By Erika Mae P. Sinaking, Reporter
THE TIMING of the Philippines’ withdrawal from the International Criminal Court (ICC) may not be sufficient to shield former President Rodrigo R. Duterte from prosecution, experts said, as the court moves toward a jurisdiction ruling that could cement The Hague-based tribunal’s authority over the deadly war on drugs.
The ICC Appeals Chamber is set to decide on April 22 whether the tribunal retains the authority to investigate Mr. Duterte’s alleged crimes against humanity committed during the war on drugs, despite the country’s formal exit from the Rome Statute in 2019. This upcoming judgment follows a series of legal challenges filed by Mr. Duterte’s defense team after his arrest by Philippine authorities and transfer to the court on March 12, 2025.
“The stronger argument in the Duterte defense is whether the ICC can exercise jurisdiction (vis-à-vis whether it has),” Maria Kristina C. Conti, ICC assistant to counsel representing victims, told BusinessWorld in a Viber message.
“Clearly, the Philippines was a member state at the time the crimes were committed. But did the ICC exercise its jurisdiction when it was still a member? Defense argues that the formal investigation phase came only after the Philippines withdrew,” she added.
The defense team has maintained a sharp distinction between “jurisdiction stricto sensu” — the court’s inherent power over certain crimes — and the actual “exercise of jurisdiction.” They argued that while the court might have had the former, the preconditions for the latter were not met because the formal investigation was only authorized in 2021, two years after the 2019 withdrawal.
However, the ICC’s Pre-Trial Chamber I rejected this view in its Oct. 23, 2025 decision. The chamber cited Article 127(2) of the Rome Statute, which stipulates that a 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.”
Ephraim B. Cortez, president of the National Union of People’s Lawyers, expressed confidence that the Appeals Chamber would uphold this interpretation.
“The ICC will definitely rule in favor of the Prosecution,” Mr. Cortez said in a separate Viber chat. “There is no basis in the argument that the ICC can no longer take cognizance of the case since the authority to investigate was issued only in 2021.”
“We have to consider that the Prosecutor initiated the preliminary examination into the Philippine situation in February 2018, more than a year before the Philippines’ withdrawal from the ICC became effective,” he said.
Mr. Cortez added that the withdrawal itself was a response to the court’s initial actions.
“The withdrawal was a reaction to the initiation of the preliminary examination,” Mr. Cortez said. “But the withdrawal came in too late, since the proceedings had been initiated through the preliminary examination, and the jurisdiction of the ICC had already attached.”
COMPLEMENTARITY PRINCIPLE
While jurisdiction remains the primary legal hurdle, the principle of complementarity, the idea that the ICC only steps in when national systems are unable or unwilling to prosecute, remains a point of contention among legal observers and the defense.
Salvador S. Panelo, former Presidential Chief Legal Counsel, criticized the court’s stance as an infringement on Philippine independence.
“I’m not optimistic given that there are external considerations that may lead the ICC into confirming the charges and setting the case for trial,” Mr. Panelo said via a Viber message.
“The ICC assumed jurisdiction over the Philippines and over the person of [Mr. Duterte] despite the fact that it has absolutely no jurisdiction over them because it has not followed the principle of complementarity,” he said, adding it violated the country’s jurisdiction and assaulted Philippine sovereignty and territorial integrity.
Mr. Panelo said that the local judiciary is fully capable of handling any necessary legal proceedings.
Lawyers representing the victims argued that domestic efforts have been insufficient because they failed to target the “masterminds” of the drug war.
“The question is, is there any domestic prosecution against Duterte? There is none,” said Joel R. Butuyan, an ICC-accredited lawyer serving as the Common legal representative for victims.
“Kian and other cases are prosecution against ordinary police. ICC only prosecutes the most guilty, the masterminds,” Mr. Butuyan said, referring to the murder conviction of three police officers in the 2017 killing of 17-year-old Kian delos Santos, which was upheld by the Supreme Court.
“ICC does not prosecute those who pulled the triggers, but those who ordered the triggers to be pulled,” he added, noting he is confident the court will uphold jurisdiction over the case.
Mr. Cortez shared this view, suggesting that the local system has spared those at the top of the command chain.
“These are indications that the Philippine justice system is not working, and the ICC will affirm its jurisdiction over the case,” Mr. Cortez added.
The Pre-Trial Chamber’s earlier ruling underscored that establishing jurisdiction is “fundamental to the proceedings.” The judges noted that if they lacked jurisdiction, they would have no competence to rule on any other issues, including Mr. Duterte’s fitness to stand trial.
The defense had previously requested a postponement of the jurisdiction ruling until Mr. Duterte’s fitness was resolved, but the chamber denied this, stating that a prompt ruling on jurisdiction “can only promote the efficiency and expeditiousness of the proceedings.”
“This is an issue of first impression, so there is very little jurisprudence to rely on,” Ms. Conti said. “Theoretically, if the Appeals Chamber affirms jurisdiction, the case and investigation proceeds — i.e., Duterte’s case keeps to its schedule, we wait for the confirmation decision and so on; we also wait for investigation and possible warrants etc.”
“If the Appeals Chamber declines jurisdiction, then any action of the ICC with regard to the Philippines will terminate. But there should be a clear order in the decision (or it could be made by the PTC in a separate order) to release Duterte, for orderly proceedings,” she added.
