The ICC’s Residual Jurisdiction & the Situation in the Philippines

Background

On 23 October 2025, the International Criminal Court’s (‘ICC’) Pre-Trial Chamber I (‘PTC’) dismissed Duterte’s challenge to the Court’s jurisdiction. Duterte, to recall, was arrested in March 2025 on allegations of crimes against humanity in the context of the Philippine government’s anti-narcotics campaign. Seemingly, Duterte’s case presents a novel issue for the ICC. During his presidency, Duterte withdrew the Philippines from the Rome Statute (‘Statute’) in March 2018, a month after the Office of the Prosecutor (‘OTP’) opened a preliminary examination into crimes that may have been committed during Duterte’s so-called ‘Drug War’. Yet, it was only in May 2021, twenty-six months after the Philippines’ withdrawal became effective, that the OTP requested from the PTC an authorisation for a full investigation. In September 2021, the PTC granted this request.

This sequence of events is crucial to Duterte’s jurisdictional challenge. Duterte, in his jurisdictional challenge, claims that the Court has no jurisdiction over his case as the Philippines was no longer a party to the Statute when the PTC authorised the OTP’s full investigation into the situation in the Philippines. Moreover, he claims that Article 127(2) of the Statute, which allows the Court to retain jurisdiction over matters already under its consideration after the effectivity of a state’s withdrawal, is not applicable to his case. Nevertheless, the PTC rejected both claims and the matter is now pending before the Appeals Chamber (‘AC’). This essay submits that the PTC correctly dismissed Duterte’s challenge and supports the Court’s exercise of jurisdiction over the situation in the Philippines.

Preconditions for & Exercise of Jurisdiction

Duterte, following Judges Perrin de Brichambaut and Lordkipanidze’s dissenting opinion in the PTC’s decision on the OTP’s request for authorisation under Article 18(2), asserts that a holistic reading of the Statute reveals that the preconditions under Article 12(2)—the state of nationality or the territorial state is a party to the Statute—must be extant when the Court exercises jurisdiction based on the OTP’s initiation under Article 13(c). This ‘exercise of jurisdiction’, Duterte claims, occurs when the PTC authorises a full investigation under Article 15(4). For this reason, Duterte argues that the Court cannot exercise jurisdiction over his case as the Philippines withdrawal had already been effective when time the PTC authorised the OTP’s full investigation.

However, contrary to Duterte’s claim, the PTC’s authorisation is not the point at which the Court exercises jurisdiction. Article 13(c) does not state that the Court exercises jurisdiction when the PTC authorises the OTP’s request for a full investigation. Instead, it provides that the ‘Court may exercise its jurisdiction’ if the OTP ‘has initiated an investigation […] in accordance with Article 15’. Here, it is important to note that under Article 15(6), the ‘investigation’ that the OTP initiates is actually a ‘preliminary examination’. This preliminary examination, as Bergsmo, Pejic, and Zhu point out, and not the PTC’s authorisation for a full investigation, is the ‘trigger mechanism’ for the Court’s exercise of its jurisdiction. Cassese, Gaeta, and Jones appear to share this view, as does the OTP. Under Article 15, the PTC’s role, as Schabas observes, is to provide an ‘additional safeguard’ to the OTP’s discretion to investigate. Only when the PTC has approved the OTP’s request may the latter begin a full investigation. That said, this does not detract from the fact that the Court already exercises jurisdiction when the OTP initiates a preliminary examination. In the Philippines’ case, it was still a party to the Statute when the OTP opened its preliminary examination.

Effect of Withdrawals under the Rome Statute

Crucially, the operation of the articles on the precondition for and the exercise of the Court’s jurisdiction is still subject to Article 127. This provision, according to the PTC, is a ‘lex specialis […] regime that appl[ies] to the exceptional circumstance of a state’s [withdrawal] from the Statute’. Under Article 127(2), a party’s 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’. In effect, the provision ‘balances [a state’s] right […] to withdraw from the Statute with the overall objective of […] putting an end to impunity’. Ordinarily, a withdrawing state would ‘no longer bound by the Statute’s jurisdictional provisions’. However, if the ‘matter concerned was already under the [Court’s consideration before] the [state’s] withdrawal […] [became] effective’, then the Court would retain its jurisdiction.

Like Heller and Jacobs, Duterte argues that the phrase ‘any matter under consideration’ does not cover the OTP’s preliminary examination as it is not ‘a formal procedural phase’ but ‘internal, informal, and non-justiciable’. Furthermore, Duterte asserts that the term ‘Court’ in Article 127 only ‘refers to the judicial organ of the [ICC] to the exclusion of the [OTP]’. Accordingly, Duterte submits that Article 127 does not apply to the situation in the Philippines as the ‘matter’ under consideration when the Philippines’ withdrawal became effective was only a preliminary examination by the OTP. That said, these claims, as Whiting and Janssens submit, and in line with the views of scholars like Slade, Clark, Pellet, and Schabas, may not be entirely accurate.

First, the phrase ‘any matter’ is arguably broad enough to cover preliminary examinations. As the PTC observes, these are ‘broad general terms’ that do not refer to a ‘specific stage of proceedings’. Had ‘any such specific limitation been intended, the provision would instead have used a word such as “trial” or “investigation” so as to narrow its application to a particular procedural stage’. The change in the wording between the Draft Statute and the Statute also supports this interpretation. While the Draft Statute referred to ‘proceedings already commenced’, a phrase that is narrower, Article 127 as adopted speaks of ‘any matter which was already under consideration’.

Furthermore, preliminary examinations, while less formal, are more than Duterte purports them to be. A preliminary examination is not merely a perfunctory activity. As the PTC points out, it is ‘a statutory process and a necessary precondition to seeking authorisation for […] a [full] investigation’. Indeed, in its Commentary to the Draft Statute, the ILC characterised preliminary examinations as a ‘flexible structure’ that ‘does not involve undue expense or the proliferation of offices’. They are an integral part of the process with their ‘own guarantees of independence of the prosecution process and of the rights of the [potential] accused’ to ensure that ‘complaints [are] not be brought before the Court’ without sufficient basis. For this reason, Article 15 allows the OTP to ‘seek additional information’ from states, UN organs, and international organisations and ‘may receive […] testimon[ies] at the seat of the Court’. In addition, contrary to Heller and Jacobs’ claim, it is not the case that any mere assessment of information constitutes a preliminary examination. The OTP emphasises the unique conditions that allow for its work to proceed independently, impartially, and objectively. With regard to the situation in the Philippines, while the OTP has, since 2016, received communications and reports documenting alleged crimes, it was only in 2018, after ‘careful, independent, and impartial review’ that it decided to open a preliminary examination.

Second, there appears to be no reason why the term ‘Court’ in Article 127 should not include the OTP. As Hall, Nsereko, and Ventura observe, the Statute uses the term in its broad and narrow senses. According to the PTC, whether the term ‘Court’ refers to ‘the Chambers of the Court, the [OTP], or both’ depends ‘upon the context of the provision’. Duterte may be correct in noting that the Statute, at times, distinguishes between the ‘Court’ and the OTP to signal that these are two different organs. Moreover, there are provisions where the term ‘Court’ clearly refers to the ‘judges’. Yet, there are obvious reasons for these. In the former, the provision delineates the organs’ respective functions (see e.g. Articles 15, 18, 19, 67, 68). In the latter, the function is necessarily ‘judicial’ which the OTP cannot perform (see e.g. Articles 17, 18, 20, 23, 58(4), 72, 73, 87, 89, 90, 99, 100, 103, 109, 110).

That said, it may be incorrect to construe the term ‘Court’ to mean ‘judges’ where the Statute does not make this distinction as in Article 127. As the PTC notes, the term in ‘its ordinary meaning is better defined by reference to the […] the specific institution of the [ICC]’. This is a point made clear by Article 1 which ‘designates the [entire ICC] as “the Court”’. The ILC also emphasises this in its Commentary to the Draft Statute stating that ‘the term “Court” […] refers to the [ICC] as a whole [unless] specific functions are intended to be exercised by particular organs’. For its part, the Trial Chamber (‘TC’) in Kenyatta also construed the term ‘Court’ in the expansive sense where the Statute does not suggest otherwise. In interpreting the term ‘Court’ in Article 93(1), it notes that a ‘restrictive interpretation’ would be ‘inconsistent with the […] division of mandates [among] the different organs of the Court [and its] efficient and effective functioning’.

Suppletory Application of VCLT Article 70

Finally, the Statute’s Article 127, as the PTC observes, is also ‘consistent with the general framework provided for by Article 70 of the [Vienna Convention on the Law of Treaties (‘VCLT’)] which addresses the consequences of the termination of a treaty’. VCLT 70(1)(b) provides that, unless otherwise provided, a treaty’s termination ‘does not affect any [party’s] right, [duty], or legal […] created through the [treaty’s] execution […] [before] its termination’. Contrary to Duterte’s assertion, the grant of jurisdiction to the Court over offences committed in the Philippines or by its nationals is ‘legal situation’ that arose due to the Philippines’ ratification of the Statute. After all, the Philippines’ ratification permitted the Court to exercise jurisdiction over the situation on the Philippines and triggered the operation of Article 127. This means, according to Pellet and Clark, that matters under consideration by the Court before the effectivity of the state’s withdrawal ‘can continue its course thereafter’. In the alternative, it may be argued that the parties’ duties under the Statute are, in Fitzmaurice’s classification of obligations, ‘absolute’. That is, parties pledge to others to cooperate with the Court’s proceedings. These duties, according to Article 70, survive the Philippines’ withdrawal from the Statute.

Summary

All things considered, a better reading of the Statute suggests that the Court may continue to exercise jurisdiction in the situation in the Philippines. The Philippines was still a party to the Statute when the OTP opened its preliminary examination—the point when the Court exercises its jurisdiction. Furthermore, under the Statute’s Article 127, the Philippines’ withdrawal did not deprive the Court of its jurisdiction. In this regard, the phrase ‘any matter’ is arguably broad enough to cover preliminary examination. Similarly, there appears to be no reason why the term ‘Court’ in Article 127 should not include the OTP. Finally, under VCLT’s Article 70, any ‘legal situation’ that arose while the Philippines was a party to the Statute are not affected by its withdrawal. Accordingly, the AC would be correct in affirming the PTC’s decision which would put to rest any remaining doubts on the Court’s jurisdiction over the situation in the Philippines.