ICC’S JUNKING OF JURISDICTION CHALLENGE OVER DUTERTE FLAWED AND VIOLATIVE OF PH SOVEREIGNTY

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In throwing out the challenge to its jurisdiction over the former president Rodrigo Duterte, the International Criminal Court (ICC) rejected the claim of the defense that the ICC has no authority to prosecute and hold Duterte in custody at The Hague.

In questioning the ICC’s jurisdiction, the defense team correctly argued that the ICC only commenced its preliminary investigation two years after the Philippines’ effective withdrawal from the ICC, which is beyond the prescriptive period by which the ICC could retain jurisdiction over member-states that have withdrawn their membership from the international court.
The ICC dismissed the defense argument by citing Article 27(2) of the Rome Statute, to wit:

“A state shall not be discharged, by reason of its withdrawal, from the obligations arising from this Statute while it was a Party to the Statute, including any financial obligations it may have accrued. Its withdrawal may not affect any cooperation with the Court in connection with any investigations or proceedings in relation to which the withdrawing State has a duty to cooperate and were commenced prior to the date in which the withdrawal became effective nor shall it prejudice in any way the continued consideration of any matter which was already under consideration by the Court prior to the date on which the withdrawal became effective.”

In other words, the ICC is saying that the preliminary examination it conducted on the Philippine situation prior to its withdrawal falls under a “matter under consideration by the Court,” hence within the purview of Article 127(2) of the Rome Statute. This ruling is flawed.

The defense team correctly argued that the preliminary examination commenced by the ICC when the Philippines was still a member does not fall under the “matter already under consideration by the Court prior to the date on which the withdrawal became effective” — because the “matter under consideration by the Court” referred to by Article 127(2) of the Rome Statute is the preliminary investigation on the charges against Duterte conducted by the special prosecutor. This preliminary investigation was made only two years after the effective date of withdrawal of the country from the ICC.

In conducting the preliminary examination, the ICC was only determining whether or not it could assume jurisdiction over the Philippines based on the principle of complementarity, which establishes the jurisdiction over a member-state, i.e., when it has no capacity to prosecute or fails or refuses to prosecute offenders committing crimes against humanity and other crimes under the jurisdiction of the ICC.
Article 27(2) assumes that the ICC has already determined it has jurisdiction; hence, it could commence its preliminary investigation over the charges filed against Duterte.
The preliminary examination conducted by the ICC cannot be a part of the preliminary investigation because it was not yet investigating the charges but merely determining whether it could acquire jurisdiction over the Philippines and Duterte.

The ICC ruling negates the consequence of an effective withdrawal of a state, which is to be out of the jurisdiction of the ICC in the prosecution of crimes against humanity. It arrogates to itself the power to divest a country of its sovereignty by just becoming a member of the ICC.

Sovereignty is the supreme power of a state to make its own laws and govern itself without external control. It cannot be removed or displaced except by armed invasion or occupation.

Countries joining the ICC agreed to be under the Rome Statute and the ICC jurisdiction in the prosecution of crimes against humanity only under conditional circumstances, meaning when they do not have the capacity to prosecute or they fail or refuse to prosecute those committing crimes under the jurisdiction of the ICC.

These countries enter into such a contract with the ICC in order that countries which do not have the resources to prosecute tyrants running them who commit atrocities, mass murder of their citizens, and abuse their authority to perpetuate themselves in power will have a venue to make them accountable and be punished.

Outside of those exceptional circumstances, the ICC cannot acquire jurisdiction over members or nonmembers thereof. Should it assume jurisdiction over any country in violation of the principle of complementarity, it assaults and violates the sovereignty of such a country, apart from violating its own Rome Statute that created it.
(To be concluded on Nov. 10, 2025)