ICC Rules Withdrawal Does Not Erase Jurisdiction in Duterte Crimes-Against-Humanity Case

The International Criminal Court’s Pre-Trial Chamber I has rejected former Philippine president Rodrigo Roa Duterte’s challenge to the Court’s jurisdiction, clearing the way for proceedings to continue over alleged crimes against humanity tied to the Philippines’ “war on drugs.”

In a 32-page decision issued Thursday, the Chamber held that Article 127(2) of the Rome Statute preserves the ICC’s authority over “any matter which was already under consideration by the Court” before a State’s withdrawal takes effect. Because the Office of the Prosecutor opened a preliminary examination on February 8, 2018, and the Philippines’ withdrawal took effect on March 17, 2019, the “Philippines Situation” remained under ICC consideration, and jurisdiction was not lost.

“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,” the Chamber wrote, finding that the term “the Court” in Article 127(2) includes the Office of the Prosecutor during the preliminary examination phase.

The Defence had argued that the ICC could not exercise jurisdiction because the authorization of an investigation on September 15, 2021, came more than two years after withdrawal, and that Article 12(2)’s “preconditions to the exercise of jurisdiction” require a State to be a Party at the time jurisdiction is exercised.

The Chamber acknowledged that Articles 12 and 13 ordinarily require contemporaneous State Party status but ruled that Article 127(2) is lex specialis: in cases where a matter was already under consideration before withdrawal, the Part 2 jurisdictional regime continues to apply as if the State remained a Party for crimes allegedly committed prior to the withdrawal’s effective date.

The Chamber also denied the Defence’s request to postpone a ruling on jurisdiction pending arguments about Mr. Duterte’s fitness to stand trial, calling jurisdiction “fundamental to the proceedings” and noting that an adverse ruling would end the case outright.

The decision recounts key milestones: the Rome Statute entered into force for the Philippines on November 1, 2011; Manila notified its withdrawal on March 17, 2018; the withdrawal took effect on March 17, 2019; the Chamber authorized an investigation in 2021 and its resumption in January 2023; an arrest warrant was issued on March 7, 2025; and Mr. Duterte was arrested by Philippine authorities on March 12, 2025, then surrendered to the ICC, making his first appearance on March 14, 2025.

Addressing treaty interpretation under the Vienna Convention on the Law of Treaties, the Chamber said its reading of Article 127(2) aligns with Article 70’s rule that the termination of a treaty does not affect rights, obligations, or legal situations created through its execution. It added that allowing a State to avoid scrutiny by withdrawing after a preliminary examination begins would undermine the Statute’s object and purpose of ending impunity for the most serious crimes.

The Chamber also noted the Philippines’ post-withdrawal engagement with the Court—including a 2021 deferral request under Article 18(2) and Duterte’s arrest and surrender in 2025—as supporting its interpretation that the ICC retained authority over the situation.

With the jurisdiction challenge dismissed, the case—The Prosecutor v. Rodrigo Roa Duterte—moves forward toward pre-trial proceedings covering alleged crimes committed between November 1, 2011, and March 16, 2019.