It is emphatically the province and duty of the judicial department to say what the law is.<\/p>
\n
John Marshall, <\/span><\/em>Marbury v. Madison<\/span>, 5 U.S. (1 Cranch) 137, 177 (1803)<\/span><\/em><\/p><\/blockquote><\/p>\n The Daily Tribune editorial of 26 October 2026 \u201cWhere is judicial wisdom<\/em><\/a>,<\/em>\u201d poses a measured but important question: why should the Supreme Court leave unresolved the legal basis for arresting and surrendering Senator Ronald \u201cBato\u201d Dela Rosa while he remains in the Philippines and the government intensifies its efforts to locate him? The questions before the Supreme Court concern the International Criminal Court\u2019s jurisdiction after the Philippines\u2019 withdrawal from the Rome Statute, as well as the domestic legal authority to arrest and surrender a Filipino citizen. Yet the government may act before the Supreme Court resolves these questions.<\/p>\n The editorial\u2019s concern is not that the Supreme Court should decide the case one way rather than another; it is that the Supreme Court should decide it while its decision can still have practical effect. That concern is worth examining.<\/p>\n I have previously written about the ICC\u2019s jurisdiction over former President Rodrigo Duterte, the Appeals Chamber\u2019s ruling, and Senator Dela Rosa\u2019s distinct position (here<\/a>, here<\/a>,\u00a0here<\/a>). I have argued that the Supreme Court should resolve the jurisdictional and domestic legal questions before another Filipino citizen is surrendered to The Hague. Responses to my arguments raise issues worth considering. Some are substantial; others conflate questions that should be kept separate.<\/p>\n My purpose here is not to defend Dela Rosa, to express a view on his guilt or innocence, to suggest that the killings associated with the anti-drug campaign should go uninvestigated, or to suggest that the Supreme Court reverse the ICC\u2019s decision or interfere with its proceedings. The point is narrower: the ICC\u2019s conclusion about its own jurisdiction does not, by itself, resolve whether Philippine officials have lawful authority under Philippine law to arrest and surrender Dela Rosa. That question belongs to the Supreme Court and should be answered before events render it moot.<\/p>\n The issue is law, not allegiance<\/strong><\/p>\n Public debate has increasingly framed the issue as a choice between supporting the ICC and tolerating impunity. That is an understandable reaction to the gravity of the allegations, but it is a false choice.<\/p>\n One can believe that the alleged killings linked to the Duterte administration\u2019s anti-drug campaign demand accountability and still question whether the ICC lawfully retained jurisdiction after the Philippines\u2019 withdrawal from the Rome Statute. One can believe that victims and their families deserve justice and still insist that any arrest and surrender be grounded in proper legal authority.<\/p>\n Those positions are not contradictory.<\/p>\n The allegations against Dela Rosa are grave. The ICC has issued an arrest warrant, finding reasonable grounds to believe he bears criminal responsibility for the crime against humanity of murder. That is a finding at the arrest-warrant stage, not a conviction. The allegations remain to be tested through a fair judicial process, and Dela Rosa is entitled to the presumption of innocence and its accompanying protections.<\/p>\n Gravity, however, does not resolve the jurisdictional question. Jurisdiction is not a technicality that can be set aside when the allegations are serious. It is the legal foundation for a court\u2019s authority. Likewise, a finding that the ICC lacks jurisdiction would not establish Dela Rosa\u2019s innocence, determine whether crimes were committed, or prevent Philippine authorities from investigating and prosecuting conduct within their jurisdiction.<\/p>\n These are separate questions. The first concerns whether the ICC has jurisdiction under the Rome Statute; the second, whether the Philippines may lawfully cooperate with the proposed arrest and surrender; and the third, whether the alleged crimes should be investigated and prosecuted, and by whom. The fact that these questions intersect does not make them interchangeable.<\/p>\n What the ICC has decided, and what remains for the Supreme Court<\/strong><\/p>\n The first objection is straightforward: the ICC has already decided the jurisdictional issue. The Pre-Trial Chamber considered the challenge in the Duterte proceedings, and the Appeals Chamber confirmed the ICC\u2019s jurisdiction on April 22, 2026. The ICC regards the matter as settled for its proceedings and will proceed accordingly.<\/p>\n That is so. But it does not dispose of the domestic question.<\/p>\n The Supreme Court is not being asked to serve as an appellate chamber of the ICC; it cannot reverse or invalidate the Appeals Chamber\u2019s judgment within the ICC\u2019s legal system, nor can it direct how the ICC conducts its proceedings. The question before it is different: may Philippine authorities lawfully arrest and surrender Dela Rosa in light of the Philippines\u2019 withdrawal from the Rome Statute and the constitutional and statutory framework governing the exercise of governmental power?<\/p>\n The ICC determines its jurisdiction under the Rome Statute. The Supreme Court determines questions of Philippine constitutional and domestic law, including whether Philippine officials have acted lawfully. The ICC\u2019s conclusion is authoritative within its own proceedings. It does not automatically resolve every domestic legal question that arises when Philippine authorities are asked to act on an ICC warrant.<\/p>\n There is a legitimate concern that domestic courts should not be able to undermine an international tribunal merely by adopting a different interpretation of the treaty establishing it. If every State could declare the ICC\u2019s jurisdiction invalid whenever it disagreed with the ICC\u2019s interpretation, the system would be vulnerable to unilateral obstruction. But that is not the proposition advanced here. The Supreme Court is not being asked to determine the ICC\u2019s jurisdiction for all purposes or to bind the ICC; it is being asked to determine the limits of Philippine governmental authority.<\/p>\n Respecting the ICC does not require the Supreme Court to surrender its constitutional role. Exercising that role does not constitute defying the ICC.<\/p>\n The real disagreement: Article 127(2)<\/strong><\/p>\n The Philippines voluntarily ratified the Rome Statute and was bound by it while it remained a State Party. Under Article 127(1), withdrawal did not take effect immediately upon notification; a one-year period applied, during which the Philippines remained bound by the Statute. Nor does withdrawal retroactively erase obligations that had already arisen.<\/p>\n That much is not seriously in dispute. The question is what, in fact and in law, occurred before the withdrawal took effect on March 17, 2019, and whether those steps were sufficient to preserve the ICC\u2019s authority to proceed thereafter.<\/p>\n Article 127(2) provides that withdrawal does not affect certain obligations arising while a State was a party, including cooperation obligations and matters already under consideration by the ICC before withdrawal takes effect. The central dispute is whether the preliminary examination of the situation in the Philippines, publicly announced by the Office of the Prosecutor in February 2018, was sufficient to bring the matter within that provision.<\/p>\n The ICC\u2019s position is that it was. The preliminary examination was an official function of the Office of the Prosecutor, conducted within the framework of the Rome Statute and concerning alleged crimes committed while the Philippines was a State Party. On this view, the matter was already under consideration by the ICC before withdrawal took effect. The later authorization to open a formal investigation did not create an entirely new matter; it allowed the ICC to continue with one already preserved under Article 127(2).<\/p>\n That is a weighty argument. Article 127(2) is intended to preserve existing matters and obligations rather than allow a State to defeat them merely by withdrawing from the Statute. It would be wrong to read the provision as though withdrawal erased everything that preceded it.<\/p>\n Still, there is another side to the question. The Rome Statute distinguishes between a preliminary examination and a formal investigation. A preliminary examination is the Prosecutor\u2019s assessment of information received to determine whether there is a reasonable basis to proceed. It does not, on its own, authorize a formal investigation. When the Prosecutor seeks to open an investigation on the Prosecutor\u2019s own initiative under Article 15, the Statute requires an application to and authorization from the Pre-Trial Chamber. This requirement is not a procedural formality. It provides an independent judicial check on the Prosecutor\u2019s decision to initiate an investigation, ensuring that the statutory threshold has been met and that the matter falls within the ICC\u2019s jurisdiction before the ICC\u2019s investigative machinery is set in motion. It is an important safeguard, balancing the Prosecutor\u2019s authority to initiate an investigation with the need for judicial oversight.<\/p>\n That authorization was obtained in the Philippine situation on September 15, 2021, more than two years after the Philippines\u2019 withdrawal had taken effect.<\/p>\n The distinction matters. If the preliminary examination itself preserved jurisdiction, what precisely must have occurred at that stage? Is the public announcement of an examination sufficient? Must the Prosecutor have taken identifiable investigative steps? Must the matter have reached a particular stage of development? And how is a State to know whether activity within the Prosecutor\u2019s Office has reached the point at which withdrawal will no longer have the consequences contemplated by Article 127?<\/p>\n These are not merely technical questions. They concern the relationship among the Statute\u2019s procedural stages and the point at which the ICC\u2019s authority is preserved despite a State\u2019s withdrawal. Article 15(3)\u2019s requirement of judicial authorization is part of the procedural framework States Parties agreed upon.<\/p>\n The Appeals Chamber (in my opinion, wrongly) has adopted the broader interpretation. Yet the issue was not free from disagreement within the ICC itself. Judges Perrin de Brichambaut and Lordkipanidze dissented on this point, and Judge Lordkipanidze raised it again in a later dissent. A dissent does not determine the law or displace the majority judgment. It does, however, show that the interpretation is contested by judges of the very institution charged with applying the Statute. The disagreement is not manufactured simply to shield an accused person from accountability.<\/p>\n The object and purpose of the Rome Statute must, of course, be considered. One concern is that a State might withdraw as soon as it learns that the Prosecutor is examining allegations against it, thereby undermining the ICC\u2019s work. That possibility should not be dismissed. The Statute was not designed to allow States to evade obligations that have already arisen.<\/p>\n But a treaty\u2019s purpose cannot replace its terms or collapse the distinctions the treaty itself draws. The question is not whether strategic withdrawal should be encouraged. It should not. The question is what the States Parties agreed would happen when a State withdraws and which procedural steps are sufficient to preserve the ICC\u2019s authority. If the treaty\u2019s safeguards are inadequate to address a particular risk, the answer may lie in clarification or amendment. It cannot be assumed that jurisdiction may be enlarged whenever a broader interpretation would advance a desirable objective.<\/p>\n The Philippines must honor the obligations it accepted. But those obligations must be identified by interpreting the treaty, not by assuming that every claimed extension is valid.<\/p>\n The Supreme Court\u2019s earlier ruling does not end the inquiry<\/strong><\/p>\n Another argument relies on the Supreme Court\u2019s earlier decision on the Philippines\u2019 withdrawal from the Rome Statute. That decision recognized that withdrawal did not necessarily extinguish the ICC\u2019s jurisdiction over conduct committed while the Philippines was a State Party and acknowledged individuals\u2019 continuing liability for such conduct.<\/p>\n That statement is relevant and should not be ignored. Yet it does not necessarily resolve the issue at hand.<\/p>\n The present question is more specific. It is not simply whether the ICC may exercise jurisdiction over conduct allegedly committed before withdrawal. It is whether that jurisdiction was preserved under the Rome Statute\u2019s procedural requirements before withdrawal took effect, given that the formal investigation was authorized only in September 2021.<\/p>\n Nor did the earlier decision determine whether a preliminary examination, conducted without prior judicial authorization of an investigation, constituted a matter already under consideration within the meaning of Article 127(2). That precise question was not before the Supreme Court then.<\/p>\n The general proposition that withdrawal does not extinguish jurisdiction already preserved under the Statute is distinct from the question of whether the procedural steps taken in the Philippine situation were sufficient to preserve that jurisdiction. The Supreme Court should carefully examine its earlier decision, including the scope and legal significance of the passage on which it relies. It should neither disregard its own prior pronouncements nor treat a general statement as resolving a distinct issue that was not before it.<\/p>\n The domestic legal question remains<\/strong><\/p>\n There is a related objection: the Philippines cannot escape its obligations incurred while it was a party to the Rome Statute. Correct. But that proposition assumes what remains to be decided: whether the ICC\u2019s jurisdiction was preserved in this case.<\/p>\n The alleged conduct occurred, at least in part, while the Philippines was a State Party. That is important, but it is not the only relevant temporal question. The Statute also sets out when and how the ICC may exercise jurisdiction. The date of the alleged conduct and the date on which jurisdiction was validly triggered or preserved are related but distinct matters. Establishing the first does not, without more, resolve the second.<\/p>\n Nor does the Supreme Court\u2019s examination of the domestic legal position constitute interference with the ICC; it is an inquiry into the conduct of Philippine authorities. It must identify the legal basis for the government\u2019s proposed arrest and surrender of Dela Rosa, assess the effect of withdrawal, and examine the relevant constitutional provisions, legislation, and jurisprudence.<\/p>\n![\"\"](\"https:\/\/i0.wp.com\/michaelgkarnavas.net\/blog\/wp-content\/uploads\/2026\/11\/icc_supreme_court_wordpress_optimized.jpg?resize=410%2C273&ssl=1\")
<\/p>\n
![\"Don't](\"https:\/\/i0.wp.com\/michaelgkarnavas.net\/blog\/wp-content\/uploads\/2015\/05\/comments2.png?resize=274%2C184&ssl=1\")
<\/p>\n","protected":false},"excerpt":{"rendered":"