The Manila Times
A JUDGE of the International Criminal Court (ICC) said the tribunal may have exceeded its legal bounds in asserting jurisdiction over Rodrigo Duterte, even as the court’s Appeals Chamber cleared the way for the trial of the former president to proceed. In a partly dissenting opinion issued on April 22, Judge Gocha Lordkipanidze said the ICC should not be able to exercise jurisdiction over alleged crimes linked to Duterte’s antidrug campaign, since the prosecution failed to formally trigger the court’s authority before the Philippines’ withdrawal from the Rome Statute took effect. The Appeals Chamber majority dismissed all four grounds of appeal raised by Duterte’s defense and upheld an earlier ruling by Pre-Trial Chamber I upholding jurisdiction, reasoning that the prosecution had already begun a preliminary examination before the Philippines withdrew from the ICC. The ruling effectively affirmed the court’s authority to hear the case and allowed proceedings against Duterte to move forward. Lordkipanidze broke with the majority on a central issue — the interpretation of Article 127(2) of the Rome Statute, which governs the effects of a state’s withdrawal. While he agreed that Article 12(2), which sets the preconditions for jurisdiction, must be read alongside Article 127, he rejected the conclusion that a preliminary examination constitutes a “matter under consideration” by the court prior to withdrawal. “A preliminary examination is not a ‘matter under consideration by the Court,’” he wrote, stressing that only a formally authorized investigation by a pretrial chamber meets that threshold. A situation comes under the court’s consideration only when judges authorize an investigation under Article 15(4) — not when prosecutors begin preliminary review, which Lordkipanidze described as informal and lacking sufficient legal weight. He argued that the ICC’s jurisdiction must be “triggered” before a state’s withdrawal becomes effective, and that this requirement was not met in the Philippines’ case. The Philippines formally withdrew from the ICC in 2019 under Duterte’s administration amid growing scrutiny of his controversial drug war. Lordkipanidze emphasized that Article 127 enshrines a state’s “fundamental right” to withdraw from a treaty, warning that an expansive interpretation of the court’s powers risks undermining that right and upsetting the balance between state sovereignty and the ICC’s mandate to end impunity. He also argued that the Pre-Trial Chamber committed an error in law in interpreting Article 127(2), and that the majority’s position could conflict with principles under the Vienna Convention on the Law of Treaties. Lordkipanidze noted that in previous cases, such as Burundi, the ICC retained jurisdiction because judicial authorization for investigation had been secured before withdrawal took effect — a condition he said was absent in the Philippines’ case. On Friday, Malacañang brushed aside the claim of Duterte lawyer Nicholas Kaufman that the Philippine government under President Ferdinand Marcos Jr. was aiding the prosecution instead of assisting the defense. In a statement, Palace Press Officer Claire Castro told Kaufman to concentrate on defending Duterte instead of monitoring Philippine political developments. “He should focus on his defense and legal strategies, not on President Marcos Jr. He is losing track of his case because he keeps monitoring Philippine politics,” Castro said. Kaufman said in an interview with international media the Marcos government was facilitating the case, contrary to its public stance of noncooperation with the ICC. The Philippine government has been “helping the prosecution right from before the time that the former president was surrendered to the court,” he said. Castro said the government respects the Pre-trial Chamber’s unanimous ruling. She said the ruling marked a significant step toward ensuring accountability. “We respect the ruling of ICC that confirms all charges of crimes against humanity against the former President Duterte. Justice is what needs to be achieved in these cases,” she said. Duterte faces charges of crimes against humanity, including murder and attempted murder, allegedly committed when he launched the antidrug war during his time as Davao City mayor and later as president. Government records showed that around 6,200 drug suspects were killed, while human rights organizations claim the number could reach 30,000. Duterte was arrested in Manila in March 2025 and flown hours later to The Hague, Netherlands, where he was placed under ICC detention. A group of Filipinos in the Netherlands welcomed the ICC decision to confirm the charges against Duterte. In a statement sent to The Manila Times late on Thursday, the Panagutin Netherlands Network said confirming the charges is a victory for the families of drug war victims. “For years, they carried immense grief and endured fear of retaliation, yet they continued to demand accountability even when giving up was the easier path. Their perseverance and the determination of the entire Filipino people brought this case to where it is today,” the group said. The group hopes to see more officials, particularly Senators Ronald Dela Rosa and Bong Go, and former police chief Oscar Albayalde, put on trial. “And while we celebrate this win today, we know this is just the beginning of a longer battle for accountability ahead. Those who planned, enabled and carried out the bloodshed must also be investigated and held to account,” Panagutin said. Former senator Antonio Trillanes IV, who filed one of the cases to the ICC, also welcomed the ruling. “I am happy for the thousands of families of the victims of EJKs (extrajudicial killings). This is another big step toward achieving the justice we have long hoped for. The next thing we will wait for is the start of Duterte’s trial,” he wrote late on Thursday. Mamamayang Liberal Rep. Leila de Lima, who was detained in Camp Crame for almost the duration of the Duterte administration, said the former president should have been charged a long time ago. “The charges against Duterte have finally been confirmed for crimes for which he should have been punished a long time ago. The wheels of justice should not have taken this long to turn. But we take what we are dealt with for the sake of the rule of law,” de Lima wrote on Thursday. “This is still a great day for the fighters against impunity and state-sponsored violence. This is also a victory for the families of the victims — for those left behind who have long been seeking justice. Today we celebrate even as we grieve for those we lost to Duterte’s madness,” she said.
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