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.
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