficulty in identifying any
practicable alternative. Without some appropriate degree of reference to (i) the persons or
groups of categories of persons who are the object of any investigation(s) and (ii) the crimes
which they are alleged to have considered, it is hard to imagine how any meaningful
comparators could be identified. Nor does the Appeal concretely suggest any comparators it
considers would have been more appropriate.153 While the Philippines seems to suggest that it
is merely “the prima facie existence” of a State’s investigation which must be assessed for the
purpose of article 18(2),154 this does not answer the question.

92. To the contrary, attempting to make an assessment under article 18(2) without the use of
relevant comparators would be incompatible with the requirement for article 17 assessments to
be objective and fact-driven, and would undermine the core purpose of article 18—which is to
resolve a conflict of jurisdiction if and when it objectively exists. Given the potential breadth
of the Court’s investigation at the article 18 stage, this may be exceptional—but this does not
limit the significance of the complementarity principle. To the contrary, after the article 18
stage, the State remains fully able to challenge the admissibility of each and every case which
may come to be prosecuted at the Court pursuant to article 19 of the Statute.

150
ICC-02/11-14-Corr (“Côte d’Ivoire Article 15(4) Decision”), para. 194. See further paras. 195-200, 206.
151
Georgia Article 15(4) Decision, para. 39. See further paras. 40-50.
152
See Burundi Article 15(4) Decision, paras. 147, 181. See further paras. 148-180, 182.
153
See Appeal, paras. 76-83.
154
See e.g. Appeal, para. 131.

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C.1.b. 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 seeking deferral

93. The Philippines further argues that the Chamber’s approach is inapposite “at the article
18 stage whereby the contours of the Prosecution’s investigations concerning a specific case
are undefined and unclear.”155 However, this is incorrect. To the contrary, as again illustrated
by the Court’s practice under articles 53(1)(b) and 15, the concept of the ‘potential case’ enables
a meaningful comparison to be carried out.

94. Since the Prosecution is highly unlikely to have yet identified concrete cases in the limited
period in which a State is permitted to request deferral under article 18(2), the Statute
necessarily presupposes the comparison of that State’s investigative activities against the
broader framework of the Court’s investigation at that point. As the Chamber stated, the starting
point for the article 18(2) analysis are the general parameters of the situation—which were
defined here by the Chamber’s decision under article 15(4) and the Prosecutor’s notification to
States under article 18(1).156 The Philippines does not clearly challenge this finding.

95. Within the limits of those parameters, it follows then that the Prosecutor may potentially
investigate any person suspected of relevant criminal conduct. Necessarily, at the article 18
stage, the Prosecution’s investigation will not be sufficiently advanced to identify the concrete
cases to be pursued. Accordingly, the investigative activities of the State requesting deferral
must be compared with the sum of “potential cases”157—a notion which, again, is well
established in the practice of the Court when considering complementarity for the purpose of
preliminary examinations. For example, in the Kenya situation, the potential cases in the
situation were defined by reference to “(i) the groups of persons […] that are likely to be the
object of an investigation for the purpose of shaping the future case(s)” before the Court and
“(ii) the crimes within the jurisdiction of the Court allegedly committed […] that are likely to
be the focus of an investigation for the purpose of shaping the future case(s).”158

96. For the purpose of article 18(2), furthermore, it cannot be known how many concrete
cases will be pursued at the Court, since this is a matter within the Prosecutor’s independent
discretion. Consequently, the article 18(2) assessment cannot require the State to have initiated
proceedings in every case which might conceivably be prosecuted before the Court, but nor can

155
Appeal, para. 116. See also paras. 112-113, 115.
156
Decision, para. 16.
157
Decision, para. 16 (referring to “the backdrop of a situation and the ‘potential cases’ that would arise from this
situation”).
158
Kenya Article 15(4) Decision, para. 182. See also Côte d’Ivoire Article 15(4) Decision, para. 191.

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it be sufficient for the Court’s investigation to be deferred when significant numbers and types
of potential cases are not addressed in the State’s investigation. Accordingly, it is necessary for
the Pre-Trial Chamber to be satisfied that the State’s investigation sufficiently mirrors the full
potential of the Court’s investigation.159 In practice, this means that the State’s investigation
must be measured against the variety of potential cases which are disclosed by the parameters
of the situation, having regard to factors including the variety of alleged crimes and types of
victimisation, the variety of persons or groups of persons allegedly involved, and the variety of
means by which those crimes may allegedly have been carried out (including potentially
differentiated responsibilities between perpetrators, accessories, and so on).

97. Any asymmetry in detail between the cases identified by the State and the potential cases
provisionally identified within the situation before the Court does not preclude a proper
assessment under article 18(2). Necessarily, the Statute contemplates that the Court’s
investigation is at an early stage—and while it may be expected that the State’s investigation
is relatively more advanced, this is not necessarily required, as explained further below.

C.1.c. Comparing the State’s investigation with the Court’s intended investigation is not
incompatible with the stage at which article 18 is applicable

98. More generally, the Philippines’ argument seems to reflect concerns that the Chamber’s
approach is in some way incompatible with the stage at which article 18 applies. However, any
such concerns are misconceived, and do not identify any error in the Chamber’s approach.

99. First, the Philippines asserts that the drafters of the Statute did not intend to place States
“in competition” with the Court, but rather that article 18 was designed to promote dialogue.160
Yet nothing in the Chamber’s approach suggests the contrary. If anything, meaningful dialogue
is facilitated by a clear understanding of the scope of the State’s and the Court’s investigations,
and the ‘same person/same conduct’ test promotes precisely that.

100. Second, the Philippines states that “article 18 was never intended to preclude [S]tates
from commencing investigations upon receipt of an article 18(1) notification”, and asserts that
this is “rendered impossible” if the State is then expected to sufficiently mirror the Court’s
investigation, which may be broad in scope.161 However, again, nothing in the Decision
suggests the contrary. While the dictum from the Afghanistan judgment is inapposite in this

159
See above para. 80. See further Prosecution Article 18(2) Request, paras. 54-57.
160
Appeal, para. 116.
161
Appeal, para. 116.

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situation (insofar as it concerns the possibility of a State expressly requesting a partial deferral
of the Court’s investigation, whereas in this situation the Philippines requested a full
deferral),162 the analysis adopted by the Chamber did not require domestic proceedings to have
reached any particular procedural stage.163 Instead, it merely required the Philippines to provide
sufficient information permitting the Chamber to identify the scope and focus of the domestic
proceedings so that they might meaningfully be compared against the scope of the authorised
investigation.

101. In particular, nothing in the Decision excludes the possibility that domestic proceedings
remain “in progress” when they are analysed for the purpose of article 18(2).164 To the contrary,
as the Chamber emphasised, it was specifically looking for investigative steps which were
tangible, concrete, and “progressive”. This last condition does not mean that domestic
proceedings must have reached a certain procedural stage, but merely that evidence was
presented that they were not vague, interrupted or suspended, or inactive. Nor did the
Chamber’s efforts to identify relevant comparators in domestic proceedings for the purpose of
its article 18(2) analysis mean that it was blind to proceedings at their earlier stages—provided
they were sufficiently tangible and concrete that they could meaningfully be compared with the
Court’s investigation. Indeed, as the Appeals Chamber recalled, “any investigation, irrespective
of its stage, will have defining parameters”, even if it may be that the specific “contours” will
“develop as time goes on”.165

102. In a related argument, the Philippines fails to identify any passage of the Decision which
supports its claim that the Chamber required any showing that trials had actually taken place
or were imminent.166 Rather, it seems to take out of context the Chamber’s factual observation
that, in circumstances pertaining to alleged criminal prosecutions, there was insufficient
information concerning the progression of the proceedings in question. This did not mean, for
example, that evidence of tangible, concrete, and progressive investigations at the pre-charge
stage would not have been taken into consideration by the Chamber—to the contrary, the
Decision shows that it sought in detail to identify such evidence.

103. Finally, the Philippines also generally argues that the existence of article 18(5)—which
allows for the Prosecutor to seek “periodic updates on the progress of national investigations”

162
Contra Appeal, para. 117.
163
See also below para. 111.
164
Contra Appeal, paras. 118, 139.
165
Gaddafi First Admissibility Appeal Judgment, para. 84.
166
Contra Appeal, para. 93.

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once the Court’s investigation has been deferred—must imply a more relaxed approach to
assessing whether a deferral request has an objective foundation in the first place.167 However,
this logic is untenable. Article 18(5) enables the Prosecutor—and, ultimately, the Court through
the mechanism of article 18(3)—to verify that a deferral does not permit the State in question
merely to ‘shelve’ its domestic proceedings once the Prosecutor has deferred their
investigation. Yet this power says nothing about the precise standard to be applied to article
18(2) assessments in the first place. Indeed, however that assessment is calibrated, article 18(5)
would remain equally available to allow the Prosecutor to monitor State activity where deferrals
are accepted.

C.2. The Chamber did not err in assessing the information presented under rule 53(4) and
by the Philippines

104. The Philippines fails to show that the Chamber was either incorrect or unreasonable in its
analysis of any of the specific issues which it highlights in attempting to show the impact of
any error. Specifically, as the following paragraphs demonstrate, the Chamber did not err in
assessing: the lists of cases concerning the NBI and NPS;168 certain NBI investigative
materials;169 or information concerning PNP-IAS disciplinary proceedings.170 Nor did the
Chamber err in considering that the Philippines’ investigation does not presently extend to other
notable features of the Court’s own intended investigation, such as the alleged conduct of high-
ranking officials,171 alleged killings by private individuals outside police operations,172 alleged
killings in Davao,173 and crimes other than alleged killings.174

105. Since the Philippines articulates no concrete basis for its claim that the Chamber in some
way failed to have due “regard to the engagement of the Philippine Government” with these
proceedings, or how this related to any error, this last argument should be summarily
dismissed.175 It will not be addressed further.

106. In any event, even if it were shown that the Chamber had erred in some of these specific
issues, this would not necessarily establish that the Decision was materially affected.

167
See e.g. Appeal, paras. 93, 123. See also para. 120 (fn. 119).
168
Contra Appeal, paras. 87-93.
169
Contra Appeal, paras. 94-99.
170
Contra Appeal, paras. 100-111.
171
Contra Appeal, paras. 119-123.
172
Contra Appeal, paras. 124-128.
173
Contra Appeal, paras. 129-131.
174
Contra Appeal, paras. 132-136.
175
Contra Appeal, para. 139.

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Individually, none of these issues is critical to the ultimate conclusion that the Philippines’
investigation did not sufficiently mirror the Court’s investigation.

C.2.a. The Chamber did not err in assessing the lists of cases concerning the NBI and NPS

107. In support of its deferral request, among other material, the Philippines presented the
Court with various lists which on appeal it refers to as the ‘matrix of cases’ (a term not used in
the Decision). In particular, these related to the activities of the National Bureau of
Investigation (NBI) and the National Prosecution Service (NPS).

108. As the Chamber recalled, the Philippines presented “four lists in support of its claim that
cases related to the ‘war on drugs’ have been referred to the NBI for investigation and case
build-up”, and asserted that three of these lists involved “law enforcement personnel, who
conducted buy-bust and anti-illegal drug operations where the suspects had died,” and which
were “forwarded to the NBI for investigation.”176 The Chamber observed that “these lists do
include some information of each case, such as the case number, the names of law enforcement
officers involved, the names of suspects, locations and dates of the incidents and ‘remarks’”,
but that “this information is limited”.177 Ultimately, the Chamber found that these lists “are not,
by themselves, sufficient to substantiate concrete or ongoing investigative steps to support the
deferral of the Court’s investigation” because they lacked sufficient specificity and did not
contain “information enabling the Chamber to analyse whether investigative steps into the
conduct of the relevant law enforcement agents have in fact occurred or are occurring.”178

109. Likewise, the Chamber later recalled that the Philippines had presented “one list of cases
from ‘the dockets of the National Prosecution Service’” and “three lists of cases collated from
the dockets of three Regional Prosecution Offices”,179 along with other materials relevant to
different matters, in support of its claim that “‘the partial listing of cases in the dockets of the
NPS, relating to investigations into deaths during anti-narcotic operations’ clearly shows that
investigations have been conducted against police officers with respect to their conduct during
anti-illegal drug operations.”180 Again, the Chamber observed that these lists “do provide some
information on the cases referred to therein”.181 Specifically, the list from the NPS dockets
“includes limited details of the investigating office, region, name of the deceased, law

176
Decision, para. 72. See also Appeal, paras. 88-89.
177
Decision, para. 74.
178
Decision, para. 79. See also Appeal, para. 90.
179
Decision, para. 87. See also Appeal, para. 91.
180
Decision, para. 86.
181
Decision, para. 88.

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enforcement unit, respondents, and the status of each case as of May 2021”, while the three
regional dockets “include varying levels of information, but mainly contain particulars of an
administrative nature, such as the NPS Docket Number, the name of the victim or complainant,
and the offences charged.”182 Again, the Chamber found that, “[w]ithout more, it is unclear
how and whether the information in these lists relate to trials that actually took place, or are
taking place.”183

110. On appeal, the Philippines claims that the Chamber’s approach to these lists was
erroneous, insofar as it shows that the Chamber applied a standard that “goes well beyond the
scope of article 18 whereby the existence of the investigation is sufficient.”184 Moreover, it
suggests that the Chamber incorrectly required a showing that a trial “itself must have taken
place or [be] about to take place”.185

111. For the reasons stated above, the Philippines’ general argument concerning the
assessment required and the evidence to be submitted for the purpose of article 18(2) is
incorrect. Consequently, it shows no error for the Chamber to have applied this approach in the
context of the lists at issue here.186 The Chamber’s passing reference to uncertainty whether
“trials” were or were not taking place did not reflect any kind of legal requirement for
proceedings to have reached the trial stage, but rather the factual context of the documents in
question—which concerned the prosecutorial activities of the NPS. Notably, it made no such
reference to “trials” when considering the investigative activities of the NBI, which were
potentially of equal relevant to its assessment under article 18(2).187

112. In any event, and more specifically, the Philippines also fails to address other salient
reasons why the Chamber concluded that the lists were of themselves insufficient for the
purpose of article 18(2). For example, not only did just under 10% of the cases in the NBI lists
fall outside the temporal scope of the authorised investigation, but the Philippines had generally
provided no supporting documentation concerning any of the listed cases. In other words, the
Chamber was concerned that the Philippines had not provided information “outlining concrete
investigative activities” even though “the Philippines asserts that these cases have been referred
to the NBI for investigation and case build-up”.188 Of the 266 cases described in the four NBI

182
Decision, para. 88. See also Appeal, para. 91.
183
Decision, para. 88. See also Appeal, para. 92.
184
Appeal, para. 93.
185
Appeal, para. 93.
186
See above paras. 87-103.
187
Compare e.g. Decision, para. 79 (“investigative steps”), with Decision, para. 88 (“trials”). See also above
paras. 108-109.
188
Decision, para. 74 (emphasis added).

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case lists, within the temporal scope of the Court’s investigation, the Chamber found that the
Philippines “provided support for four cases that appear to have resulted in some form of
investigation or prosecution before having been dismissed by domestic institutions”, and
“partial support” for two further cases that were also ultimately dismissed.189 Likewise, with
regard to the NPS and regional dockets, that only one case mentioned therein was supported by
“corresponding or underlying prosecutorial documentation”.190 In these circumstances, since
the Philippines may reasonably be expected to have access to all such information, as recalled
elsewhere in the Decision,191 the Chamber was reasonable in approaching the lists with caution.

113. As such, the Chamber was neither incorrect nor unreasonable in its approach to the
information contained in the NBI lists and the NPS and regional dockets.

C.2.b. The Chamber did not err in assessing certain NBI investigative materials

114. Consistent with the preceding analysis, the Philippines recalls that it also presented “other
types of documentation” for the purpose of the deferral request, which it considered to give “an
overall description of investigative steps taken and case status”, including “NBI investigative
reports and notes and underlying municipal police reports.”192 While generally asserting that
the Chamber “demanded a level of interrogation and verification of official reports which is
not warranted in the article 18 context”, the Philippines gives just two examples.193

• First, the Philippines asserts that the Chamber erred in paragraph 89 of the Decision
when it dismissed “material which demonstrated that indictments had been
recommended by the NBI were now before regional courts” due to the “absence of
actual copies of the underlying indictments.”194

• Second, the Philippines asserts that the Chamber erred in paragraph 81 of the Decision
when it rejected “two detailed preliminary investigation reports conducted by NBI and
submitted before the Provincial Prosecutor” on the basis that that the “referenced
attachments which were apparently used to support each recommendation” were not
provided to the Court.195

189
Decision, para. 83 (emphasis added). See also paras. 80-82.
190
Decision, para. 88.
191
Decision, para. 56.
192
Appeal, para. 95.
193
Appeal, paras. 96-98.
194
Appeal, para. 97.
195
Appeal, para. 97.

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115. In the first respect, the Philippines fails to address the precise reasoning of the Chamber
concerning the significance of the missing indictments, and consequently fails to show any
error. In particular, the Chamber had noted information provided by the Philippines concerning
“recommended indictments against police officers”, including “brief summaries of the
recommended indictments and […] 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 are at trial
or remain at an investigative stage”.196 However, of the incidents to which this material
pertained, some incidents “are outside the temporal scope” of the Court’s investigation “and
therefore irrelevant”, and other incidents were only said “to have forthcoming criminal
complaints to be filed.”197 Of the remaining incidents, the Chamber did not insist that “the
indictments themselves” were provided, but noted more generally that “no further
documentation” at all had been provided (of which the indictments themselves were an
example).198 Furthermore, in a footnote, the Chamber noted that with regard to at least some of
these incidents “there is inconsistent documentation to suggest that the NBI has in fact
dismissed or terminated these cases for lack of evidence.”199 In these circumstances, there was
nothing unreasonable in the Chamber’s approach.

116. In the second respect, the Chamber did indeed consider that documentation concerning
two cases alleged investigated by the NBI was “incomprehensible without further explanation
and […] incomplete, as it references attachments which were apparently used to support each
recommendation but were not provided to the Court.”200 The Prosecution recalls that in its own
submissions it had taken the view that these cases were adequately substantiated.201 Yet this
does not necessarily mean that the Chamber was unreasonable in concluding that it was
consequently “difficult to assess whether these cases show tangible investigative activity.”202
Moreover, the Chamber further noted that even if those cases were considered to show such
activity, “the two cases appear to have been dismissed by the NBI, but no information is
provided about the reasons for the dismissals.”203 Finally, in any event, these two cases remain
a tiny fraction of the claims made by the Philippines concerning the activities of the NBI, and
consequently any error made by the Chamber in this respect, for the sake of argument, would
be harmless and could not materially affect its overall conclusions concerning the sufficiency

196
Decision, para. 89.
197
Decision, para. 89.
198
Decision, para. 89.
199
Decision, para. 89 (fn. 228).
200
Decision, para. 81.
201
Prosecution Article 18(2) Request, paras. 106 (fns.192-194), 116 (fns. 213-214).
202
Decision, para. 81.
203
Decision, para. 81.

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of the information presented with regard to NBI activities, let alone the sufficiency of the
information presented in support of the deferral request as a whole.

117. For these reasons, the Philippines fails to show that either of these examples demonstrate
that the Chamber applied an overly strict standard for the purpose of article 18(2). 204 To the
contrary, as explained above, the Chamber applied the correct standard.205 If the Chamber erred
harmlessly in the second respect, this appears to have resulted only from an isolated
misinterpretation of the relevant documentation relating to only a tiny portion of the overall
conduct.

118. Furthermore, the Philippines’ complaint that the Chamber “ignore[d] the reality of State
processes to coordinate official responses within the regulated timeframes before the Court” is
beside the point206—the gravamen of the Chamber’s concerns seems to lie in the more general
absence of information which could reasonably be expected to have been readily available to
the Philippines, not the fact that particular files may in some cases be incomplete, or that the
overall picture may be uneven. As noted, the Chamber conducted a holistic assessment of the
various domestic activities.207 Likewise, the Philippines’ implication that it did not know what
information to present to the Court because the information in the article 15 litigation and the
article 18(1) notification was “limited” is misconceived.208 To the contrary, the parameters of
the Court’s investigation were and are entirely clear. With regard to the particular NBI
investigative materials at issue here, it is apparent that the Philippines well understood the
relevance of the case to which these materials related. However, the Chamber’s concern in
practice was that the information actually provided was generally insufficient to adequately
substantiate the Philippines’ claims for the purpose of article 18(2).

C.2.c. The Chamber did not err in assessing information concerning PNP-IAS disciplinary
activities

119. The Chamber recalled that the Philippines had presented information concerning “internal
disciplinary proceedings conducted by the Philippines National Police – Internal Affairs
Service (the ‘PNP-IAS’) against PNP personnel”, which it averred “‘can ripen to criminal
investigations’.”209 It further noted the Philippines’ submission that “it was under the auspices

204
Contra Appeal, para. 99.
205
See above paras. 87-103.
206
Contra Appeal, para. 98.
207
Decision, para. 97.
208
Contra Appeal, para. 99.
209
Decision, para. 45. See also Appeal, para. 100.

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of the PNP-IAS that the 52 nanlaban cases were investigated by the NBI.”210 However, the
Chamber recalled that, for domestic proceedings to be relevant for the purpose of articles 17(1)
and 18(2), “they must be carried out ‘with a view to conduct[ing] criminal prosecutions’”. In
the Chamber’s view, “it is not entirely clear whether the PNP-IAS disciplinary proceedings
were conducted with the aim to further criminal proceedings”, and that in any event “at present
it is unknown whether the PNP-IAS internal disciplinary proceedings will lead to criminal
investigations in the future”.211 Consequently, excepting the NBI investigations of the 52
nanlaban cases which it addressed separately,212 the Chamber determined that the information
provided about PNP-IAS proceedings did not adequately show “tangible, concrete and
progressive investigative steps carried out with a view to conducting criminal proceedings” and
therefore did not of itself justify deferral under article 18(2).213

120. The Philippines now contends that the PNP-IAS material was presented to demonstrate
“the overall and general arc of the investigative processes connected to the anti-illegal drug
operations”,214 and describes what it terms an “investigative cycle—which demonstrably
resulted in prosecutions and convictions in connection to the anti-illegal drugs campaign”.215 It
criticises the Chamber for “review[ing] each stage in isolation”, demanding “information
concerning criminal prosecutions of specific cases […] beyond what is required”, and “fail[ing]
to conduct an assessment of the domestic processes available in the Philippines as a whole”
which it asserts to be “crucial […] given that it uniquely combines common law and civil law
features”, as well as facing “geographic and technological barriers”. 216 Overall, it asserts that
the Chamber “ignore[d] vital differences in legal cultures, traditions and systems” such that
“the type of information or processes available to a State will differ”, and that consequently the
Chamber erred by failing to “apply an article 18 admissibility assessment which should be
accepting of diverse domestic investigative practices.”217

121. The Philippines fails to show any error. Concerning the PNP-IAS proceedings of
themselves, it does not assert that the Chamber was incorrect or unreasonable in its particular
conclusions in that respect.

210
Decision, para. 45.
211
Decision, para. 47.
212
Decision, para. 47. See further paras. 75-78.
213
Decision, para. 48. See also Appeal, para. 101.
214
Appeal, para. 102.
215
Appeal, para. 108. See paras. 103-107.
216
Appeal, paras. 108-109.
217
Appeal, paras. 110-111.

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122. Rather, for the first time on appeal, the Philippines raises novel arguments concerning
domestic processes. It has never previously articulated a formal mandatory progression from
the PNP-IAS to review by the Department of Justice panel to case build-up by the NBI, nor in
any event does it now cite any clear basis under the law of the Philippines requiring that this
sequence is followed. In the understanding of the Prosecution, PNP-IAS investigations and/or
reviews by the Department of Justice panel are not legal prerequisites to the criminal
investigation or prosecution of a police officer. Furthermore, the Philippines presents no
authority to support its claim that domestic “procedural rules demand a lengthier investigation
phase while in turn, the commencement of court proceedings following investigation are
usually immediate.”218

123. Nor does the Philippines point to any concrete further action resulting from the PNP-IAS
proceedings which should have been taken into account by the Chamber, based on the
information presented. As the Appeals Chamber has previously stressed, a complementarity
assessment must be conducted based on the concrete facts as they exist at the material time,
and not based on speculation or future intentions.219

124. Further, the Philippines provides no support for its claim that the Chamber—whose
judges are nationals of three continents, reflecting diverse legal traditions—was in any way
blind to differences in legal culture or tradition, much less adopted an interpretation of the law
applying to article 18(2) which was inconsistent with the similarly diverse legal heritage of the
drafters of the Statute and the States Parties. To the contrary, as previously stated, the
Chamber’s application of the law was correct.220 This aspect of the Philippines’ appeal warrants
summary dismissal.

C.2.d. The Chamber did not err in considering that the Philippines’ investigation does not
presently extend to any high-ranking official

125. The Chamber found that “the domestic proceedings in the Philippines […] do not
sufficiently mirror the expected scope of the Court’s investigation, since they only address the
physical, low-ranking perpetrators and at present do not extend to any high-ranking

218
Appeal, para. 109.
219
See e.g. Muthaura et al. Admissibility Appeal Judgment, para. 30; Ruto et al. Admissibility Appeal Judgment,
para. 41 (recalling that “mere preparedness to take such [investigative] steps or the investigation of other suspects
is not sufficient”, and that it cannot be said there is a conflict of jurisdiction leading to potential inadmissibility
“unless investigative steps are actually taken in relation to the suspects who are the subject of the proceedings
before the Court”).
220
See above paras. 87-103.

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officials.”221 In its Appeal, the Philippines now asserts that the Chamber “ignored the fact that
the Philippine Government was investigating its nationals or others within its jurisdiction in
relation to the anti-illegal drug campaign” and simply “expected the current status of domestic
investigations to match future investigations of the Prosecution.”222 It considers that this is
“unreasonable” and incorrect in light of article 18(2), and “does not allow for progress within
domestic investigations”.223

126. For the reasons stated above, the Chamber was correct to determine that the Philippines
was not conducting proceedings relevant for the purpose of article 18(2) against high-ranking
officials since no sufficiently specific evidence of such proceedings was presented. 224 The
Philippines’ further observations in this respect are also misconceived.

127. The Philippines repeats its view that “the only way to establish the culpability of senior
officials is through the identification of leads between the direct perpetrator on the one hand
and the senior officials on the other”,225 which it had also submitted to the Chamber and which
was duly recorded in the Decision.226 Yet this overlooks that this issue was not salient merely
because of the seniority of the suspects as such—but rather as an indication whether the
Philippines’ investigation was directed to the conduct which could be charged at the Court as
crimes against humanity.227 In this regard, notably, the Prosecution had asserted that “the
Philippines has provided no information that it has investigated any pattern of criminality or
systematicity, including by those who would appear to be most responsible for conceiving or
implementing a policy.”228

128. Accordingly, within this context and for this purpose, the Chamber was neither incorrect
nor unreasonable in concluding that the investigations of low-ranking individuals did not
constitute sufficient tangible, concrete, and progressive steps towards this goal. In particular,
by focusing on low-ranking individuals, it was not clear how the Philippines was investigating
the question of the potential links between criminal incidents, which may be significant to the
contextual element of crimes against humanity. This conclusion is not altered by the
Philippines’ reiteration of its view that “the on-going investigations in the Philippines are […]

221
Decision, para. 68. See also Appeal, para. 119.
222
Appeal, para. 120.
223
Appeal, para. 120.
224
See above paras. 87-103.
225
Appeal, para. 121.
226
Decision, para. 67. See also para. 93.
227
Decision, para. 68.
228
Decision, para. 66. See also immediately preceding sub-title (“Policy element and systematic nature of the
alleged crimes”).

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focused on the most responsible perpetrators”, which “may very well be a low or mid-ranking
official.”229

C.2.e. The Chamber did not err in considering that the Philippines’ investigation does not
presently extend to alleged killings by private individuals outside police operations

129. The Chamber found that the Philippines “has not provided any material that would
suggest it has investigated alleged killings related to the ‘war on drugs’ that did not take place
as part of police operations”, and that consequently “the part of the authorised investigation
concerning private individuals does not appear to be covered by any domestic
investigations.”230

130. Yet relying on the Prosecution submissions when requesting the opening of the
investigation, the Philippines now asserts—for the first time, expressly231—that even alleged
“killings outside of police operations still had some link to law enforcement”, and therefore
that the investigation of law enforcement officials is “also a means to identify leads in relation
to the role of law enforcement in killings conducted outside of police operations.”232
Specifically, it also asserts that the Chamber overlooked material related to the so-called
“Davao Death Squad”.233

131. The Philippines is incorrect to assert that the 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 strict standard for the purpose of article 18(2). This is inaccurate,
for the reasons explained above.234 Furthermore, and in any event, it is the Philippines which
overlooks that the Chamber did not ignore domestic proceedings concerning the alleged Davao
Death Squad killings—which it expressly recalled235—but expressed concerns about the
specificity and probative value of the material provided.236 It further noted that the
Ombudsman’s investigation highlighted by the Philippines in the Appeal relates to alleged

229
Contra Appeal, para. 122. See Decision, para. 68 (“the Chamber observes 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 investigation’s focus”). See also para. 93.
230
Decision, para. 65. See also Appeal, para. 124; Decision, para. 64 (recalling that this issues concerns “alleged
murders outside the context of official police operations, including by the so-called ‘vigilantes’).
231
See Decision, para. 65 (recalling that “the Philippines does not address this issue in its Observations”).
232
Appeal, para. 125.
233
Appeal, paras. 126-127.
234
See above paras. 87-103.
235
Decision, para. 54.
236
Decision, para. 56.

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killings which fall outside the temporal scope of the investigation,237 and in any event appears
to be of an administrative rather than criminal nature.238

132. Within this context, the Chamber was neither incorrect nor unreasonable in concluding
that the Philippines has not taken sufficient tangible, concrete and progressive steps towards
the investigation of killings by private individuals outside law enforcement operations,
notwithstanding the Philippines’ view that its investigation of law enforcement personnel may
potentially identify leads for this purpose. In the circumstances, this remains primarily a matter
of speculation, which is insufficient.

C.2.f. The Chamber did not err in considering that the Philippines’ investigation does not
presently extend to alleged killings in Davao

133. Relatedly, the Chamber also found that, “for the alleged crimes committed in Davao area
from 2011 to 2016, the Philippines has not demonstrated the existence of national proceedings
that sufficiently mirror the investigation as authorised by the Article 15 Decision.”239

134. In particular, and notwithstanding “the explanation provided in the Observations” by the
Philippines, the Chamber considered that a “list of 176 murder incidents recorded by the Davao
City Police Office in the period 2011-2016” did not constitute evidence of “a sufficient degree
of specificity and probative values” for the purpose of article 18(2).240 In this regard, the
Chamber noted that “the list does not contain any information that allows the Chamber to
identify whether any of the 176 incidents listed correspond to the killings referred to in the
Article 15 Decision” and “does not provide information about the status of the 109 cases that
are not identified as resolved or under investigation”.241 To this end, it recalled that the
Philippines was “in a position to provide detailed information on their domestic proceedings”
and as such could be “expected to transmit documents, along with pertinent information
necessary to understand their relevance”.242

135. The Philippines again asserts incorrectly that the Chamber’s approach to this issue
showed that it erroneously applied a stricter standard than permitted under article 18(2).243 In
claiming that “the information relied upon by the Philippine Government showed that aspects

237
Decision, para. 57.
238
See Decision, para. 53.
239
Decision, para. 60. See also para. 54.
240
Decision, paras. 55-56. See also Appeal, paras. 129-130.
241
Decision, para. 55.
242
Decision, para. 56.
243
Contra Appeal, para. 131. See above paras. 87-103.

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of its investigation did overlap with the broad nature of the Prosecution’s investigations
concerning alleged killings in Davao”, “[r]egardless of the source of material at this stage”, the
Philippines essentially argues that the Court must accept the Philippines’ word and not require
evidence.244 This is inconsistent with the evidence-driven, objective approach which is
fundamental to any kind of analysis under article 17. Furthermore, the Philippines’ additional
reliance on several media articles was reasonably rejected by the Chamber, 245 and it shows no
error to point to the fact that the Prosecution had relied on media articles for a different purpose
as part of its original request to the Chamber under article 15(3).246

136. The Chamber was, therefore, neither incorrect nor unreasonable in finding that the
Philippines has not taken sufficient tangible, concrete and progressive steps towards
investigating alleged crimes in Davao.

C.2.g The Chamber did not err in considering that the Philippines’ investigation did not
represent the range and scope of crimes in the Court’s investigation

137. The Chamber recalled that the Court’s investigation is authorised “‘to extend to any crime
within the jurisdiction of the Court, limited by the temporal, territorial and factual parameters
of the situation as defined in the Article 15(3) Request’”, and that “[t]he limited number of
cases mentioned by the Philippines” addressing crimes other than murder “means that these
cases cannot represent the range and scope of crimes of the Court’s investigation.”247 Notably,
the Chamber observed that, “[e]ven if the Chamber ignores the deficient support provided by
the Philippines for its contentions, it appears that 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
brought.”248 The Chamber further noted that it had “consider[ed] the various domestic activities
in a holistic manner, taking together the entirety of domestic initiatives and proceedings
discussed above, to determine whether their ensemble would result in a finding that the State
is actively investigating the same conduct that forms part of the Court’s investigation”.249

138. On appeal, the Philippines argues that “there is no specific detail concerning the
commission of ‘other crimes’ in either the Article 15 Request or the Article 15 Decision”,250
and that consequently the Chamber’s conclusion was “erroneous” “when there is very little

244
Appeal, para. 131.
245
Contra Appeal, paras. 129-130. See Decision, para. 58.
246
Contra Appeal, para. 130.
247
Decision, para. 63. See also Appeal, para. 133.
248
Decision, para. 63.
249
Decision, para. 97.
250
Appeal, para. 134.

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detail as to what this range and scope [of crimes in the Court’s investigation] encompasses in
real terms.”251 In its view, “[i]n the absence of detail regarding the commission of ‘other
crimes’, it is almost impossible for the Philippine Government to be able to meet the Pre-Trial
Chamber’s erroneous demands that it substantially mirrors a hypothetical investigation
concerning such crimes.”252

139. The Philippines fails to show any error in this respect and again evinces a
misunderstanding of the analysis required by article 18. First, as made clear from the Decision,
the standard applied by the Chamber was that the Philippines’ investigation sufficiently rather
than “substantially” mirrored the Court’s investigation. Second, the Philippines fails to address
the fact that—as expressly recalled by the Chamber in the Decision—the Prosecution’s request
under article 15(3) “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
Statute; and SGBC under article 7(1)(g) of the Statute.”253 In the circumstances, this was
adequate notice of the range and scope of additional crimes which may form part of the Court’s
investigation. On this basis, the Philippines was in a position to provide information of criminal
proceedings with respect to Rome Statute crimes allegedly committed on their territory from 1
November 2011 until 16 March 2019.

140. The Philippines further asserts that the Chamber’s approach to the information actually
presented by the Philippines demonstrates its erroneous application of the standard under article
18(2).254 This is incorrect, for the reasons stated above.255 Indeed, while the Philippines asserts
that it had “enumerated instances where it has investigated its own law enforcement authorities
for crimes, other than murder, allegedly committed in connection to the ‘war on drugs’”—
including “the crimes of rape, acts of lasciviousness, sexual assault, arbitrary detention delay
in the delivery of detained persons to the proper judicial authority, unlawful arrest, false
testimony, and violation of Section 29 of R.A. 9165, amongst others”—it again fails to address
the relevant findings of the Chamber.256

141. The Chamber expressly recalled that the Philippines referred in its observations only to
“four specific cases”, as well as “a ‘partial listing’ of cases on the NPS’s docket, and a

251
Appeal, para. 135.
252
Appeal, para. 136 (also referring to a “substantial overlap”).
253
Decision, para. 61 (fn. 154, citing ICC-01/21-7-Red (“Article 15(3) Request”), para. 129).
254
Appeal, para. 136.
255
See above paras. 87-103.
256
Contra Appeal, para. 132.

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resolution dated 27 November 2020.”257 It also recalled that the Prosecution conceded that one
case “may be relevant”, although featuring charges only against physical perpetrators.258
Otherwise, however, the Chamber determined that ‘[o]ne of the cases relied on by the
Philippines, and the events covered by the NPS Consolidated Resolution of November 2020,
concern events that fall outside of the temporal scope of the authorised investigation.”259 Given
the nature and scale of the alleged events forming the context for the Court’s investigation, the
Chamber’s conclusion that the remaining domestic proceedings were insufficient for the
purpose of article 18(2)—even if they were accepted as adequately established—was entirely
reasonable.

142. Accordingly, in these circumstances, the Chamber was neither incorrect nor unreasonable
to conclude that the Philippines has not taken sufficient tangible, concrete and progressive steps
towards investigating crimes other than murder relevant to the scope of the Court’s
investigation.

143. For all these reasons, the Prosecution respectfully submits that the Philippines’ Third
Ground should be dismissed.

D. Fourth ground of appeal: the Chamber correctly applied the relevant factors in
article 17

144. In its Fourth Ground, the Philippines argues that the Chamber erred in failing to consider
all factors under article 17, namely, the State’s (un)willingness and (in)ability to genuinely
carry out the proceedings under article 17(2) and (3),260 and gravity of potential cases under
article 17(1)(d).261

145. However, since the Chamber had found the Philippines to be “inactive” for the purpose
of article 17(1)—because its domestic proceedings did not sufficiently mirror the scope of the
Court’s authorised investigation—it correctly did not assess the Philippines’ (un)willingness or
(in)ability under article 17(2) and (3). Moreover, an interpretation of article 18 in accordance
with its text, context and object, as well as considering the drafting history, shows that article
18 proceedings relate to complementarity matters. Accordingly, the Chamber correctly did not
assess “gravity”, which is not a matter of complementarity.

257
Decision, para. 61.
258
Decision, para. 62.
259
Decision, para. 63.
260
Appeal, paras. 143-153.
261
Appeal, paras. 154-160.

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146. For all these reasons, the Fourth Ground should be dismissed.

D.1. The Chamber correctly applied the two-step assessment of article 17

147. The Philippines erroneously suggests that the Chamber deemed the domestic proceedings
to lack genuineness without however having conducted a full assessment under article 17(2)
and (3).262 Yet the Philippines misinterprets the Decision and takes the Chamber’s incidental
use of the term “genuine” out of context.263 Based on the materials provided by the Philippines,
the Chamber concluded that the very few domestic initiatives which were substantiated did not
sufficiently, or at all, mirror, the Court’s intended investigation.264 Since it found that the
Philippines’ authorities were “inactive” under article 17(1), the Chamber needed not assess
their unwillingness or inability pursuant to article 17(2) and (3). The Chamber’s approach
accords with the Statute and consistent jurisprudence.265

D.1.a. The Chamber deemed the Philippines’ authorities to be inactive under article 17(1) and
did not assess their unwillingness or inability under article 17(2) and (3)

148. In the Decision, the Chamber set out the legal framework relevant to article 18(2)
determinations,266 and provided its interpretation of these provisions in accordance with well-
established jurisprudence on complementarity.267 In this context, the Chamber endorsed the
two-step approach of article 17 and referred to relevant case-law, mostly related to a State’s
inaction under article 17(1).268 The Chamber did not expand on the limited ICC case-law on
article 17(2) and (3).269

149. In light of the jurisprudence and based on the materials provided by the Philippines
(assessed holistically), the Chamber concluded that the very few substantiated domestic
proceedings (relating only to low-ranking law enforcement personnel and not including
patterns of criminality) did not sufficiently, or at all, mirror, the Court’s intended
investigation.270 The Chamber was thus not satisfied that the Philippines was undertaking

262
Appeal, paras. 143-145 (referring to Decision, para. 98); see also paras. 152-153.
263
See Decision, paras. 94, 98.
264
Decision, para. 96.
265
See below paras. 152-153 and fn. 276.
266
Decision, para. 10.
267
Decision, paras. 10-17.
268
Decision, paras. 10-17. Some of the case-law would also be relevant for article 17(2) and (3), such as regarding
the burden of proof, relevant substantiation information and timing of the assessment.
269
See e.g. Gaddafi First Admissibility Decision, paras. 138-218; ICC-01/11-01/11-466-Red (“Al Senussi
Admissibility Decision”), paras. 199-310. See also Al Senussi Admissibility Appeal Judgment, paras. 124-298.
270
Decision, paras. 96-98.

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relevant investigations that would warrant a deferral of the Court’s investigation under article
18(2) of the Statute. On this basis, it authorised the Prosecution to resume its investigation.271

150. In conducting this assessment, the Chamber noted a significant disparity in numbers
between the victimisation identified in the Article 15(4) Decision and the number of domestic
proceedings.272 It found that this difference showed that the domestic proceedings “cannot be
considered as being similar in scope or sufficiently mirroring the Prosecution’s intended
investigation”.273 It also noted that such a limited number of investigations and prosecutions
“is insufficient to show the existence of a genuine prosecutorial intention to respond to crimes
committed against such a large potential victim base”.274 Yet this remark does not mean that
the Chamber found the Philippines’ proceedings to lack genuineness under article 17(2) and
(3). It simply suggested that this disproportionality in scale and scope buttressed its assessment
on inaction.275 To the extent that this factual assessment may also be relevant to genuineness,
this is consistent with case-law stating that the same evidence may be relevant to both inaction
under article 17(1) and genuineness under article 17(2) and (3).276

D.1.b. The two-step approach has been consistently endorsed by the Court’s jurisprudence

151. Further, the Philippines erroneously suggests that the Chamber should have applied
article 17(2) and (3), and found the deferral request to be genuine due to their cooperation and
engagement.277 Yet the Chamber correctly did not apply article 17(2) and (3) because the
Philippines was found to be “inactive” pursuant to article 17(1).278 Nor does State cooperation
entails a finding of genuineness regarding the relevant domestic proceedings. A State may
genuinely cooperate in furnishing information to the Court, while yet being found unwilling or
unable genuinely to conduct proceedings within the meaning of article 17(2) and (3).

152. As developed above in response to the Second and Third Grounds, notwithstanding the
procedural context specific to article 18(2) the Chamber correctly considered that the same core

271
Decision, p. 42.
272
Decision, para. 94.
273
Decision, para. 94; see also paras. 63, 83.
274
Decision, para. 94; see also para. 98 (“real or genuine effort to carry out such investigations and any subsequent
criminal prosecutions, that would warrant a deferral of the Court’s investigations as per article 18(2)”).
275
Decision, para. 94; see also para. 98.
276
Al Senussi Admissibility Decision, para. 210; Al Senussi Admissibility Appeal Judgment, para. 231 (confirming
the Pre-Trial Chamber’s approach of considering investigative steps and the progression of domestic proceedings
to determine unwillingness). For example, lack of proceedings on the most responsible (and focus on low level
perpetrators) may indicate, along with other factors, an intent to shield under article 17(2)(a): Informal expert
paper, The principle of complementarity in practice, annex 4, p. 30.
277
Appeal, paras. 145-153.
278
Decision, paras 96-98.

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principles for assessing complementarity under article 17 at other procedural stages (such as
under articles 15 and 19) remain applicable.279 In this context the Chamber correctly endorsed
the two-step process,280 which has been consistently adopted by other Chambers in determining
admissibility of a “case” 281 but also of situations.282 This means that article 17 entails two
inquiries:

• First, whether the State with jurisdiction is conducting—or has conducted—relevant

domestic proceedings within the terms of article 17(1)(a) to (c). In effect, the Court must
determine whether there is an apparent conflict of jurisdiction between the ICC and the
State concerned. This is assessed in accordance with the three-part scheme set out in
article 17, namely whether: (i) there are ongoing investigations or prosecutions; (ii)
investigations have been completed and the State has decided not to prosecute the person
concerned;283 or (iii) the person has already been tried for the same conduct.284

• Second—and only if the first question is answered in the affirmative285—whether the

domestic proceedings are not, or were not, “genuine”. In particular, whether the
domestic authorities are unwilling or unable to conduct the relevant proceedings within
the meaning of articles 17(2) and (3) of the Statute.286

153. Because the Philippines’ proceedings did not sufficiently mirror the Court’s authorised
investigation within the terms of article 17(1), the Chamber halted its assessment. It was correct
not to proceed further to assess the criteria under article 17(2) and (3), since these were rendered

279
See Decision, paras. 11-17; Ruto et al. Admissibility Appeal Judgment, para. 38.
280
Decision, para. 11.
281
This was the case not only when considering the admissibility of cases proprio motu under article 19(1), but
also in resolving article 19(2) challenges by States or suspects and accused persons. See e.g. Katanga Admissibility
Appeal Judgment, paras. 75, 78; S. Gbagbo Admissibility Appeal Judgment, para. 27.
282
Chambers likewise followed this two-step process in assessing complementarity when deciding upon the
Prosecution’s requests to authorise investigations under article 15(3) of the Statute: Kenya Article 15 Decision,
paras. 53-54; Côte d’Ivoire Article 15 Decision, paras. 192-193; Burundi Article 15 Decision, paras. 145-146;
Georgia Article 15 Decision, paras. 36-50. Although the Appeals Chamber has since clarified that this assessment
is not required by article 15(4), and that such matters should be left to any proceedings under article 18, it did not
question the manner in which Chambers have conducted the assessments: see above fn. 148. The Pre-Trial
Chamber may still be potentially called upon to apply this two-step process in reviewing the Prosecution’s own
assessment of the admissibility of potential cases within referred situations under articles 53(1)(b) and 53(3)(a):
ICC-01/13-34 (“Comoros First Review Decision”), paras. 8-12.
283
Katanga Admissibility AD, para. 78; Simone Gbagbo Admissibility AD, para. 27.
284
With respect to articles 17(1)(c) and 20(3): see ICC-01/11-01/11-662 (“Gaddafi Second Admissibility
Decision”), para. 36, 79; ICC-01/11-01/11-695 OA8 (“Gaddafi Second Admissibility Appeal Judgment”), para.
58.
285
Katanga Admissibility Appeal Judgment, paras. 75, 78; S. Gbagbo Admissibility Appeal Judgment, para. 27.
See also W. Schabas and M. El Zeidy, ‘Article 17: issues of admissibility’, in K. Ambos (ed.), The Rome Statute
of the International Criminal Court: Article-by-Article Commentary, 4th Ed. (C.H. Beck/Hart/Nomos: 2022), p.
963 (mn. 30).
286
Statute, art. 17(2), (3). See also art. 20(3) (if there has been a final decision).

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moot in light of its conclusion on the first question. This is in line with the recognised principles
of judicial efficiency. The Chamber’s approach accords with the Statute and the Court’s
jurisprudence. The Prosecution notes that the same issue now raised by the Philippines was
resolved in the Katanga case,287 whereby the Appeals Chamber held that an argument akin to
that of the Philippines was “not only irreconcilable with the wording of the provision, but […]
also in conflict with a purposive interpretation of the Statute”.288 This finding has been
consistently endorsed. The Philippines provides no reason—let alone any convincing reason—
to depart from this authority.289

154. First, this interpretation is consistent with the VCLT criteria of treaty interpretation. It
best suits the stated purpose of article 18 (expressly referring, in its title, to “admissibility”),
the context provided by the general terms in which article 17 is expressed (applying to “[i]ssues
of admissibility” without further specification), and the object and purpose of the Statute,
namely, to end impunity while respecting States’ primary responsibility to investigate and
prosecute crimes under the Statute.290

155. Second, neither the drafting history of article 18 nor any other provision of the Statute
suggests that article 17 should be interpreted differently for the purpose of deferral requests.
To the contrary, the drafting history shows that the belated proposal to create article 18 was not
intended to reopen the compromise reached on complementarity.291 Rather, article 18 was
intended to be consistent both with the framework of complementarity in article 17 and (what

287
Katanga Admissibility Appeal Judgment, paras. 78-79.
288
Katanga Admissibility Appeal Judgment, para. 79 (noting that this interpretation “would result in a situation
where, despite the inaction of a State, a case would be inadmissible before the Court, unless the State is unwilling
or unable to open investigations. The Court would be unable to exercise its jurisdiction over a case as long as the
State is theoretically willing and able to investigate and to prosecute the case, even though that State has no
intention of doing so”).
289
Although the Appeals Chamber is not bound by its prior decisions, pursuant to article 21(2), it has indicated
that it does not change its jurisprudence lightly and would not depart from it “absent convincing reasons”. See
Gbagbo Victims Participation Decision, para. 14. This approach has been adopted in all international tribunals due
to, among other reasons, the need for predictability and legal certainty. See ICTY, Prosecutor v. Aleksovski, IT-
95-14/1-A, Judgment, 24 March 2000, paras. 107-109; IRMCT, Prosecutor v. Karadžić, MICT-13-55-A,
Judgment, 20 March 2019, para. 13; Prosecutor v. Šešelj, MICT-16-99-A, Judgment, 11 April 2018, para. 11;
ICTR, Rutaganda v. the Prosecutor, ICTR-96-3-A, Judgment, 26 May 2003, para. 26; STL, Case against Akhbar
Beirut S.A.L. and Ali Al Amin, STL-14-06/PT/AP/AR126.1, Decision on Interlocutory Appeal concerning Personal
Jurisdiction in Contempt Proceedings, 23 January 2015, para. 71.
290
Katanga Admissibility Appeal Judgment, para. 79 (referring to the aim of the Rome Statute to put an end to
impunity and to ensure that the most serious crimes of concern to the international community as a whole must
not go unpunished); see also ICC-01/14-01/18-678-Red OA (“Yekatom Admissibility Appeal Judgment”), para.
42 (referring to the States’ primary duty to exercise criminal jurisdiction); Gaddafi Second Admissibility Appeal
Judgment, para. 58; Ruto et al. Admissibility Appeal Judgment, para. 44 (finding that article 17(1)(a)-(c) “favour
national jurisdictions, […] to the extent that there actually are, or have been, investigations and/or prosecutions at
the national level”).
291
Holmes (1999), p. 69.

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is now contained in) article 19(1) and (4) of the Statute—whereby a State or person concerned
may challenge the admissibility of a concrete case within the framework of article 17.292

156. Further, that factors which are relevant to determine inaction under article 17(1) may also
be relevant for determining unwillingness or inability under article 17(2) and (3) does not mean
that the Chamber needs to always assess the latter when it has found the former.293 It simply
means that the same type of information may be helpful to both assessments, should the
Chamber decide to conduct them. However, as noted, unwillingness and inability of domestic
authorities should only be assessed if there are domestic proceedings sufficiently mirroring the
ICC case or proceedings. In Al Senussi, the Pre-Trial Chamber assessed the unwillingness and
inability of the Libyan authorities because it had found that they were taking concrete and
progressive steps directed at ascertaining the criminal responsibility of Mr Al Senussi for
substantially the same conduct as before the ICC.294

157. Moreover, while article 18(3) provides that the Prosecution can review its deferral to a
State’s investigation on the basis of a “significant change of circumstances based on the State’s
unwillingness or inability genuinely to carry out the investigations”, this does not require the
Chamber always to assess unwillingness and inability in any ruling under article 18(2) in the
first place.295

D.2. The article 18 procedure does not entail a gravity assessment

158. The Philippines further argues that the Chamber erred by not considering the gravity of
the situation pursuant to article 17(1)(d).296 It suggests that rule 55(2) requires the Chamber to
“consider the factors in article 17”, including gravity.297 Yet, to the contrary, an interpretation
of the statutory provisions in accordance to the VCLT suggests that a determination under
article 18 is limited to complementarity matters, and does not extend to gravity.

159. Indeed, article 18 provides a narrowly tailored mechanism for States to bring a
preliminary admissibility challenge on complementarity grounds. Article 18(2) permits States
to request the deferral of the Court’s investigation on the ground that the State “is investigating
or has investigated its nationals and others within its jurisdiction with respect to criminal acts
which may constitute crimes referred to in article 5” and which relate to the authorised

292
Nsereko and Ventura, p. 1012, nm. 4.
293
Contra Appeal, para. 153 (quoting Al Senussi Admissibility Decision, para. 210).
294
Al Senussi Admissibility Decision, paras. 167-168.
295
Contra Appeal, paras. 148-150.
296
Appeal, paras. 154-161.
297
Appeal, para. 155.

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investigation.298 This is therefore limited to complementarity matters under article 17(1)(a)–

(c), not to the issue of gravity under article 17(1)(d). It should also be noted that even article
19(2)(b), which provides for challenges to the admissibility of a “case” (by implication, not a
situation),299 limits the basis for a State to challenge admissibility to “the ground that it is
investigating or prosecuting the case or has investigated or prosecuted” a case.300

160. This approach is consistent with the drafting history of article 18 which sought to ensure
that the Prosecutor “defer investigations where the same matter was being investigated by a
State, unless the case would be admissible under the complementarity provisions of the
Statute”.301 The fact that rule 55(2) cross-refers to article 17 as a whole should be read in this
context—and suggests that article 18 is “an integral part of the complementarity regime”, thus
also encompassing “the unwillingness and inability factors which are included in the article
17”.302 Moreover, the Rules of Procedure and Evidence “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 to the provisions of the Statute”.303

161. However, this does not mean that gravity has not been considered before the opening of
an investigation. To the contrary, the Prosecution is always required to assess gravity prior to
the opening of an investigation (for State or UNSC referrals) and prior to making a request
under article 15(3) (for proprio motu situations).304 Moreover, Chambers may assess the
admissibility of a case (and thus including gravity) in different contexts, such as in deciding on
an application under article 58.305 In addition, a suspect or accused can challenge admissibility
under all grounds (including gravity) pursuant to article 19(2)(a).

162. Finally, in the Article 15(4) Decision, the Chamber did not review the Prosecution’s
gravity assessment, in contradiction to the Afghanistan Appeal Judgment.306 Instead, the
Chamber appropriately limited its assessment to the jurisdictional conditions under article

298
Statute, art. 18(2).
299
Cf. ICC-02/04-01/15-156 (“Ongwen Admissibility Decision”), para. 14.
300
Compare Statute, art. 19(2)(a) (without this limitation when the accused challenges admissibility).
301
Holmes (1999), p. 69 (emphasis added).
302
Holmes (2001), p. 343 (emphasis added).
303
ICC RPE, Explanatory note.
304
Statute, art. 53(1)(b); ICC RPE, rule 48.
305
Statute, art. 19(1). See also ICC-01/04-169 (“DRC Arrest Warrants Appeal Judgment”), paras. 1, 52 (finding
that a Chamber is not required to determine admissibility before the issuance of a warrant of arrest pursuant to art.
58(1) but may nevertheless exercise its discretion and address admissibility at this stage proprio motu, “when it is
appropriate in the circumstances of the case, bearing in mind the interests of the suspect,” including, “instances
where a case is based on the established jurisprudence of the Court, uncontested facts that render a case clearly
inadmissible or an ostensible cause impelling the exercise of proprio motu review.”).
306
Contra Appeal, para. 161.

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15(4).307 In this respect, the Philippines takes paragraph 25 of the Decision out of context. In
its Observations, the Philippines had argued that the situation lacked gravity because there was
not a widespread or systematic attack against a civilian population or that the crimes were not
committed pursuant to a State policy.308 In the Decision, the Chamber rejected these arguments
by referring to the Article 15(4) Decision, whereby it had found that there was such an attack
committed pursuant to or in furtherance of a State policy.309 The Chamber made such finding
in the context of its jurisdictional analysis under article 15(4), and not in the context of article
17(1)(d).

163. In any event, the potential cases within the situation are sufficiently grave and go way
beyond “those rather unusual cases when conduct that technically fulfils all the elements of a
crime under the Court’s jurisdiction is nevertheless of marginal gravity only”.310 In the present
situation, the available information demonstrates that at least more than 5,000 and possibly as
many as 30,000 civilians (including children) have been killed by police or by “unidentified”
perpetrators apparently acting in coordination with police.311 In many instances, the police
allegedly staged self-defence scenarios, planted evidence, or otherwise obstructed justice in an
effort to justify the premeditated and deliberate murder of civilians. 312 Beyond the alleged
killings, the Chamber has also authorised the investigation of any article 5 crime within the
geographical and temporal parameters of the situation,313 and the available information
indicates that torture, other inhumane acts, and other crimes were also committed in connection
with the “war on drugs” campaign.314

164. Nothing about these crimes, committed in large part by law enforcement personnel
entrusted with protecting citizens from violence, suggests that the potential cases before the
Court are of marginal gravity. To the contrary, they are extremely serious, and appear to have
been at the very least encouraged and condoned by high-level government officials, up to and
including the former President.

307
Article 15(4) Decision, paras. 9-16.
308
Observations of the Government of the Philippines on the Prosecution Article 18(2) Request, paras. 42, 45.
309
Decision, para. 25; see Article 15(4) Decision, paras. 93-102.
310
ICC-01/12-01/18-601-Red OA (“Al Hassan Gravity Appeal Judgment”), para. 53. In other words, crimes within
the jurisdiction of the Court are presumptively of sufficient gravity to warrant further action, and should be
excluded on the basis of gravity only when an assessment of quantitative and qualitative criteria shows that the
case is of marginal gravity: see paras. 55, 89-94.
311
Article 15(4) Decision, para. 67.
312
See e.g. Article 15(4) Decision, para. 40-53, 57-58.
313
Article 15(4) Decision, p. 41.
314
Article 15(4) Decision, para. 71; Article 15(3) Request, para. 129.

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165. For all these reasons, the Prosecution submits that the Philippines’ Fourth Ground should
be dismissed.

Conclusion

166. For all the reasons set out above, the Prosecution respectfully requests the Appeals
Chamber to reject the Appeal and confirm the Pre-Trial Chamber’s authorisation of the
resumption of the Prosecution’s investigation in the Situation in the Philippines pursuant to
article 18(2) of the Statute.

_________________________________
Karim A.A. Khan KC, Prosecutor

Dated this 4th day of April, 2023

At The Hague, The Netherlands

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