The interpretation of the Rome Statute is governed by the provisions of articles 31 to 33 of the Vienna Convention on the Law of Treaties. The relevant provisions must be interpreted systematically, taking into account the object and purpose of the Statute, which is to put an end to impunity for the perpetrators of the most serious crimes of concern to the international community as a whole and thus contribute to the prevention of such crimes. (para. 1, underlined added)
Judgment on the appeal of Mr. Rodrigo Roa Duterte against Pre-Trial Chamber’s “Decision on the Defence Challenge to the Jurisdiction on the Courts” of 23 October 2025
Legal texts, much like religious ones, rarely yield a single intelligible meaning. They invite interpretation; they sustain it. In doing so, they inevitably reflect not only the words on the page but also the institutional instincts, interpretive philosophy, and normative priorities of those tasked with applying them.
The Rome Statute is no exception. Perspective matters. Purpose matters. And institutional orientation – especially in a court expressly created to confront atrocity crimes – matters profoundly.
When adjudication is guided by a strong commitment to the Statute’s anti-impunity mandate, the interpretive method can shift subtly yet decisively. Textual ambiguities no longer appear as limits; they begin to resemble obstacles. Procedural distinctions no longer function as safeguards; they begin to appear as technicalities that can frustrate the Statute’s overarching purpose.
None of this necessarily implies bad faith. Indeed, it is important to acknowledge at the outset that reasonable interpreters may approach the same provisions with different emphases. The more difficult point is that the interpretive method itself becomes increasingly elastic once “ending impunity” is placed at the center of judicial reasoning. That dynamic is especially visible in the Duterte jurisdictional judgment.
And it is here that something else, something more contextual, also matters for understanding how this case re-entered the ICC system when it did.
When the Duterte matter resurfaced before the Court, the ICC was, in practical terms, not overwhelmed with active proceedings. For a tribunal often described as heavily burdened, there was a relative lull in visible activity. Then, quite suddenly, former Philippine President Rodrigo Roa Duterte returned to the center of the ICC’s attention, ultimately leading to the issuance of an arrest warrant nearly forty months after the Office of the Prosecutor (OTP) first announced it was conducting a preliminary examination into the Philippine situation.
That chronology is not incidental. It does real analytical work.
The OTP did not seek authorization from the Pre-Trial Chamber to open a formal proprio motu investigation under Article 15(3) until long after the Philippines had ceased to be a State Party to the Rome Statute. Indeed, for approximately twenty-six months before that request was filed, the Philippines was already entirely outside the ICC framework. In my view, that temporal sequence should have done far more work in the jurisdictional reasoning than it ultimately did.
It is not enough to say that the alleged crimes may have occurred while the Philippines was still a State Party. That speaks to the existence of jurisdiction at a particular historical moment. The harder question is whether jurisdiction was properly exercised in accordance with the Statute before it lapsed. Jurisdiction, once lost under the Statute’s framework, cannot simply linger in suspended animation, waiting to be reactivated whenever the OTP later decides to proceed.
And that is precisely why the distinction between a preliminary examination and a formal investigation matters so profoundly.
The Rome Statute draws that distinction clearly. A preliminary examination is not an investigation. It requires no judicial authorization and operates largely within the OTP’s internal domain. Only after the Prosecutor seeks and obtains authorization from the Pre-Trial Chamber under Article 15(3) may a formal proprio motu investigation lawfully commence.
To collapse those stages into a single jurisdiction-preserving continuum is not a neutral interpretive step. It is a choice that treats structurally distinct procedural thresholds as functionally interchangeable for purposes of jurisdictional continuity.
Press releases stating that the OTP is “looking into” allegations are not jurisdictional triggers. They are not Article 15(3) applications. They are not judicial authorizations. They are, at most, administrative signals that something may develop further.
This is where the Appeals Chamber’s (AC) reasoning becomes increasingly difficult to reconcile with the statutory scheme. However one approaches the question, the underlying difficulty remains the same: the Rome Statute contains jurisdictional limits, procedural sequencing, and carefully drawn institutional distinctions that cannot simply be set aside merely because the allegations are serious or because the ICC’s anti-impunity mandate is compelling.
This is the deeper concern.
When jurisdictional and procedural provisions are interpreted primarily to avoid impunity in a particular case, there is a risk they cease to function as meaningful constraints. They become flexible obstacles rather than fixed limits. While this may produce short-term institutional satisfaction, over time it risks something more consequential: the perception among States Parties that jurisdictional boundaries within the Rome Statute are no longer stable legal commitments but contingent outcomes shaped by interpretive direction.
This perception matters.
The Philippine Supreme Court Aside: The Dela Rosa Controversy
It is against this backdrop that the Philippine Supreme Court discussion becomes relevant.
Previously, I explained why Senator Ronald Dela Rosa’s arrest warrant raises a distinct and still live constitutional question within the Philippine legal order. The point was never to relitigate the ICC’s internal conclusions as such, but rather to highlight that the Philippine Supreme Court is now confronted with an independent legal question of its own: whether Philippine authorities may lawfully cooperate with ICC processes in light of the jurisdictional objections that have re-emerged following the AC’s Duterte Judgment and, in particular, the interpretive reasoning upon which it rests.
Critics often rely on the Philippine Supreme Court’s EN BANC Decision in G.R. No. 238875 (16 March 2021), particularly the passage stating:
The International Criminal Court retains jurisdiction over any and all acts committed by government actors until March 17, 2019. Hence, withdrawal from the Rome Statute does not affect the liabilities of individuals charged before the International Criminal Court for acts committed up to this date. (p. 81)
But that formulation, properly understood, does not resolve the question now arising. Aside from the fact that the Court was never asked to address the discrete issue that has arisen from the AC’s Duterte Judgment, making this obiter dictum, it also speaks to a different issue: the existence of jurisdiction in a temporal sense. It does not engage the more precise issue now in contention: whether jurisdiction was validly exercised in accordance with the procedural architecture of the Rome Statute before the jurisdictional window is said to have closed.
This distinction – between the existence of jurisdiction and its lawful exercise – is not merely semantic. It is foundational. It is also precisely the distinction that re-emerges in the AC’s reasoning in Duterte, which, in turn, gives renewed urgency to the Dela Rosa proceedings.
The question before the Philippine Supreme Court is therefore not whether it should sit in appellate review of the ICC, nor whether it should substitute its interpretation for that of an international tribunal. Rather, it is whether, within the Philippine constitutional framework, cooperation with an ICC arrest warrant can proceed without judicial determination of a threshold jurisdictional objection that is now presented as live, arguable, and legally consequential.
On this view, the controversy remains plainly justiciable within the Philippine constitutional framework. The matter cannot easily be dismissed as academic or moot where Dela Rosa may still be entitled to concrete legal relief that would be effectively unavailable absent judicial intervention. Nor would the Supreme Court be asked to resolve a political question in the constitutional sense. The issue before it would instead concern the exercise of the Court’s ordinary judicial function: assessing the legality of continued cooperation with ICC processes in light of the jurisdictional objections now being articulated following the AC’s Duterte Judgment.
Why the Implications Extend Beyond the Case
Now let me return to the broader institutional concern.
To understand why the implications of the Duterte Judgment extend beyond Duterte himself – and beyond the Philippines – it is useful to consider a series of hypotheticals. Not as abstract law-school exercises, but as practical institutional stress tests that fit comfortably within the ordinary day-to-day functioning of the OTP.
Assume the OTP receives a communication alleging conduct that may constitute crimes within the ICC’s jurisdiction. Perhaps it arrives through a formal submission by an NGO. Perhaps it arrives through a dossier compiled by activists. Perhaps it arrives through a widely circulated report by Human Rights Watch, Amnesty International, or another organization documenting alleged atrocities. Or perhaps it simply emerges through open-source reporting and media coverage that begins to attract institutional attention.
The Prosecutor reviews the material and directs staff to “look into the matter.” Internally, a file is opened. Staff begin gathering publicly available material. Reports are archived, articles are collected, and open-source videos are downloaded and cataloged. Analysts are informally instructed to monitor developments and remain alert for any escalation or corroborating information that may emerge over time.
At that point, what exactly exists?
Has a preliminary examination already begun in the legal sense? Or does this remain tentative and amorphous – merely the earliest stage of institutional awareness, falling short of the structured process contemplated by the Rome Statute and OTP policy?
Suppose no witnesses are contacted, no compulsory measures are sought, no formal legal assessment is completed, and no Article 15(3) application is prepared. The OTP merely continues to gather publicly available information while internally monitoring developments and discussing whether the matter warrants further attention.
What then?
What if internal memoranda begin circulating? What if staff are instructed to preserve materials for possible future review? What if periodic updates are prepared for senior officials? What if internal meetings are held to discuss jurisdictional possibilities or evidentiary developments, but the matter is never publicly designated as a formal preliminary examination?
At what precise point does institutional awareness transform into jurisdiction-preserving prosecutorial activity?
And now assume that on the same day, the Prosecutor first instructs staff to “look into” the allegations, or shortly thereafter, the State concerned submits a formal notice of withdrawal under Article 127.
The jurisdictional question immediately becomes acute.
Is jurisdiction preserved upon receipt of the communication itself?
Upon opening an internal file?
Upon informal staff review?
Upon passive collection of publicly available material?
Upon circulation of internal memoranda?
Upon informal designation as a “preliminary examination”?
Or only once judicial authorization under Article 15(3) is sought from the Pre-Trial Chamber?
Each answer produces a materially different jurisdictional consequence.
And this is precisely where the interpretive logic reflected in the Duterte Judgment begins to matter far beyond the immediate facts of Duterte or the Philippines.
The concern is not necessarily that one answer is obviously correct and another obviously absurd. The deeper concern is that retrospective reconstruction of earlier prosecutorial conduct may be sufficient to preserve jurisdiction after withdrawal, so long as that conduct can later be characterized as falling within the conceptual umbrella of a “preliminary examination” – a procedural stage that, after Duterte, begins to assume something approaching the same jurisdiction-preserving effect as a formally authorized investigation.
That is an important shift.
Once retrospective reconstruction is sufficient to anchor jurisdiction after withdrawal, the conceptual boundary between preliminary examination and investigation begins to lose its structural clarity. The distinction risks becoming temporal rather than legal; descriptive rather than jurisdictional.
Effectively, the line separating preliminary examination from investigation begins to look less like a firm procedural threshold and more like a fluid continuum capable of retrospective reinterpretation depending on institutional necessity. Once that happens, the practical force of Article 127 itself begins to appear considerably less determinate than many States Parties may have assumed when consenting to the Rome Statute framework.
For States Parties, this is not an abstract jurisprudential debate confined to academic journals or appellate chambers in The Hague. States consent to ICC jurisdiction on the understanding that the Rome Statute sets out identifiable procedural thresholds, temporal limits, and jurisdictional boundaries. Those limits matter because consent depends on the perception that the boundaries are intelligible, stable, and reasonably predictable.
But if jurisdiction may be effectively preserved through internal prosecutorial activity invisible to both the State concerned and the public – activity that may only later be deemed jurisdictionally significant once litigation begins – then the practical certainty associated with withdrawal under Article 127 becomes far more difficult to assess ex ante. This, in turn, risks generating precisely the kind of institutional anxiety that has historically made some States wary of expanding international adjudication in the first place.
The difficulty becomes even more pronounced once OTP policy language enters the picture.
Policy documents are, in principle, designed to guide internal prosecutorial practice. They are managerial instruments intended to provide structure and flexibility to prosecutorial decision-making. They are not jurisdictional instruments, nor are they amendments to the Rome Statute. Nor are they substitutes for the procedural architecture negotiated and ratified by States Parties.
But once interpretive reasoning treats informal prosecutorial activity as potentially jurisdiction-preserving, OTP policy language can assume a very different role. What begins as internal administrative guidance may later, retrospectively, function as a proxy for jurisdictional definition itself.
This may not necessarily be the product of bad faith. The more difficult and more important point is that interpretive elasticity naturally expands when legal reasoning becomes heavily oriented toward preserving institutional outcomes in cases involving serious allegations. Once interpretive method begins to tilt in that direction, it becomes increasingly difficult to resist the gravitational pull of purpose-driven reasoning.
Here, a familiar tension in legal interpretation quietly reappears: the relationship among text, meaning, and institutional orientation.
It is not unusual, particularly in international adjudication, for interpretation to be influenced by a strong sense of institutional mission. Courts dealing with atrocity crimes are, almost by definition, animated by the desire to ensure that serious crimes are not left unpunished. That is entirely understandable. But it also creates a structural tension: when statutory text appears to constrain that mission, interpretation may gradually stretch to accommodate it.
This is where Lord Atkin’s famous warning, later invoked by Judge David Hunt in a Dissenting Opinion in Prosecutor v. Slobodan Milošević, is especially resonant. He recalled the exchange from Alice in Wonderland:
“When I use a word,” Humpty Dumpty said in rather a scornful tone, “it means just what I choose it to mean, neither more nor less.” “The question is,” said Alice, “whether you can make words mean so many different things.” “The question is,” said Humpty Dumpty, “which is to be master – that’s all.”
The point is not that judges consciously adopt such an approach. Rather, interpretive authority always contains a latent question of control: whether meaning remains anchored in text and structure or is gradually reshaped to align with preferred institutional outcomes.
In domestic systems, this tension is constrained by hierarchy, legislative correction, constitutional structure, and more stable systems of precedent. In international criminal law, however, those corrective mechanisms are less immediate and often politically fragmented, making interpretive discipline all the more important.
Even the most carefully drafted instruments are not immune to this dynamic. However comprehensive a statute may be, interpretation remains an act performed by individuals situated within institutional roles, carrying with them their own understandings of justice, accountability, institutional purpose, and legal responsibility.
The difficulty, then, is not that interpretation becomes purposive. Interpretation is always purposive to some degree. The difficulty is that purposive interpretation, once untethered from sufficiently firm jurisdictional constraints, risks gradually transforming limitation into flexibility, flexibility into elasticity, and elasticity into something approaching redefinition.
None of this is meant to deny that there are serious arguments on the other side. One can readily understand the concern that an excessively rigid or formalistic approach to jurisdictional sequencing could incentivize strategic withdrawals intended to frustrate accountability. Nor is it difficult to appreciate why judges operating within a court expressly created to combat impunity might resist interpretations that could create accountability gaps in cases involving grave allegations.
But that is precisely why these jurisdictional distinctions matter. Once interpretation begins to drift too heavily toward preserving substantively desirable outcomes, procedural thresholds risk becoming increasingly elastic. Once elasticity becomes normalized, the line between interpretation and jurisdictional expansion becomes progressively harder to identify with confidence.
Ultimately, this is the broader institutional concern underlying the Duterte Judgment, and it is why the implications extend well beyond the facts of any single case.
Teleology, Limits, and Institutional Balance
None of this is meant to question the legitimacy of the ICC’s anti-impunity mandate. That mandate is real, foundational, and central to the Rome Statute project. But it is not exclusive.
The Statute is also a jurisdictional instrument. It is a negotiated framework that grants power while limiting it.
The difficulty arises when teleology begins to dominate interpretation to the point that jurisdictional boundaries appear secondary to preserving outcomes. When that happens repeatedly, States Parties may begin to question whether jurisdictional limits are genuinely stable legal commitments or contingent interpretive outcomes.
To be clear, there is a serious counterargument: a more formalistic approach could incentivize strategic withdrawal. This concern cannot be dismissed lightly. Equally, interpretive flexibility cannot come at the cost of predictability in the jurisdictional structure. Without that predictability, State consent becomes harder to sustain.
A Final Reflection
Let me end where the Duterte Judgment begins: with the principle that interpretation must be guided by the Statute’s object and purpose – to end impunity. This is undeniably correct, but it is not exclusive. The Rome Statute is also a system of limits, built on consent, withdrawal rights, procedural sequencing, and jurisdictional thresholds.
The real question raised by the Duterte Judgment is whether those limits continue to operate as independent legal constraints or whether they are increasingly absorbed into teleological reasoning whenever serious allegations are at stake. If it is the latter, the concern for States Parties is not simply how jurisdiction is exercised in individual cases. It is how far it can now be said to reach.
And that, ultimately, is where the more foreboding questions arise.
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