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MANILA, Philippines — The International Criminal Court has rejected former President Rodrigo Duterte's bid to dismiss the case against him, affirming its jurisdiction over alleged crimes committed in the Philippines before the country withdrew from the Rome Statute.
In a majority decision on Wednesday, April 22, the ICC Appeals Chamber dismissed all four grounds of appeal raised by Duterte's defense.
"The defense's request for the immediate and unconditional release of Mr. Duterte was deemed moot," Presiding Judge Luz del Carmen Ibanez Carranza said.
Duterte, who was not present in the courtroom, had challenged the ICC's jurisdiction, arguing that the court had no legal basis to continue proceedings after the Philippines withdrew from the Rome Statute in 2019.
The panel that decided Duterte's appeal was composed of Carranza and Judges Tomoko Akane, Solomy Balungi Bossa, Gocha Lordkipanidze and Erdenebalsuren Damdin.
First ground of appeal: Withdrawal from ICC and the Rome Statute
On the first ground of appeal, Duterte's defense argued that the Pre-Trial Chamber erred in finding that Article 127(2) of the Rome Statute is "lex specialis," or a specific law that prevails over a general law, in relation to Article 12 on the court's preconditions for exercising jurisdiction.
Reading the decision, Carranza said the Appeals Chamber found no error in the Pre-Trial Chamber's interpretation.
She said Article 12(2), which sets the conditions for the court's exercise of jurisdiction, must be read together with Article 127, which deals with the effect of a state's withdrawal from the treaty.
“The appeals chamber finds no error in the pre-trial members' interpretation of Article 12(2), as requiring that the relevant state party, that the relevant state be party to the statute at the time the court exercises its jurisdiction read together with Article 127, which establishes when the withdrawal takes effect and the regime applicable under this under these circumstances,” Carranza explained.
Article 12 (2) and Article 127 (2). Article 12 (2) of the Rome Statute of the ICC refers to the “preconditions to the exercise of jurisdiction”:
“In 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 or have accepted the jurisdiction of the Court in accordance with paragraph 3:
(a) The State on the territory of which the conduct in question occurred or, if the crime was committed on board a vessel or aircraft, the State of registration of that vessel or aircraft;
(b) The State of which the person accused of the crime is a national.”
Meanwhile, Article 127 (2) of the Rome Statute provides for the withdrawal of a state party:
“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.”
Second ground of appeal: Preliminary examination
On the second ground of appeal, Duterte's defense argued that a preliminary examination does not qualify as a "matter under consideration" by the court under Article 127(2).
The chamber also rejected this argument by majority vote, with Lordkipanidze dissenting.
The majority found that the Pre-Trial Chamber properly assessed the ordinary meaning of "any matter under consideration" and that the preliminary examination into the Philippines situation qualified as such.
The Appeals Chamber noted that the prosecutor had initiated the preliminary examination, announced it publicly, taken procedural steps and submitted a request for an investigation before the Philippines' withdrawal took effect. Carranza said:
“Having examined the arguments raised by the parties and participants, the appeal chamber finds that the pre-trial chamber properly assessed the ordinary meaning of the words any matter under consideration."
Lordkipanidze had previously ruled in Duterte's favor in a 2023 jurisdictional dispute.
Third ground of appeal: Meaning of 'the court'
On the third ground of appeal, the defense argued that the Pre-Trial Chamber erred in interpreting "the court" in Article 127(2) to include the Office of the Prosecutor.
The Appeals Chamber rejected that argument.
Carranza said the Pre-Trial Chamber followed the Vienna Convention on the Law of Treaties by first considering the ordinary meaning of "court" and then its context within the Rome Statute.
Carranza said:
“The appeals chamber observes that in line with the interpretative methodology required by the Vienna Convention on the Law Treaties, the pre-trial chamber first considered the ordinary meaning of the word court. Noting the ambiguities in the ordinary meaning of the word, the pre-trial chamber then considered the context of the term in the statute as a whole...
“The appeals chamber finds that the statute employs the term the court in distinct senses and it must be ascertained which one is appropriate with respect to the provisions and their interpretation."
Article 34 of the Rome Statute states that the court is composed of four organs: the Presidency; the Appeals Division, Trial Division and Pre-Trial Division; the Office of the Prosecutor; and the Registry.
Fourth ground of appeal: Object and purpose
On the fourth ground of appeal, Duterte's defense argued that the Pre-Trial Chamber erred in finding that the object and purpose of the Rome Statute allow an investigation to continue even after a state's withdrawal.
The defense also argued that the Pre-Trial Chamber made a policy-oriented determination.
Carranza said the continuation of a preliminary examination beyond the one-year withdrawal period reflects a balance between the responsibilities states accept when they ratify the Rome Statute and their ability to withdraw from it.
"The continuation of the preliminary examination past the one-year withdrawal period is reflective of the balance found by the appeals chamber between the responsibilities that states accept upon ratification of the statute, including the aim set out in the preamble to put an end to impunity and the ability of the states to effectively withdraw from the statute within a clear timeline."
What comes next for Duterte at the ICC?
With the jurisdiction appeal resolved, Duterte's case now returns to the Pre-Trial Chamber, which must decide whether to confirm the charges and send the case to trial. The confirmation of charges hearing was held from February 23 to 27.
The ICC says the hearing was meant to determine whether there is sufficient evidence to establish "substantial grounds" to believe the suspect committed the crimes charged.
