Muster judicial courage

The prolonged debate over a contentious legal question may explain why the Supreme Court has yet to rule on several cases involving the International Criminal Court’s (ICC) jurisdiction over the Philippines, nearly two years after the petitions were filed.

Pending before the tribunal are the main petitions challenging the ICC’s exercise of jurisdiction over the country and the enforcement of its arrest warrant against Senator Ronald “Bato” dela Rosa. The opposition party PDPLaban pressed the Supreme Court over the weekend to break the impasse and act on the cases.

The petitions hinge on the argument that the ICC lost jurisdiction over the Philippines after the country withdrew from the Rome Statute in 2019.

The lead case was filed on 11 March 2025 by former President Rodrigo Duterte and Dela Rosa. It challenged Duterte’s arrest and the government’s cooperation with the ICC. The court was later urged to compel the government to produce the alleged warrant against Dela Rosa, and a preliminary injunction was sought.

The court consolidated separate habeas corpus petitions filed by Duterte’s children, Veronica Duterte, Sebastian Duterte and Paolo Duterte. The Department of Justice argued they were moot because Duterte is already in ICC custody in the Netherlands, where he faces three counts of crimes against humanity.

The ICC unsealed its warrant against Dela Rosa on 11 May, charging him with crimes against humanity over the Duterte administration’s war on drugs.

On 20 May, the Supreme Court voted 9-5-1 to deny Dela Rosa’s plea for a temporary restraining order or status quo ante order. The majority decision said he failed to show a clear legal right or an urgent need to prevent irreparable injury. It described his claimed threats as “more imagined than real” and noted that no law enforcement agency had been instructed to arrest him.

The court has since clarified that it has not ruled on his main petition or on whether the warrant may be enforced in the country.

What is significant, and what may be causing the SC to weigh the situation carefully, is contained in the dissent of Associate Justice Ramon Paul Hernando, who essentially stated that the ICC has no jurisdiction over Dela Rosa’s case.