Dissenting Opinion: ICC judge says court may have overstepped legal bounds in jurisdiction case

MANILA, Philippines — A judge of the International Criminal Court (ICC) has warned that the tribunal may have overstepped its legal bounds in asserting jurisdiction over former president Rodrigo Duterte, even as the court’s Appeals Chamber allowed the case to proceed. In a dissenting opinion issued April 22, Judge Gocha Lordkipanidze said the court should not be able to exercise jurisdiction over alleged crimes linked to Duterte’s anti-drug campaign, arguing that prosecutors failed to formally trigger the court’s authority before the Philippines’ withdrawal from the Rome Statute took effect. The majority of the Appeals Chamber dismissed all four grounds of appeal raised by Duterte’s defense and upheld a previous ruling that the ICC retained jurisdiction because the prosecution had begun a preliminary examination prior to the country’s withdrawal. But Lordkipanidze rejected that reasoning, saying a preliminary examination does not qualify as a matter “under consideration” by the court under Article 127(2) of the Rome Statute. “A situation is only under consideration by the Court once a pre-trial chamber authorizes an investigation,” he wrote, emphasizing that preliminary examinations are informal and do not carry sufficient legal weight to establish jurisdiction. He argued that the ICC’s jurisdiction must be triggered before a state’s withdrawal becomes effective, which in this case would have required authorization of a formal investigation within the one-year withdrawal period. According to the dissent, allowing jurisdiction based solely on a preliminary examination risks stretching the court’s authority beyond what the treaty permits and could undermine the rights of states to withdraw. Lordkipanidze also pointed to what he described as a careful balance in the Rome Statute between ending impunity and respecting state sovereignty, warning that the majority’s interpretation could upset that balance. “The Statute thus gives the Court an opportunity to assert its jurisdiction. However, it also respects the States’ right to withdraw,” he said, adding that extending jurisdiction indefinitely would render the withdrawal clause meaningless. He arhued that the Pre-Trial Chamber committed an error in law in interpreting Article 127(2), and that the ICC should not proceed with the case. Despite the dissent, the Appeals Chamber’s ruling stands, allowing proceedings against Duterte to continue before the ICC.

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