The International Criminal Court’s (ICC) jurisdiction over former President Rodrigo Duterte remains unresolved and former Supreme Court Chief Justice Artemio Panganiban believes there is a window for the early dismissal of the crimes against humanity case against him.

Panganiban clarified, however, that his view is rooted on domestic legal principles that may have little bearing on European judicial norms.

The question is whether the ICC retains legitimate authority over Duterte given the effectivity of the Philippines’ withdrawal from the Rome Statute in 2019 and the contentious two-year prescriptive period.

Panganiban’s opinion is in congruence with that of the two ICC judges who voted in a 2023 decision of Pre-Trial Chamber I against continuing the probe on Duterte’s war on drugs.

The ICC then had rejected the Philippine Solicitor General’s appeal to stop the investigation and two of the five ICC judges — Marc Perrin de Brichambaut of France and Judge Gocha Lordkipanidze of Georgia — opined that the tribunal could not exercise jurisdiction over the Philippines because its withdrawal from the Rome Statute took effect in 2019 before the Prosecutor requested authorization to initiate an investigation.

Panganiban agrees that under the Rome Statute the ICC Office of the Chief Prosecutor has a two-year window following a state’s withdrawal within which to initiate a preliminary examination and seek Pre-Trial Chamber (PTC) approval for an official investigation.

The Philippines’ withdrawal took effect on 17 March 2019, meaning the deadline for the action would be 17 March 2021. Yet, then Chief Prosecutor Fatou Bensouda only sought PTC authorization on 24 May 2021, or two months too late, and received approval on 15 September 2021, well beyond the cutoff.

The timeline, Panganiban contends, should have barred the ICC’s actions since its jurisdiction had lapsed.

Panganiban said that if the ICC Prosecutor’s preliminary examination alone should be considered, as it fell within the prescriptive period, why require PTC authorization at all?

Panganiban’s concession to European judicial norms, where prosecutors are often integrated into the judicial system, introduces a critical legal complication.

If the ICC broadens its view, Bensouda’s 2018 examination, started while the Philippines was still a member state, could be deemed part of the judicial process, satisfying the two-year limit. It is an ambiguity in the Rome Statute that needs resolution.

Panganiban said the ICC had not resolved the prescriptive period issue since the majority ruling allowing the probe to proceed did not engage it, citing the issue’s exclusion from the Philippines’ appeal.

Other legal experts considered the silence on the jurisdiction aspect a convenient sidestep, preserving ICC jurisdiction without confronting the minority’s potent critique.

Thus, a successful prescriptive challenge could halt the case outright, leveraging what Panganiban sees as a clear procedural breach.

The ICC made clear its inclination to defer jurisdiction questions until after a trial on the merits and to not let technicalities derail procedures.

The ICC minority’s position in the pre-trial, which Panganiban favored, demanded strict adherence to withdrawal timelines, potentially deterring future court interventions in withdrawing states.

Based on Panganiban’s dichotomy of the ICC process, Duterte has a lifeline hanging on a narrow legal thread, which is to challenge the Tribunal to balance rigor with fairness in considering the jurisdiction question.

The unresolved issue of the prescriptive period, as Panganiban analyzed it, offers Duterte’s lawyer a clear window for an acquittal even before the trial could begin.