By the National Union of Peoples’ Lawyers — Panay Chapter
7 May 2025 (PANINDUGAN)

ILOILO City — On 1 May 2025, defense lawyers for Rodrigo Duterte, who is currently detained in The Netherlands for crimes against humanity, filed a submission with Pre-Trial Chamber I of the International Criminal Court (ICC) challenging the ICC’s exercise of jurisdiction over the case and asking the Court to nullify the proceedings and to release the former president.

This is a jurisdictional challenge brought under Article 19 of the Rome Statute, as opposed to an Article 18(2) admissibility challenge on the ground of complementarity under Article 17.

The admissibility challenge was previously raised by the Philippine government when it made a deferral request in an effort to stop the investigation of the ICC Prosecutor, but it was rejected by the Pre-Trial Chamber and, later, by the Appeals Chamber in 2023.

Resolving that admissibility challenge required the Court to determine whether the Philippines was itself undertaking a genuine investigation into acts constituting crimes against humanity in relation to the “war on drugs” campaign. It is on this score that the debate on the propriety of the ICC investigation was first muddied by disinformation or, at least, a misapprehension of the ICC proceedings and its governing rules.

In questioning the ICC investigation, the allies of the former president, as well as lawyers and officials under the Marcos Jr. administration — back when the alliance between the two camps had not yet collapsed — kept insisting that the Philippines had a working justice system that should have precluded interference from the ICC. Whether they completely missed the point or were deliberately misleading the public, these arguments were of secondary importance. The main issue was not whether the Philippines had a functioning justice system but whether this system was actually being used to investigate crimes against humanity committed during the drug war.

In ruling on the admissibility challenge on the ground of complementarity, the Pre-Trial Chamber and, later, the Appeals Chamber had to first decide whether there were domestic investigations or prosecutions into the same crimes and if these sufficiently mirrored the investigation of the ICC Prosecutor. Only if the Chamber had determined that there were such domestic investigations or prosecutions would it, then, assess whether these were part of a genuine effort to hold the perpetrators accountable or merely an attempt to shield them.

The Court concluded that the Philippine government was not actually carrying out investigations that mirrored the ICC prosecutor’s own investigation, pointing out that the very few cases cited by the Philippine government were mostly administrative proceedings, concerned low-level police officers, and did not delve at all into the systematic nature of the drug-war killings or whether these were perpetrated pursuant to state policy. In other words, it was the sheer inactivity of the Philippines in terms of investigating drug war killings that ensured the ICC investigation would continue. The existence of a domestic justice system is useless if it does not function to bring justice for the victims through genuine investigations and prosecutions.

This brings us to the more fundamental issue raised by Duterte in his Article 19 challenge — jurisdiction, or more accurately, the exercise of jurisdiction.

Having been arrested earlier this year and set to undergo a confirmation of charges hearing in September, Duterte is permitted, under the Rome Statute and the ICC’s rules of procedure, to challenge these proceedings on jurisdictional grounds. Under Article 19 of the Statute, a person subject of an ICC arrest warrant or summons may raise this challenge albeit only once, either prior to or at the commencement of trial. When raised before the confirmation of charges, as in the case of Duterte, the challenge will be resolved by the Pre-Trial Chamber. It is this jurisdictional challenge that is currently the subject of Duterte’s recent submission and the issue confronting the Pre-Trial Chamber.

Duterte’s arguments and the counter-arguments that can be made against them are nuanced and deserve an expanded and more in-depth discussion, but the essence can be briefly reviewed in this article.

Duterte argues that the ICC cannot exercise jurisdiction because the Philippines withdrew from the Rome Statute, and this withdrawal took effect on 17 March 2019, while the preliminary examination was still being conducted by the ICC Prosecutor. The request for authorization to open the formal investigation was made by the ICC Prosecutor only two years later, in May 2021, and the Pre-Trial Chamber approved the request only in September of that year.

The defense team postulates that while the ICC may have jurisdiction over the crime, it could not exercise that jurisdiction because of how Articles 12(2) and 13 of the Rome Statute are worded. Duterte’s lawyers argue that a “holistic reading” of these provisions — which relate to the exercise of jurisdiction and its preconditions — require that the state where the crime was committed (territorial state) or whose national is accused of the crime (state of nationality) “must be a party to the Rome Statute contemporaneously with the Court’s decision to exercise jurisdiction.” In short, even if crimes against humanity were committed at the time that the Philippines was still a party to the Statute, in order to prosecute the perpetrators, the ICC should have exercised its jurisdiction before the country effectively withdrew from the treaty.

This is not the first time this jurisdictional challenge is being raised. The Philippine government made similar arguments in its failed bid to stop the ICC investigation in 2023, and the ICC Prosecutor aptly countered those arguments, as discussed further below. But because the matter to be resolved back then was the admissibility challenge, the decisions of the Pre-Trial Chamber and Appeals Chamber focused on whether domestic proceedings were being conducted in a manner that justified suspending the ICC investigation, and both Chambers answered in the negative. In any case, the Pre-Trial Chamber and the Appeals Chamber were satisfied that the ICC retained jurisdiction to proceed with the investigation despite the Philippines’ withdrawal from the Statute, but neither one exhaustively addressed the arguments put forth by the Philippine government and the Prosecutor on the jurisdictional issue.

Notably, two judges dissented from the Appeals Chamber decision and preferred to address the jurisdictional question head-on. They were of the opinion that the Court did lack jurisdiction on account of the Philippines’ withdrawal. Their dissenting view would later be cited repeatedly by Duterte in his Article 19 challenge. Nevertheless, the Appeals Chamber’s 2023 ruling on the Article 18(2) admissibility challenge stands, and events unfolded as they did.

Duterte’s present Article 19 challenge offers an opportunity for the Pre-Trial Chamber to squarely rule on the jurisdictional issue and, more importantly, elaborate on the rationale for either upholding the ICC’s jurisdiction or sustaining Duterte’s claim that the Court had lost its chance to prosecute him or any other person for crimes against humanity the moment the Philippines withdrew from the Rome Statute.

The ICC Prosecutor will address the arguments raised by Duterte’s legal team, and everyone would have to await the Pre-Trial Chamber’s decision for a categorical resolution of the issue, one that could greatly affect the ICC’s institutional reputation and its relationship with other states that are parties to the Rome Statute. But on the face of it, Duterte’s jurisdictional challenge betrays a heavy reliance on the 2019 withdrawal, similar to that displayed by the Marcos Jr. administration, as a means of ensuring impunity for international crimes. This challenge ought to be rejected for its glaring flaws.

In the first place, contrary to Duterte’s arguments that his challenge is based on a “holistic reading” of Articles 12(2) and 13 of the Rome Statute, the said provisions — or any other provision of the Statute, for that matter — do not require that the formal investigation must be authorized while the territorial state or the state of nationality is still a state party.

Article 12(2), in laying down the preconditions to the ICC’s exercise of jurisdiction, requires only that the international crime is committed in the territory of a state party to the Rome Statute or by its nationals. It is but logical that the relevant period in making a jurisdictional assessment is the time when the crimes were committed, not when the investigation was authorized or conducted, which could be much later. This is consistent with Article 11, the provision that governs the ICC’s temporal jurisdiction — the period during which the crimes were allegedly committed in order for the ICC to exercise its jurisdiction.

Article 11 lays down only two rules: first, the ICC has jurisdiction only with respect to crimes committed after the Rome Statute entered into force; and, second, if a state becomes a party after its entry into force, the ICC may exercise its jurisdiction only with respect to crimes committed after the entry into force of the Statute for that state. The ICC investigation into the drug war covers only crimes committed from 1 November 2011 until 16 March 2019 — the period when the Philippines was still a state party and the Statute was still in force for the country. The ICC, therefore, is not operating beyond its mandate.

Contrary to Duterte’s claim, neither Article 12 nor any other provision of the Rome Statute suggests that the jurisdiction assessment must be tied to the period when the ICC formally opens the investigation. While temporal jurisdiction may extend to the investigation stage, this is not a requirement under any provision of the Rome Statute or the ICC’s rules of procedure. In raising the jurisdictional challenge, therefore, Duterte’s defense team is trying to introduce a requisite that is not reflected in the Court’s governing law or its rules.

In his Article 19 challenge, Duterte also argued that the use of the “present simple tense” in Article 12 confirms that the state concerned should be a party to the Rome Statute “contemporaneously” with the exercise of jurisdiction. This view, however, is pure textualism and conflicts with Article 11 and other provisions of the Statute. The argument overlooks the fact that the text uses the present tense only because it refers to the commission of the crime in relation to the territory and nationality requirements, nothing more. In other words, Duterte’s textualist approach ignores the purpose of the whole section, i.e. to impose territoriality and nationality as preconditions to the exercise of ICC jurisdiction. It was never intended to fix the scope of the Court’s temporal jurisdiction which, as mentioned earlier, is governed by Article 11 of the Statute. What is undisputed, and evident, is that the ICC investigation is safely confined only to the period when the Philippines was still a state party.

Duterte’s jurisdictional challenge is likewise inconsistent with Article 29 of the Statute which states that crimes against humanity, along with the other Rome Statute crimes, are not subject to any statute of limitations — meaning, these crimes do not prescribe and the persons responsible can be prosecuted and punished long after they occurred.

Earlier international courts were created only after the crimes took place. The reality is that the international community takes action much later than the crimes to which they respond. In fact, in cases before international and domestic courts, individuals suspected of responsibility or complicity in international crimes were prosecuted and tried years or even decades after the crimes took place. It would be a paradoxical proposition indeed to have the non-prescriptibility of international crimes written into the Rome Statute only to significantly limit the ICC’s ability to exercise its jurisdiction.

Upholding the ICC’s jurisdiction over the Duterte case also adheres to Article 21 of the Rome Statute, which states that application and interpretation of the Statute and the ICC’s rules “must be consistent with internationally recognized human rights.” Among the established international law principles are the obligations of states to provide effective remedies for victims and to prevent, investigate, submit to prosecution, and punish those responsible for international crimes, such as crimes against humanity. This legal obligation includes facilitating the surrender of the perpetrators to courts that are willing to undertake these processes for accountability. The ICC is such a forum.

Much has also been written on Article 127(2), which deals with the withdrawal of a state party from the Rome Statute, and it is worth devoting a few lines to this provision. It states, among other things, that the withdrawal shall not 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.”

Significantly, Duterte is not anchoring his Article 19 challenge on this article, probably on the advice of his lawyers who seem to prefer focusing on the import of Article 12(2). According to Duterte’s submission, Article 127 is irrelevant. But even if it were to be applied, its strict application means that the ICC could not proceed with investigating the drug war killings because the preliminary examination launched by the ICC Prosecutor was not a “matter” that was “under consideration by the Court” at the time the withdrawal took effect in March 2019. Duterte argues that the preliminary examination process does not survive withdrawal, and is merely an “internal, informal” stage that the Office of the Prosecutor “has decided to self-regulate and formalize” in a mere policy paper.

These arguments put forward by Duterte are misleading. A preliminary examination is a stage in an eventual case that is referred to and governed by the Rome Statute. Article 15, in sub-paragraphs 1, 2, 3, and 6, pertain to the ICC Prosecutor’s responsibility and role in this stage of the process, and the steps that must be taken once it has concluded the preliminary examination. Other provisions of the Statute and the ICC’s rules of procedure deal with the standards governing this stage and how the Chambers can review the ICC Prosecutor’s conclusions. It is, therefore, incorrect to dismiss the prelimimary examination as an “internal, informal” stage devoid of legal significance.

More importantly, as the ICC Prosecutor pointed out in an earlier submission, a fact which Duterte’s challenge glosses over is that Article 127(2) — particularly, the much-debated clause on how the withdrawal should not, in any way, prejudice an ongoing investigation or matter being considered by the Court — only enshrines the principle of non-retroactivity. It ensures that a state’s withdrawal will not adversely affect rights and obligations that have already set in. Article 127(2) does not define the ICC’s temporal jurisdiction as this is governed by Article 11. Neither does Article 127(2) impose an additional requirement for the exercise of jurisdiction.

The position taken by the ICC Prosecutor is consistent with both treaty and customary international law dealing with the interpretation of treaties and their termination clauses, all of which aim to preserve the legal situation prior to the withdrawal. And in Duterte’s case, the legal situation is that the ICC has jurisdiction to investigate crimes against humanity in the context of the “war on drugs” and to investigate and prosecute the perpetrators.

Subscribing to Duterte’s flawed interpretation of the Rome Statute only reinforces impunity already prevalent in state-perpetrated crimes. Doing so would mean that perpetrators of the worst atrocities, who usually exercise political power and occupy a country’s highest positions, could easily undermine the ICC’s function and defeat its purpose by simply withdrawing from the Rome Statute once word comes out that the ICC Prosecutor has opened a preliminary examination into crimes taking place in that country. When the Court finally decides on Duterte’s Article 19 challenge, such an interpretation cannot be allowed to hold sway.

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