The International Criminal Court (ICC) Appeals Chamber on Wednesday ruled with finality that it has jurisdiction over the crimes against humanity case against former president Rodrigo Duterte, rejecting the defense’s longstanding objection to the court’s authority.

The majority decision (4-1) was handed down in open court, presided by Judge Luz del Carmen Ibáñez Carranza, at 11 a.m. in The Hague (5 p.m. in Manila).

Duterte was not present in the courtroom after waiving his attendance. Only his lawyers, Nicholas Kaufman and Dov Jacobs, were present on his behalf.

Wednesday’s ruling resolved a petition by the defense challenging the October decision of the Pre-Trial Chamber I, which upheld the tribunal’s jurisdiction to investigate the alleged extrajudicial killings tied to Duterte’s drug war. 

The five-member Appeals Chamber affirmed the impugned decision, junking all four grounds raised by the defense in attempting to reverse the verdict. 

The defense accused the PTC-I of committing an error in finding that the opening of a preliminary examination into Duterte’s drug war is sufficient enough for the court to exercise jurisdiction over alleged crimes committed even after the Philippines’ withdrawal from the Rome Statute in 2019.

“The Appeals Chamber finds no error in the Pre-Trial Chamber's interpretation of Article 12.2, as requiring that the relevant state be party to the statute at the time the court exercises its jurisdiction,” Carranza said.

In addition, the Appeals Chamber ruled that the “state's right to withdraw from the statute would not be effective if the court were able to exercise jurisdiction indefinitely despite the state no longer being a party.” 

“From this point in time, jurisdiction exists with respect to the relevant state until the acceptance is revoked by a state party's withdrawal from the statute. However, according to the statutory framework, the existence of jurisdiction needs to be distinguished from the exercise of jurisdiction,” she added.

Preliminary probe vs motu proprio

The International Criminal Court opened a preliminary examination into alleged extrajudicial killings linked to the anti-drug campaign in February 2018, nearly two years after Rodrigo Duterte assumed the presidency.

A month later, the Philippines—acting on Duterte’s directive—withdrew from the Rome Statute. Under ICC rules, however, such a withdrawal takes effect only after one year from formal notification, a safeguard meant to prevent states from exiting immediately upon facing scrutiny over serious crimes.

The court has also held that withdrawal does not automatically remove its jurisdiction over cases already under consideration before the withdrawal’s effectivity.

The defense has consistently challenged the ICC’s authority, noting that a full investigation began only in September 2021, more than two years after the Philippines formally exited the Rome Statute.

In an earlier decision, Pre-Trial Chamber I maintained that the court retains jurisdiction over alleged crimes committed between 1 November 2011 and 16 March 2019.

Defense lawyers argued that a preliminary examination is legally distinct from the formal opening of an investigation, emphasizing that different ICC bodies govern each stage.

The International Criminal Court Appeals Chamber rejected that argument, ruling that there is no strict division between the two phases, which together form a single legal process regardless of which court organ conducts them.

It found no error in the Pre-Trial Chamber’s conclusions and dismissed the appeal in full, rendering the defense’s request for Duterte’s immediate and unconditional release moot.

What could have happened?

If the Appeals Chamber had ruled in favor of the defense, the 81-year-old Duterte could have finally go home after over a year of being detained in the ICC custody.

The warrants for his co-perpetrators, such as Senator Bato de la Rosa, would also be deemed ineffective in that case.

Duterte is charged with three counts of murder for the killings of 78 individuals, including six children, allegedly suspected of drug dealings from 2013 to 2018, spanning his tenure as Davao mayor and as president. 

Although rights groups estimated that the actual death toll during his presidency alone could be as high as 30,000, mostly from poor communities.

Aside from the jurisdiction issue, the defense has made several efforts to halt the pre-trial proceedings and secure Duterte's release from ICC detention. This includes Duterte’s alleged debilitating health, making him unfit to stand trial, and their botched attempt at an interim release.

Next week, the ICC will render a separate ruling on whether the charges against Duterte will be confirmed for a full trial.

Senator Imee Marcos, a known Duterte ally, stressed that the latest decision “disregard[ed]” the Philippines’ withdrawal from the Statute and eroded the fundamental principle that domestic institutions must be given primacy where they are able and willing to act.

“At its core, this development raises serious concerns about the inviolate respect for national sovereignty and the proper limits of international jurisdiction. Justice must be pursued in a manner consistent with our Constitution, our laws, and the integrity of our own judicial processes,” she lamented.