The end of Philippines' jurisdiction debate at the ICC
The end of Philippines' jurisdiction debate at the ICC
Alberto Fierro Aldudo holds an LL.M. from Maastricht University, where he specialised international law and human rights. LinkedIn · X
Introduction
Yesterday, the Appeals Chamber (AC) of the International Criminal Court confirmed the Pre-Trial Chamber decision that affirmed the Court's jurisdiction over the situation in the Philippines in relation to the Duterte case. By doing so, the AC put an end to a decade-long debate and stated that it is incompatible with the object and purpose of the Rome Statute (RS) for a state to evade its responsibilities by depositing a written notice of withdrawal once it discovers that alleged crimes committed on its territory or by its nationals are being examined.
The history of the Philippines' jurisdiction debate at the ICC that ended yesterday will impact other potential issues of jurisdiction regarding state withdrawals. This article is going to address the long history of the debate around the jurisdiction of the ICC in the Philippines and its potential future implications.
The starting point: the Philippines withdrawal from the Rome Statute
The Philippines ratified the RS on 30 August 2011. On 8 February 2018, following a review of several communications and reports documenting alleged crimes, the Prosecutor of the ICC Fatou Bensouda announced the opening a preliminary examination into the situation in the Philippines to analyse crimes allegedly committed in the context of the "war on drugs" campaign launched by the Government of the Philippines.
The reaction of the Government of the Philippines came on 17 March 2018, when it notified the Secretary-General of the United Nations their intention to withdraw from the RS in agreement with art. 127 (1) RS, withdraw that took effect on 17 March 2019.
In September 2021, following the Prosecutor’s request, the Pre-Trial Chamber I (PTC) authorised the commencement of an investigation in relation to crimes within the jurisdiction of the Court allegedly committed on the territory of the Philippines between 1 November 2011 and 16 March 2019. After a deferral of the investigation was granted to the Philippines in 2021, the PTC granted the Prosecutor the authorisation to resume the investigation on 26 January 2023.
The withdrawal system from the Rome Statute
In agreement with the sovereign nature of the state acceptance to the jurisdiction of the Court, art. 127 (1) RS provides the procedural steps for a state withdrawal as part of the fundamental right of states to decide whether they want to be bound by a treaty or not.
Article 127 Withdrawal
1. A State Party may, by written notification addressed to the Secretary-General of the United Nations, withdraw from this Statute. The withdrawal shall take effect one year after the date of receipt of the notification, unless the notification specifies a later date.
2. 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 which may have accrued. Its withdrawal shall not affect any cooperation with the Court in connection with criminal investigations and proceedings in relation to which the withdrawing State had a duty to cooperate and which were commenced prior to the date on 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.
Therefore, states can withdraw from the RS, but it does not take effect until one year after the notification. In accordance with art. 70 (1)(b) of the Vienna Convention on the Law of Treaties of 1969 that stipulates that the termination of a treaty under its provisions does not affect any right, obligation or legal situation of the parties created through the execution of the treaty prior to its termination, art. 127 (2) RS establishes that states shall not be discharged, by reason of its withdrawal, from the obligations arising from the Statute while there were a party to it, 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.
As it was stated by the PTC II in the Burundi situation, if an official investigation under art. 15 (4) RS is opened before the effective withdraw date, then the Court would be able to exercise its jurisdiction over the crimes committed until that day not subject to any time limit. This aligns with the object and purpose of the RS because if the jurisdiction of the Court expires after withdrawal, state parties would be able to use withdrawal as a tool to avoid the Court’s jurisdiction.
But the situation in the Philippines is slightly different. The investigation was opened more than two years after the effective withdraw date, with only a preliminary examination opened during the period in which the Philippines was a state party. And this is the argument used first by the Government of the Philippines and then by the Defense of Rodrigo Duterte to affirm that the Court lacks jurisdiction over the Philippines.
The challenge of the Government of the Philippines
The first time the Court dealt with this issue was in the Decision on the Prosecutor’s request for authorisation of an investigation pursuant to Article 15(3) of the Statute of 15 September 2021. The PTC briefly stated that the Court retains jurisdiction with respect to alleged crimes that occurred on the territory of the Philippines while it was a State Party in accordance with art. 70 VCLT and the prior decision regarding the Situation in Burundi.
After the Prosecutor requested to resume the investigation previously deferred to the Philippines in 2021, the government of the Philippines argued that the Court had no jurisdiction over the Philippines situation pursuant to the principles of non-intervention and sovereign equality of the UN Charter. In its authorisation pursuant to article 18(2) of the Statute to resume the investigation of 26 January 2023, the PTC dismissed this argument affirming that by ratifying the RS, the Philippines explicitly accepted the jurisdiction of the Court. The Philippines challenged the decision, raising four different grounds of appeal, being the first one that the PTC erred in finding that the Court could exercise its jurisdiction on the basis that the Philippines was a State Party at the time of the alleged crimes, despite its subsequent withdrawal from the RS.
On 18 July 2023, the Appeals Chamber decided to not rule about the jurisdictional challenge by the Philippines of the art. 18 Decision arguing that this decision was not about jurisdiction and therefore it is not included among the decisions eligible for appeal under art. 82 RS. The AC ruled that the Philippines should have raised the question of the effect of its withdrawal on the Court’s jurisdiction before the Pre-Trial Chamber.
However, in their dissenting opinion judges Perrin de Brichambaut and Lordkipanidze pointed to the fact that the Philippines could not raise the jurisdictional issue at the PTC in the art. 15 proceedings because first the RS does not foresee the participation of the concerned State in the relevant proceedings, and second the RS does not provide for the possibility of a State to file an appeal against a PTC’s ruling in the context of article 15 proceedings. The first opportunity that the Philippines had to raise the question was in the context of art. 18 (2) proceedings. The Philippines raised up the general issue of the alleged lack of subject-matter jurisdiction of the Court during the PTC’s proceedings, and the specific issue of the lack of jurisdiction because the withdrawal in the appeal. But the AC ruled that there was not link between the first issue raised at the PTC and the appeal’s issue, and because of that reason the AC did not consider this issue in its judgment.
Notwithstanding, the dissenting judges not only disagree with the inadmissibility of the jurisdictional challenge but also support the Philippine’s arguments in regard with the ratione temporis jurisdiction after the state withdrawal. In their opinion, the existence of jurisdiction and the ability to exercise jurisdiction are two different issues. For the Court to exercise jurisdiction it is required that the preconditions set forth in article 12 RS, namely that the State of nationality or the territorial State is a Party to the Statute, are met. Therefore, the appropriate time to make the determination as to whether the preconditions of article 12 RS are met is when the exercise of the Court’s jurisdiction is triggered under art. 13, not when the crimes were allegedly committed. In other words, the Prosecutor cannot commence the process of triggering the jurisdiction of the Court under art. 13(c) RS once a withdrawal has become effective and the state in question is no longer a party to the RS.
Furthermore, in the wording of art. 127 (2) RS when stipulates that 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 it became effective, are not included the preliminary examinations. Preliminary examinations are informal in nature, and it is because of this reason that a decision of the PTC is needed to open an official investigation. An interpretation of art. 127 (2) RS allowing the possibility for the Court to have indefinitely jurisdiction over the crimes committed when the state was a party to the RS as ruled by the PTC in the article 15 decision will be against the principles of international law regarding the law of treaties and the effect of a withdrawal.
With this decision, the AC left unanswered the issue of the jurisdiction of the Court over the Philippines, but a new opportunity for the Court to close this debate came with the arrest of Rodrigo Duterte in 2025.
The challenge of the Defense of Rodrigo Duterte
On 12 March 2025, Rodrigo Duterte, former president of the Philippines, was surrendered to the ICC. In the arrest warrant issued on 7 March 2025, the PTC only touched the issue of the jurisdiction of the Court superficially, citing the previous art. 18(2) Decision and stating that despite Philippines withdrawal, the Court retains jurisdiction with respect to alleged crimes that occurred on the territory of the Philippines while it was a State Party.
On 1 May 2025, the Defense of Duterte submitted a challenge to the jurisdiction of the Court pursuant art. 19(2) RS. The challenge was base in the argument that the Court cannot excercise its jurisdiction over the Philippines after the country's effective withdrawal, following the dissenting opinion of Judges Perrin de Brichambaut and Lordkipanidze. A preliminary examination initiated by the OTP like the one started in 2018 about the Philippines cannot be considered a exercise of the Court's jurisdiction since it is not a matter under consideration of the Court regarding art. 127(2) RS because preliminary examinations are not formal procedures and the term “Court” does not include the OTP.
However, none of these arguments convinced the PTC, who on 23 October 2025 rejected the Defence Challenge to the Jurisdiction of the Court. The PTC affirmed that according to the general rule of interpretation of treaties of art. 31 VCLT, the ordinary meaning of “any matter which was already under consideration by the Court” includes preliminary examinations started by the OTP. The Court ruled that this interpretation of the jurisdiction system of the Court guarantees that the right of a State to withdraw from the Statute is respected, while ensuring that it is not able to abuse that right by shielding persons from justice in relation to alleged crimes that are already under consideration by the Court in a manner that undermines the object and purpose of the Statute.
Therefore, the PTC ruled that the Court had jurisdiction over the situation in the Philippines and the case against Duterte.
On 14 November 2025, the Defense of Duterte appealed the PTC decision, what bring us to today’s ruling.
The Appeals Chamber Ruling
The AC rejected the four grounds of appeal raised by the Defense of Duterte: an alleged error by the PTC in finding that article 127(2) of the Statute is lex specialis with respect to article 12 RS; that a preliminary examination is not a matter under consideration within the meaning of article 127(2) RS; that "the Court" in article 127(2) RS includes the Office of the Prosecutor; and an alleged error by the PTC in finding that the object and purpose of the RS permits the opening of an investigation even after the effective withdrawal of the Philippines.
The AC findings can be summarised in a single sentence: the withdrawal regime set out in the RS preserves the Court's ability to exercise its jurisdiction over the crimes committed before the effective withdrawal date.
Conclusion
With this ruling, the AC closed the debate about the jurisdiction of the ICC over the Philippines and set a clear interpretation of how to deal with a state withdrawal. Even if no official investigation has been opened, the Court retains jurisdiction in case of a withdrawal if the OTP initiated a preliminary examination before the effective date of withdrawal.
This finding is key to preventing member states from escaping the jurisdiction of the Court by withdrawing when the first indication of an investigation is made public. In this way, the Court can fight against impunity for the most serious crimes of concern to the international community.