However, I respectfully dissent from the Majority’s decision … that the Pre-Trial Chamber did not err when finding that a preliminary examination may constitute a “matter […] under consideration by the Court” within the meaning of article 127(2) of the Statute]. As I have previously stated in another dissenting opinion … it is my view that a preliminary examination is not a “matter […] under consideration by the Court” within the meaning of article 127(2) of the Statute, and that a situation is only under consideration by the Court once a pre-trial chamber authorises an investigation into that situation.
–Judge Gocha Lordkipanidze
For the International Criminal Court (“ICC”), the jurisdictional question regarding alleged crimes committed while the Philippines remained a State Party to the Rome Statute is settled. The Pre-Trial Chamber (“PTC”) has spoken, as has the Appeals Chamber (“AC”). Both concluded, in essence, that once the Office of the Prosecutor (“OTP”) announced it was initiating a preliminary examination before the Philippines submitted formal notice of its withdrawal from the Rome Statute, the Court retained jurisdiction, even though the OTP did not seek authorization to open a formal investigation – as required under the ICC’s statutory framework governing proprio motu investigations – until years after the Philippines was no longer a State Party.
Accordingly, as far as the ICC is concerned, there is no remaining jurisdictional dispute. The arrest warrant for Senator Ronald Dela Rosa is valid, and Philippine authorities should execute it and facilitate his transfer to The Hague.
That is the ICC’s position. However, the more important issue – at least for Dela Rosa – is whether the jurisdictional matter remains justiciable under the Philippine Constitution and the Philippine legal system before another Filipino citizen is surrendered to the ICC. In my view, it plainly does.
This distinction matters. The issue is not political. Nor is it about whether serious crimes may have been committed. The issue is whether, as a matter of law, the ICC retained lawful authority to exercise jurisdiction after the Philippines’ withdrawal from the Rome Statute, given the circumstances presented.
Put differently, the issue is not whether the alleged crimes occurred while the Philippines remained a State Party. Rather, the issue is whether the ICC validly exercised its jurisdiction before that jurisdiction lapsed upon withdrawal from the ICC.
This distinction – between the existence of jurisdiction and its lawful exercise – was expressly highlighted in the Dissenting Opinion of Judges Perrin de Brichambaut and Gotch Lordkipanidze in a prior Appeals Chamber Judgment. More recently, Judge Lordkipanidze again raised serious concerns in dissent about the ICC’s jurisdictional reasoning. These may be dissenting voices, but they are important. If nothing else, they confirm that the jurisdictional issue is not beyond dispute.
To be clear, the starting and ending points of any jurisdictional analysis must be the Rome Statute itself. But that does not necessarily mean the Appeals Chamber has the final word in all circumstances. It may have the final word in proceedings before the ICC. That is distinct from whether a sovereign State may independently assess, under its own constitutional framework, whether cooperation with ICC arrest warrants remains lawful after withdrawal from the Statute.
I have previously addressed aspects of this issue and concluded that the ICC lacks jurisdiction. Having now reviewed the Appeals Chamber’s Judgment on Duterte’s jurisdictional challenge, I remain unconvinced. In my view, the Judges interpreted the Rome Statute expansively, equating the initiation of a preliminary examination with the opening of a formal investigation for jurisdiction-preservation purposes, even though the Statute distinguishes those stages and expressly requires judicial authorization before a proprio motu investigation may proceed.
I do not intend to examine and analyze the technical legal arguments in detail. That is not the purpose of this post. Rather, the point is narrower but important: from the perspective of Philippine constitutional law, the jurisdictional issue remains justiciable. Because it remains justiciable, the Philippine Supreme Court should seize the opportunity to address it before any further ICC arrest warrants are executed.
Reasonable jurists can and do disagree on the jurisdictional issues raised in the Duterte litigation. Indeed, that is precisely why judicial review matters.
Like most prosecutorial institutions, international prosecutors naturally lean toward broader interpretations of jurisdictional and procedural authority, while defence counsel lean toward narrower constructions that protect individual rights and state sovereignty. Judges are tasked with resolving those competing interpretations. Most of the time, judges reach sound and defensible conclusions. Occasionally, however – particularly in novel jurisdictional disputes – reasonable disagreement persists even after appellate review.
This dynamic is especially pronounced in matters involving jurisdiction before international criminal tribunals, particularly the ICC. Jurisdictional interpretation in international law inevitably raises questions of sovereignty, consent, and institutional authority. International legal interpretation is often considerably more malleable than is sometimes acknowledged. Even within a carefully drafted statutory framework – fortified by aspirational preambular language, interpretive reliance on the Vienna Convention on the Law of Treaties, and recourse to ordinary dictionary definitions of ostensibly clear terms – judicial interpretation can become highly expansive.
This observation is not intended to ascribe improper motive. It simply reflects how statutory and procedural interpretation often operates in international adjudication. The ICC is no exception. International judges, particularly in jurisdictional disputes, are often required to navigate competing textual, purposive, and institutional considerations. In doing so, interpretive methodology can evolve in ways that significantly expand the ICC’s practical reach beyond what some States Parties may have originally contemplated when accepting the Rome Statute framework.
Indeed, the line between interpretation and institutional expansion can sometimes be exceedingly thin.
Whether one agrees with those interpretive outcomes or not, the key point is that they are neither self-evident nor beyond legitimate legal disagreement. This is precisely why continued constitutional scrutiny by domestic courts should not be dismissed as illegitimate, obstructionist, or hostile to the rule of law.
International criminal tribunals, including the ICC, pose a particular difficulty in this respect because there is no judicial authority above the Appeals Chamber – no third-instance review capable of revisiting contested statutory or constitutional interpretations after judgment has been rendered. The system necessarily relies on acceptance of finality.
But finality before the ICC does not automatically extinguish the legitimacy of constitutional review in domestic legal systems where justiciable issues remain live and unresolved.
Nor is such review an attempt to “overturn” the ICC. Rather, it concerns whether Philippine authorities may lawfully cooperate with ICC requests under Philippine constitutional and legal frameworks, given the jurisdictional objections raised.
This is where Dela Rosa’s situation differs materially from former President Rodrigo Duterte’s.
Once Duterte was transferred to The Hague without a meaningful opportunity for the Philippine Supreme Court to review the arrest warrant’s legality, the jurisdictional issue became, for all practical purposes, settled in his case. Dela Rosa, however, remains in the Philippines and is protected by its constitutional order and judicial institutions.
Accordingly, the Philippine Supreme Court still has the practical ability to determine whether the ICC’s asserted jurisdiction remains legally valid before any surrender takes place.
Recent events underscore why such a review is essential now.
Following reports that the ICC arrest warrant against Dela Rosa had been unsealed, tensions in Manila escalated sharply. Dela Rosa reportedly sought protective custody in the Senate while petitioning the Philippine Supreme Court to restrain local authorities from executing the warrant pending judicial review. Security around the Senate intensified, and reports emerged of chaotic scenes and gunfire in the vicinity. The broader political climate surrounding the ICC proceedings grew increasingly volatile.
Regardless of one’s views on Dela Rosa or the underlying allegations, these developments show that the issue is no longer merely abstract or rhetorical. It has become a live constitutional and institutional controversy with potentially destabilizing domestic implications. This reality strengthens the case for judicial clarification rather than weakens it.
Importantly, the Philippine Supreme Court did not summarily dismiss Dela Rosa’s petition. Although it declined to issue a temporary restraining order immediately, it ordered the government to respond within seventy-two hours.
This procedural step matters. At a minimum, it shows, if not confirms, that the Court recognizes the questions presented are neither frivolous nor entirely settled under the Philippine constitutional framework.
And this is precisely the point. The question is not whether the ICC considers the jurisdictional issue resolved for its own proceedings. Clearly, it does. The question is whether Philippine constitutional institutions retain the authority – and perhaps the obligation – to independently assess whether domestic cooperation with ICC arrest warrants remains lawful after withdrawal from the Rome Statute, given the specific circumstances.
In practical terms, the issue resembles a jurisdictional limitation period. The ICC may once have had authority to exercise jurisdiction, but by failing to seek authorization to investigate before the Philippines’ withdrawal took effect, that window arguably closed.
The Rome Statute was never intended to confer unlimited or perpetual jurisdiction on the ICC, even if a state withdraws from the treaty. States accepted ICC jurisdiction subject to the limits and guarantees set forth in the Statute. Whether these jurisdictional limits were respected here is precisely the type of constitutional question that domestic courts are expected – and obligated – to examine.
As Judges Perrin de Brichambaut and Lordkipanidze warned in dissent, ICC jurisdiction cannot be interpreted to “defy the assurances and guarantees to States embedded in the Statute,” because doing so risks “negative repercussions for the entire Court’s system.”
In my view, the Supreme Court should resolve that question before any surrender occurs. This is not an argument for impunity, nor is it an argument against international criminal justice. It is an argument for constitutional adjudication and the rule of law.
The legal question is serious. The constitutional implications are significant. The political consequences within the Philippines are obvious. Under these circumstances, allowing the Supreme Court to address the matter directly would strengthen democratic institutions rather than weaken them.
Importantly, judicial review would also help depoliticize the issue.
At present, decisions about cooperation with ICC arrest warrants risk being framed primarily as political choices for the executive branch to make. And herein lies the rub. Supreme Court review would instead return the matter to where it properly belongs: within legal institutions that apply constitutional and statutory analysis through transparent judicial procedures.
The Supreme Court should also invite amicus curiae participation from scholars, practitioners, former judges, and international law experts. Such participation would broaden the range of legal perspectives before the Supreme Court and further strengthen the legitimacy of whatever conclusion it ultimately reaches.
Most importantly, judicial clarification would provide guidance not only to law enforcement authorities and political actors but also to future cases involving the relationship among Philippine sovereignty, treaty withdrawal, and international jurisdiction.
Whatever the Supreme Court ultimately decides, the result would carry greater democratic legitimacy and acceptance because it would stem from constitutional adjudication rather than from perceived executive expediency or political pressure.
Critics may argue that judicial review would merely delay proceedings. However, given the considerable time already consumed by the ICC process before the arrest warrant was issued, it is difficult to credibly claim that a brief period of constitutional review before the Philippine Supreme Court would materially prejudice proceedings in The Hague.
The more difficult question may instead be whether there is concern that the Philippine Supreme Court could reach a different jurisdictional conclusion from the ICC. That possibility alone is sufficient reason for judicial review.
The rule of law is not undermined when courts review difficult questions of jurisdiction. Such review reinforces it.
Where unresolved jurisdictional questions remain about the scope of ICC authority after a State’s withdrawal from the Rome Statute, the Philippine Supreme Court is not only entitled to address them – it may be constitutionally obligated to do so before another Filipino citizen is surrendered abroad.
This would not be a defiance of the rule of law but the rule of law operating precisely as it should.
About Author
KARNAVAS’ ICC THEORY: A DANGEROUS LEGAL LOOPHOLE
International criminal lawyer Karnavas’ argument selectively presents one side of a highly contested legal debate while glossing over the strongest counterarguments, particularly the text of the Rome Statute itself, the nature of ICC jurisdiction, and established treaty law principles.
First, the framing is misleading when it suggests that the decisive issue is whether Philippine courts “must first determine” ICC jurisdiction. The International Criminal Court is not legally subordinate to the Supreme Court of the Philippines. The ICC is an international tribunal created by treaty among sovereign states, including the Philippines. While Philippine courts may interpret domestic constitutional implications of cooperation with the ICC, they cannot conclusively dictate the ICC’s own jurisdiction under international law. Otherwise, every withdrawing state could simply nullify international accountability through domestic rulings.
Second, Karnavas’s interpretation of Article 127 is far from definitive. Article 127(2) explicitly states that withdrawal “shall not affect any cooperation with the Court in connection with criminal investigations and proceedings” that began before withdrawal took effect, nor prejudice matters already under consideration by the Court before withdrawal. The ICC’s argument is that the preliminary examination itself constituted a matter already under consideration prior to withdrawal. That interpretation is grounded in the Statute’s continuity clause and the object and purpose of the treaty: preventing states from escaping accountability simply by withdrawing once scrutiny begins.
Karnavas’ critique also creates an artificial distinction between “preliminary examination” and “investigation approved by judges,” as though only the latter has legal significance. But a preliminary examination is an official prosecutorial function under the Rome Statute. The Prosecutor does not act as a private citizen during this stage; the Office of the Prosecutor is already exercising powers granted under the treaty framework.
More importantly, Karnavas’ position produces deeply problematic consequences. Under his theory, a state facing looming crimes-against-humanity scrutiny could simply withdraw immediately upon learning of a preliminary examination and thereby terminate ICC exposure before a formal investigation is authorized. That would create a blueprint for impunity, exactly the loophole Article 127 was designed to prevent.
The “sovereign withdrawal” argument is also overstated. Sovereignty does not mean a state may erase obligations retroactively. States routinely remain bound by obligations incurred during treaty membership even after withdrawal. A country cannot join a treaty, benefit from participation, commit acts during membership, and then later claim all legal exposure vanished the moment it exited.
Equally important, the argument subtly ignores timing. The alleged crimes occurred while the Philippines was still a State Party to the Rome Statute. The ICC is not claiming authority over acts committed after withdrawal. Its claim is limited to alleged conduct during membership. That distinction is central.
In short, Karnavas’ argument is a rhetorically sophisticated but one-sided narrative that exaggerates the supremacy of domestic courts over international tribunals, understates the legal significance of preliminary examinations, minimizes the text and purpose of Article 127, and advances an interpretation that could incentivize states to evade accountability through strategic withdrawal from treaties.
Hi.
All ICC accredited lawyers should give their view in the open, online, open source; albeit anonymous, if afraid of backlash.
Better yet, they come to the Philippines, again anonymously, to see and validate, the clear tension between domestic and ICC jurisdiction over Duterte and Dela Rosa case.
Missed out in the discussion is the politics, which rightly but unfortunately, not made in the open. Precisely, those not part of this case can give their opinion, anonymously or bravely as Michael. My call is to discuss the desire of political opponents to erase Duterte and their family, through ICC or impeachment.
For many, ICC is just a tool, the means, to destroy once political adversary. Without discounting victims cases, the truth is there are even a thousand-fold cases prosecuted here in the Philippines in relation to drug war. This picture therefore is proof that Philippines has a vibrant democracy, more so, a functioning and vibrant judiciary, which removes Duterte case from ICC jurisdiction.
First, ICC jurisdiction is not determined by anonymous opinion polls of “ICC accredited lawyers.” The International Criminal Court is not a Facebook debate club where jurisdiction is settled by whoever speaks the loudest online. Jurisdiction is determined by the Rome Statute, the Court itself, and the principle of complementarity, not by political theater, anonymous commentary, or nationalist sentiment.
Second, the claim that “politics” explains the case against Rodrigo Duterte and Senator Bato Dela Rosa does not erase the legal issues. Every major international criminal prosecution in history involved politics surrounding it, from Slobodan Milošević to Omar al-Bashir. Political consequences do not invalidate legal accountability. Otherwise, every accused leader could simply scream “political persecution” to immunize themselves from prosecution.
Third, the repeated assertion that the ICC is merely a “tool” to destroy political enemies deliberately ignores the central question: were crimes against humanity committed during the anti-drug campaign?
Absolutely!
During the presidency of Rodrigo Duterte (2016–2022), numerous foreign media organizations, international NGOs, and academic publications documented allegations of extrajudicial killings (EJKs) linked to the “war on drugs.” Here are some of the most cited foreign accounts and investigations:
Reuters repeatedly reported on killings connected to Duterte’s anti-drug campaign, ICC proceedings, police operations, and allegations of crimes against humanity. Reuters coverage frequently cited estimates ranging from thousands to tens of thousands of deaths.
BBC News covered Duterte’s admissions about personally killing suspects and documented allegations of police impunity and vigilante killings. One BBC report described killings occurring with “near impunity.”
The Guardian extensively covered the ICC investigation, the Davao Death Squad allegations, and the scale of deaths during the drug war. It reported estimates from rights groups ranging from 12,000 to 30,000 deaths.
AP News reported on ICC warrants, police operations, and allegations that the anti-drug campaign constituted crimes against humanity.
Time Magazine published reports highlighting Duterte’s statements about extrajudicial killings and the international legal implications of those remarks.
Human Rights Watch’s landmark 2017 report, “License to Kill”, documented alleged police involvement in killings and accused authorities of fabricating self-defense narratives. The report investigated 24 incidents involving 32 deaths and argued that the killings reflected systematic abuses.
Amnesty’s report “If You Are Poor, You Are Killed” gathered testimony from witnesses, relatives, police officers, and alleged hired killers. Amnesty concluded that many killings appeared organized, incentivized, and directed against poor communities.
Academic journals such as the Cambridge University Press publication Asian Journal of Law and Society analyzed the scale and structure of the killings, describing the campaign as a form of governance through violence.
Scholarly discussions in genocide and international law journals examined whether the anti-drug campaign could amount to crimes against humanity or even genocide under international law frameworks.
The Philippine National Police (PNP) itself admitted to more than six thousand killings.
The ICC investigates conduct, not popularity. The existence of political opposition does not negate allegations of extrajudicial killings.
More importantly, the argument about “thousands of cases prosecuted in the Philippines” is deeply misleading.
Complementarity under the Rome Statute does not ask whether a country has a generally functioning judiciary. It asks whether the State is genuinely investigating and prosecuting the same persons for substantially the same conduct that the ICC is examining.
That is the critical point Duterte defenders consistently avoid.
You cannot point to random drug cases, street-level prosecutions, or isolated police convictions and pretend they satisfy complementarity. The issue is whether Philippine authorities genuinely investigated and prosecuted the architects, planners, and senior officials allegedly responsible for the systematic killings connected to the drug war.
Where are the Philippine murder charges against Rodrigo Duterte for the killings alleged before the ICC?
Where are the domestic prosecutions against Bato Dela Rosa for command responsibility or crimes against humanity?
Where are the independent state-led proceedings targeting the policy itself rather than low-ranking operatives?
There are none.
A “vibrant democracy” is not proven by rhetoric. It is proven by accountability mechanisms capable of investigating even the most powerful officials. If domestic institutions were truly addressing the same conduct and same individuals, the ICC would have far less basis to proceed.
Instead, what the world witnessed for years were:
• public admissions encouraging killings
• threats against critics,
• repeated attacks on accountability institutions,
• and an atmosphere where police operations often ended with dead suspects and recycled narratives of “nanlaban” (fought back).
The ICC did not invent those facts.
Finally, complementarity is not defeated by nationalism. The Rome Statute was voluntarily signed and ratified by the Philippines, without anybody coercing it to do so, in the full exercise of its sovereignty. While the Philippines later withdrew, in Duterte’s belief that it would shield him from prosecution, withdrawal under Article 127 does not extinguish obligations or erase jurisdiction over crimes allegedly committed during membership.
The legal question is not whether Duterte remains politically influential.
The legal question is whether genuine domestic accountability existed for alleged crimes against humanity during the period when the Philippines was a State Party to the Rome Statute.
So far, Duterte’s defenders continue to answer that legal issue with politics, emotion, and conspiracy theories, because the actual complementarity standard is far more difficult for them to satisfy.
“My call is to discuss the desire of political opponents to erase Duterte and their family, through ICC or impeachment.” – Leo B. Delgra
This narrative deliberately confuses political accountability with political extermination.
To say that the ICC investigation or impeachment efforts are merely attempts to “erase Duterte and their family” is an emotional slogan designed to avoid discussing the actual allegations.
No one is “erasing” a political family by subjecting public officials to legal scrutiny. In a democracy, powerful leaders are not entitled to immunity simply because they are popular, influential, or politically connected. No one is above the law.
The International Criminal Court does not investigate surnames. It investigates alleged crimes.
Impeachment does not punish bloodlines. It addresses alleged constitutional violations or abuses of public office.
If accountability is automatically reframed as “political persecution,” then every investigation of a powerful dynasty becomes impossible. By that logic:
• corruption probes become “political attacks,”
• human rights investigations become “destabilization,”
• and prosecutions become “erasure.”
That is not democracy. That is impunity masquerading as victimhood.
More importantly, this argument dangerously personalizes the issue while sidelining the victims. Thousands of families who lost relatives during the drug war are reduced to mere props in a political narrative centered entirely on Duterte’s survival.
The real issue is not whether Duterte’s opponents politically benefit from investigations. Political consequences naturally follow major legal controversies in every democracy.
The real issue is whether crimes were committed and whether domestic institutions genuinely investigated those responsible.
If Duterte and his allies believe the allegations are false, then the proper response is evidence, due process, and legal defense, not portraying every accountability mechanism as a conspiracy to annihilate an entire family.
No political dynasty, no matter how influential, is above scrutiny. And no democracy remains healthy when accountability is falsely equated with persecution.
“My call is to discuss the desire of political opponents to erase Duterte and their family, through ICC or impeachment.”
This narrative deliberately confuses political accountability with political extermination.
To say that the ICC investigation or impeachment efforts are merely attempts to “erase Duterte and their family” is an emotional slogan designed to avoid discussing the actual allegations.
No one is “erasing” a political family by subjecting public officials to legal scrutiny. In a democracy, powerful leaders are not entitled to immunity simply because they are popular, influential, or politically connected. No one is above the law.
The International Criminal Court does not investigate surnames. It investigates alleged crimes.
Impeachment does not punish bloodlines. It addresses alleged constitutional violations or abuses of public office.
If accountability is automatically reframed as “political persecution,” then every investigation of a powerful dynasty becomes impossible. By that logic:
• corruption probes become “political attacks,”
• human rights investigations become “destabilization,”
• and prosecutions become “erasure.”
That is not democracy. That is impunity masquerading as victimhood.
More importantly, this argument dangerously personalizes the issue while sidelining the victims. Thousands of families who lost relatives during the drug war are reduced to mere props in a political narrative centered entirely on Duterte’s survival.
The real issue is not whether Duterte’s opponents politically benefit from investigations. Political consequences naturally follow major legal controversies in every democracy.
The real issue is whether crimes were committed and whether domestic institutions genuinely investigated those responsible.
If Duterte and his allies believe the allegations are false, then the proper response is evidence, due process, and legal defense, not portraying every accountability mechanism as a conspiracy to annihilate an entire family.
No political dynasty, no matter how influential, is above scrutiny. And no democracy remains healthy when accountability is falsely equated with persecution.