On March 11, 2025, the former president of the Philippines was arrested and taken into custody by the International Criminal Court (ICC). Detained in The Hague, Rodrigo Roa Duterte faces trial for “the crime against humanity of murder in relation to killings in the ‘war on drugs’ campaign.”
Will Duterte stand trial? Morally, he certainly should – estimates for the number of extrajudicial killings go as high as 30,000, with the government itself acknowledging more than 6,200 deaths during anti-drug operations. But what does the Rome Statute say about the situation of a State that’s no longer a Party to the treaty?
A careful look at the language of the Rome Statute, its drafting history, and the requirements of early-stage ICC proceedings demonstrate that the case against Duterte should continue.
Procedural Matters
Unsurprisingly, Duterte’s defense team argues the former president should not stand trial, although not solely because the Philippines withdrew from the treaty. In a May 2025 filing that built on a 2023 ICC judicial dissent, they argued that despite having stricto senso jurisdiction over Rome Statute crimes committed while the Philippines was a State Party, the Court lost the right to exercise its jurisdiction when the Philippines formally exited the treaty in March 2019, because Pre-Trial Chamber I’s authorization for the investigation was not issued until 2021.
In its 2021 authorization, the Chamber, by contrast, found the Court’s exercise of jurisdiction “is not subject to any time limit,” but noted “particularly” the preliminary examination of the Philippines situation, which was announced five and a half weeks prior to the Philippines’ notice of withdrawal (transmitted in 2018). The Appeals Chamber’s majority affirmed the Pre-Trial Chamber’s 2021 authorization, while declining on procedural grounds to review the jurisdictional question. The next stop is again at Pre-Trial Chamber I, perhaps prior to Duterte’s hearing on the confirmation of charges, which is scheduled for September 23 (but may be subject to delay).
The Chamber’s decision on jurisdiction is the one that will count. But the question is also being argued in the public sphere. In some cases this is by allies of the former president who have disputed the ICC’s jurisdiction from the start, perhaps to deflect attention from the enormity of the apparent crimes, or from Duterte’s self-incriminating statements. When the trial (hopefully) starts, still others may be tempted to take up the issue as well, to bolster a narrative promoted recently by authoritarian figures regarding the so-called persecution of good leaders by national and international legal systems. There are also sincere friends of the Court who are wary of real or perceived overreaches and how they may affect the Court’s long-term standing.
If one takes Rome Statute article 127 on withdrawal at face value, the ICC retains the right to exercise jurisdiction. Indeed, article 127 plainly states 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 the withdrawal became effective.” That view aligns with the Rome Statute’s underlying treaty purpose of ending impunity, and is also the position taken thus far by the ICC’s judicial chamber, including the majority of its judges who have ruled on it.
That said, treaties sometimes have conflicts. Too broad a view of a body’s power can undercut rights its treaty promises signatories, including withdrawal rights. And the early-stage judicial pronouncements on this question to date have been brief and did not explore it in depth, excepting the dissent.
The judges dissenting from the 2023 Appeals Chamber decision, Marc Perrin de Brichambaut and Gocha Lordkipanidze, are distinguished jurists and public servants. Nevertheless, the textual interpretation they make, and on which the rest of their arguments arguably depend, takes a narrow view that is demonstrably not the norm of practice. Furthermore, the framework they assert for preliminary examination timeframes matches neither the historical practice of the Court, nor the recommendations of the Court’s Independent Expert Review. If mandated, this approach would incentivize rushed and cursory work on preliminary examinations in some cases, particularly with regard to the complementarity assessment of a State’s credibility to address alleged crimes itself.
Similarly, defense counsel plays an essential role in accountability processes, including those at the ICC, and their views should be considered with seriousness. Nevertheless, an examination of the Duterte defense’s motion shows its effect is to compound additional error onto the already-flawed dissent upon which it builds.
A careful look at treaty language, drafting history, and the practical necessities of the preliminary examination stage demonstrate article 127 means what it seems to and that the Philippines case should continue.
The Text of the Treaty
There are several specific provisions in the Rome Statute that feature in the jurisdictional debate: articles 12-13, article 15, and article 127(2) (with article 34 interpreting it).
Article 12 sets forth “[p]reconditions to the exercise of jurisdiction.” It establishes that
“[i]n the case of article 13, paragraph (a) or (c), the Court may exercise its jurisdiction if one or more of the following States are Parties to this Statute. . . (a) The State on the territory of which the conduct in question occurred. . .[or] (b) The State of which the person accused of the crime is a national” (emphasis added by 2023 dissenting judges).
Article 13 (c), meanwhile, sets forth that
“[t]he Court may exercise its jurisdiction with respect to a crime… if… [t]he Prosecutor has initiated an investigation in respect of such a crime in accordance with article 15.”
Article 15 further elaborates:
“The Prosecutor may initiate investigations proprio motu on the basis of information on crimes within the jurisdiction of the Court.”
Proprio motu means that the Prosecutor is “acting alone,” e.g. the action is not initiated by the UN Security Council, nor by State referral, but solely by the Prosecutor. The portion of activity preceding a Prosecutor’s request for the Pre-Trial Chamber’s authorization of an investigation has come to be called the “preliminary examination.”
Article 127(2) sets forth that withdrawal from the Rome Statute, while permitted,
“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.”
It is this language, in particular, that gives rise to disagreement between the Pre-Trial Chamber, its dissenting judges, and the defense. Closely connected to this is article 34, which identifies the Office of the Prosecutor as an “organ of the Court,” e.g. part of it.
The Views of the Pre-Trial Chamber
The Prosecutor and (so far) the Chamber interpret the preliminary examination into the situation of the Philippines as a “matter already under consideration before the Court” in alignment with article 127(2), further justified by article 34 describing the Office of the Prosecutor as part of the Court.
This concept was alluded to jurisprudentially in relation to the first State Party to withdraw from the treaty, Burundi. In its 2017 authorization to proceed with an investigation into that situation, Pre-Trial Chamber III affirmed that Rome Statute crimes committed before Burundi’s effective withdrawal date remained within the court’s jurisdiction, writing, “[b]y ratifying the Statute, a State Party accepts… the jurisdiction of the Court… for a period… up to at least one year after a possible withdrawal… [and is] unaffected by a withdrawal…”
But acknowledging the question that is now in play in the Philippines situation, the Chamber also noted, “the relationship between the first and second sentences of article 127(2) of the Statute may be construed in different ways.” The Chamber deferred adjudicating the question to some later time, writing, “the Chamber considers that it need not resolve this matter in relation to this Request… [because] “the present decision is delivered prior to the entry into effect of Burundi’s withdrawal…”
When authorizing the Philippines investigation in 2021, Pre-Trial Chamber I referenced Burundi, as well as the Vienna Convention on the Law of Treaties, asserting that a “State Party’s withdrawal from the Rome Statute does not affect the Court’s exercise of jurisdiction over crimes committed prior to the effective date of the withdrawal,” and that exercise of jurisdiction “is not subject to any time limit” – suggesting the preliminary examination into the Philippines situation may not have even been needed.
But also deferring a question they didn’t have to address, the Chamber clarified their position holds “particularly since the preliminary examination here commenced prior to the Philippines’ withdrawal” (emphasis added), explicitly referencing article 127(2) in the footnote supporting the assertion. The Appeals Chamber’s majority affirmed the Pre-Trial Chamber’s authorization, and declined on procedural grounds to review jurisdiction.
The Views of the Dissenters and the Defense
The dissenting judges focused on article 12 in light of articles 13 and 15, emphasizing the words “are Parties to this Statute” (italicization by the judges). From this, they reasoned “the appropriate time to make a determination as to whether the preconditions of article 12 of the Statute are met is… when the pre-trial chamber authorizes the commencement of the investigation… not when the crimes were allegedly committed.” At the time when Pre-Trial Chamber I authorized the investigation, in September 2021, the Philippines was no longer a State Party.
The dissenting judges also took the position that a preliminary examination is not a “matter under consideration by the Court” for the purposes of article 127, arguing such examinations are “informal… [and] do not carry sufficient weight for engaging the Court’s jurisdiction…” Otherwise, they say, it would “render [article 127] meaningless by allowing to trigger the Court’s jurisdiction indefinitely.” They assert that the year-long waiting period before withdrawal becomes effective, under 127(1), is sufficient for a preliminary examination and authorization hearing to be completed.
There are three key problems with the dissenting judges’ arguments. They misapply the present tense in article 12. They unduly downplay the preliminary examination’s legal significance in the article 15 process. And their assumption that a year is enough time for the preliminary examination stage does not withstand scrutiny for every case. The Duterte defense team goes even further, arguing untenably that the definition of “the Court” in article 34 should be discarded, in favor of a narrower definition that suits their client’s objective.
Problem 1: Misapplying the Present Tense in Article 12
Without an unambiguous language conflict between articles 12 and 127 of the treaty, there’s less justification for narrowing the Court’s jurisdiction in a manner that would work against the treaty’s underlying purposes. Such a conflict only exists if “Parties to the Statute” in article 12(2) is unambiguous in referring to the set of State Parties in the moment the ICC’s Pre-Trial Chamber issues a ruling to authorize an investigation. But if “Parties to the Statute” can truthfully be understood to refer to those entities that were Parties at the time alleged crimes occurred, then article 12’s use of the present tense in the verbiage “are Parties to the Statute” would capture this as well, without raising a conflict between these two provisions.
From a purely linguistic perspective, it is not hard to see that “Parties to this Statute” can refer to past status, notwithstanding the use of the present tense in any particular construction. Consider, for example, a future situation in which a multilateral treaty (the Rome Treaty or another) is no longer effective. An historian later writing about past diplomatic efforts might title a table “State Parties to the ___ Treaty.” It would not be immediately clear whether the table includes all States known to have been parties, States that were parties for the treaty’s entire lifetime, States that were parties at the time the treaty went out of effect, States that were parties for some minimum duration, or something else.
A real world example demonstrating an analogous understanding of how language sometimes works in this way is the “Certain Iranian Assets (Islamic Republic of Iran v. United States of America)” case, involving a freeze the United States placed in 2012 on nearly $2 billion. Iran brought the issue to the International Court of Justice (ICJ) in 2016, arguing the freeze violated the 1955 “Treaty of Amity, Economic Relations, and Consular Rights between the United States and Iran.” Article 21 of that treaty reads: “Any dispute between the High Contracting Parties as to the interpretation or application of the present Treaty… shall be submitted to the International Court of Justice…”
The U.S. withdrew from the ICJ in 2018, and later argued that the ICJ lacked jurisdiction in the Certain Iranian Assets case. But the U.S. arguments didn’t rely on its withdrawal. All parties agreed “the denunciation of the Treaty… by the United States… ha[d] no effect…” That the language in article 21 referencing “High Contracting Parties” included former parties in this context was uncontroversial. Conversely, had the United States not withdrawn, “High Contracting Parties” would also easily refer to current parties. It is therefore clear that the term “High Contracting Parties” taken on its own is ambiguous, with the context in each of these cases defining its intended temporality. This relationship between context and temporality also would not change if article 21 instead read: “Any dispute between states that are High Contracting Parties…”
Applying the same logic, article 12(2) of the Rome Statute plausibly refers to States that were parties at the time of alleged crimes, and is not a barrier to relying on article 127(2)’s extension of certain obligations to States subsequent to their withdrawal. Referring back to the linguistic perspective, the dissenting judges err here in not acknowledging that the object of the verb “are” in this context, “Parties to the Statute,” is an object with legal meaning, whose status in the present by its nature reflects its history.
Problem 2: Downplaying the Preliminary Examination’s Legal Significance
The dissenting judges claimed that the preliminary examination is too informal or insufficiently weighty to trigger article 127(2). But along with the subjectivity of that judgment, it’s not clear from the treaty or first principles why some minimum degree of formality would be needed, if the process is real and is acknowledged in the treaty’s structure. Objectively, preliminary examinations play a formal role in the treaty’s process by which to consider a matter. Article 13 establishes that a Prosecutor’s initiation of a proprio motu investigation, which is based on the results of a preliminary examination, is the precondition for the Chamber to consider the authorization of the investigation.
Furthermore, article 15(2) sets forth a specific, treaty-based framework for these activities, for example empowering the Prosecutor to seek oral or written testimony, proscribing how that testimony will be received (by the Prosecutor at the seat of the Court), and from which entities it may be sought. That this process is mandatory is shown by the word “shall” appearing in the paragraph. Preliminary examinations therefore legally underpin all seven of the Court’s 17 situations to date that have been brought proprio motu.
The Prosecutor is also a treaty-designated Court officer, elected by the Assembly of States Parties. Today, though not initially, preliminary examinations typically are announced to State Parties and the world, further indicating an elevated level of formality and significance.
Treaty drafters deliberated extensively about how powerful the Prosecutor should be, with over a hundred delegates weighing in specifically on the proprio motu investigative mechanism. The majority advocated for, and all ratifying parties ultimately accepted, proprio motu investigations, arguing that justice should not depend on action by a State or the Security Council. This clear expression of State support for this mechanism elevates the weight of this crucial first step necessary to advance a proprio motu investigation.
Finally, the idea that Chamber authorization formalizes an investigation doesn’t appear in the treaty history. Rather, drafters conceived of Chamber authorization as providing a safeguard that could be invoked against potential abuses of power by a politicized Prosecutor. One might legitimately view Chamber authorization as conferring a desirable degree of formality. But that’s not an objective justification for creating the defense’s proposed extra-legislative obstacle to the Court carrying out its mission.
Problem 3: Some Preliminary Examinations Require More Than One Year
As set forth above, the dissenting judges argue that the one-year waiting period proscribed for withdrawal should be sufficient time to allow a Prosecutor to obtain authorization for an investigation and thereby (in their view) trigger jurisdiction.
However, a one-year limit is problematic, due in part to inherent challenges the ICC faces. As human rights attorney Dino de Leon told the Filipino news site Rappler in March, “Complainants are usually afraid to speak up… and evidence are buried as the state is usually involved.” Prosecutors may also be presented with additional information well into a year following the initiation of a preliminary investigation; Joel Butuyan, an attorney representing Filipino victims, highlighted scenarios in which crimes occur a mere month before State withdrawal.
Some preliminary examinations have been short. The Prosecutor announced a (second) preliminary examination into the situation in the Central African Republic in February 2014, and issued her report in September 2014. On a somewhat lengthier timeline (but still shorter than many others), the Prosecutor announced Burundi’s preliminary examination in April 2016. Following Burundi’s notice of withdrawal (the treaty’s first), the Prosecutor requested authorization for an investigation in September 2017. The Pre-Trial Chamber provided authorization on October 25, two days before withdrawal.
Most preliminary examinations, however, span across multiple years. Afghanistan’s lasted ten. The Court’s Independent Expert Review, a body established by the Assembly of States Parties in December 2019 to “identify ways to strengthen the ICC and the Rome Statute system,” recommended two years, but with exceptions allowed.
Prosecutors say the greatest source of variability in the length of time a preliminary examination may take is complementarity, the principle that the ICC is a court of last resort which should defer to national accountability processes if they are credible. Assessing the credibility of accountability processes that are underway, sometimes requires waiting. Particularly variable are “positive complementarity” efforts, in which Prosecutors hold off in order to incentivize national accountability processes that aren’t already underway. As a 2013 Office of the Prosecutor paper explains, “a significant part of the Office’s efforts at the preliminary examination stage is directed towards encouraging States to carry out their primary responsibility to investigate and prosecute international crimes.”
This was a factor for the Philippines. In 2019 the Office of the Prosecutor (OTP) issued a Report on Preliminary Examinations that states, “the Office has collected and assessed open source information on any relevant national proceedings being conducted by Philippine authorities[, and t]he Office has also monitored proceedings that appear to remain ongoing…”
The report also noted, “out of an abundance of caution the Office also examin[ed] national developments… fall[ing] outside the technical scope of the term ‘national criminal investigations’, including Senate Committee hearings into extrajudicial killings.” A year later, the watch list had expanded to include “an inter-agency panel [convened] to reinvestigate deaths in police WoD [war on drugs] operations… administrative cases against policemen allegedly involved in WoD-related killings, writ of amparo cases and cases brought in front of the… Ombudsman.”
In Burundi, by contrast, in 2017 OTP concluded the government would not address “the violent events,” writing “three commissions of inquiry… examined only a limited number of incidents and focused on the criminal responsibility of… members of the opposition… generally discount[ing] the alleged responsibility of members of the Government… Additionally, to the extent… authorities… cleared members of the security forces… the Office believes that the inquiries… were undertaken for the purpose of shielding the persons concerned from criminal responsibility.”
It demonstrates how centrally treaty drafters viewed complementarity as being to the Rome Treaty framework, that following the authorization of an investigation in a member State, they afforded the State the right under article 18(2) to request a deferral of the investigation, requiring the Prosecutor to reconsider the legitimacy of that State’s own domestic justice processes regarding the alleged crimes. The Duterte administration filed an 18(2) request in 2021, which brought the investigation to a stop for more than a year and a half (the reopening of the investigation was the primary focus of the 2023 appeal).
Preliminary examination lengths have long been a matter of frustration to victims and State Parties alike. Positive complementarity in particular has its skeptics. Nevertheless, the dissenting judges’ view that a year is sufficient to conclude a preliminary examination is an outlier.
Problem 4: Erasing Article 34
The dissenting judges argue a preliminary examination can’t justify invoking article 127(2). Duterte’s defense team goes further, claiming OTP is not in fact a composite part of “the Court” for most treaty text purposes, nor in the Court’s Rules of Procedure and Evidence. This seems to fly in the face of article 34, which establishes the organs of the Court: “The Court shall be composed of the following organs: (a) The Presidency; (b) An Appeals Division, a Trial Division and a Pre-Trial Division; (c) The Office of the Prosecutor; [and] (d) The Registry.” In other words, “the Court” in ICC parlance is not just its judiciary, and the treaty explicitly provides as much.
Furthermore, the defense’s analysis only reflects the treaty’s 40 instances of “by the Court.” There are more than 300 other instances where the treaty references “the Court,” some plainly indicating the Prosecutor.
One – spectacularly – is the same sentence of 127(2) where “matter[s]… already under consideration by the Court” appears. The first half of that sentence states, “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…” It is the Prosecutor who leads investigations in the ICC framework, not the judicial chamber. So, in this instance, “the Court” must encompass OTP.
This example also has relevance for interpreting whether preliminary examinations constitute “matters already under consideration by the Court,” because it’s an additional path that the treaty specifies for jurisdiction surviving withdrawal. That cooperation on “matters already under consideration” is offered separately shows that treaty drafters intended the language to incorporate something additional to an authorized investigation or proceeding.
Additionally, there are some very substantial sections of the treaty for which “the Court” encompasses more than the judiciary. One is Part 12 on “financing,” discussing budgets. Another example can be found in the Rules of Evidence and Procedure in Chapter 2 on “Composition and administration of the Court,” which has subsections for all the Court’s organs, including OTP.
Even within their own (arbitrarily tailored) search, the defense acknowledges two instances they describe as referring to “the Court” as an “administrative entity.” Another way to express that thought is that the language in question doesn’t refer to the judiciary. It’s the Registry mainly which primarily administrates court business.
Finally, the defense includes a incomplete analysis of article 73, which deals with “request[s] by the Court [to a State Party] to provide a document or information in its custody, possession or control.” They write that the reference to the Court in this article “can reasonably be interpreted as applying to the judiciary, as only ICC judges may formally issue requests for cooperation to States under the Rome Statute.” But that seems to run afoul of article 54(3)(c), which provides that the Prosecutor may “seek the cooperation of any State or intergovernmental organization or arrangement in accordance with its respective competence and/or mandate.”
The defense’s argument also seems at odds with Rule 176, paragraph 2 of the Rules of Procedure and Evidence, which specifies, “The Registrar shall transmit the requests for cooperation made by the Chambers and shall receive the responses… from requested States,” whereas “The Office of the Prosecutor shall transmit the requests for cooperation made by the Prosecutor and shall receive the responses… from requested States.” This formulation also falls in line with article 42, which directs that “[t]he Office of the Prosecutor shall act independently as a separate organ of the Court.”
Evidently, the treaty drafters used “the Court” to denote either the entire ICC and its component organs, or one or more of those components, as contexts individually imply. That feels imprecise for a treaty text, but it’s the only framework fitting all the term’s occurrences. To the extent references to the Chambers predominate, it’s likely because the work of the judiciary, which literally lays down the law, requires legal enumeration more often than other Court organs’ activities do.
What’s the Real Meaning of Article 127?
Does the Pre-Trial Chamber and Appeals majority interpretation of article 127 render a State’s right to withdraw from the treaty meaningless, as dissenting judges lament? If the object and purpose of the treaty is an indication, perhaps the intended meaning is that withdrawing States should retain obligations for as long as the processes of justice require.
Regardless, it is clear that the drafters of the Rome Statute took definitive steps to extend treaty bonds even in circumstances involving a withdrawal. They required that withdrawing States wait a year following notice of withdrawal, before withdrawal becomes effective. There is no disagreement that they barred States from cutting off cooperation with authorized investigations in progress. In article 29 they specified there’s no statute of limitations. Perhaps in hopes of heading off future uncertainty, they declared 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.”
Rule of law cuts both ways, and it isn’t wrong to ask this temporal jurisdictional question. But treaty drafters clearly wished to avoid enabling the world’s most powerful people to evade accountability for the world’s worst crimes. If accountability is evaded in the Philippines situation, it would deal a devastating blow to thousands of Filipino victims who have cooperated with the Court and see no prospect within the Philippines for justice. It would also take away the Court’s best chance to demonstrate value, at a time when it faces daunting challenges such as U.S. sanctions, Hungary’s notice of withdrawal, and security uncertainties affecting the budgetary outlooks of world donor States.
This is also a time when sincere friends of the Court are debating questions of gravity that these and other challenges reflect. Some observers may view this jurisdictional question through such a lens. But on its own, the question only addresses the relatively contained issue of whether an ICC situation is a “matter” before the Court as of its first stage, as opposed to only becoming one once it crosses into the second stage.
Should the issue that is at hand be wrongly decided, however, it would indeed take on significant gravity, providing a ready, even sophisticated, off-ramp to States that wish to avoid accountability without seeming to do so. To uphold the Rome Treaty’s core purpose of ending impunity, therefore, while respecting the straightforward language which drafters crafted for that purpose, the trial of Rodrigo Roa Duterte for extrajudicial killings in the Philippine drug war should proceed.
