International legal experts say ICC has no jurisdiction

Last of three parts

FOR nearly three decades now, the International Criminal Court (ICC) has wrapped itself in the lofty rhetoric of universal justice, accountability and humanity’s supposedly highest moral aspirations.

Yet the arrest and coming trial of former president Rodrigo Duterte, and now the looming threats against Sen. Ronald “Bato” Dela Rosa, expose a disturbing reality increasingly acknowledged not only by critics of the court but by respected international law scholars themselves: The ICC may be stretching its powers beyond what its founding treaty actually permits.

The big question is straightforward: Can the ICC still exercise criminal jurisdiction over a country that has already withdrawn from the Rome Statute? The ICC says “yes.” But many legal scholars — and even dissenting ICC judges — argue otherwise, that that notion is even absurd and trampling on Philippine sovereignty.

The Philippines withdrew from the ICC in 2019. The Duterte government formally notified the United Nations that the country no longer consented to ICC jurisdiction. Yet years later, the ICC insists it still possesses authority to investigate, indict, arrest and detain Filipinos.

This extraordinary assertion of power rests on the ICC’s founding Rome Statute Article 127(2), which states that withdrawal “shall not affect any cooperation with the Court” regarding investigations and proceedings already under way before withdrawal became effective. The ICC argues that since the alleged crimes occurred while the Philippines was still a member, jurisdiction survives withdrawal. However, that interpretation has come under growing scholarly attack.

Critiques

One of the most important critiques came from Yudan Tan — whose PhD research at Leiden University was on the ICC — in the highly respected Journal of International Criminal Justice. Tan examined the Philippine situation and raised a devastating point often ignored in media reporting.

Before the Philippines formally withdrew in 2019, the ICC had not yet begun a formal judicial investigation. What existed then was merely a “preliminary examination” — essentially a[n] information-gathering process to determine whether an investigation should even begin. The formal investigation itself was authorized only in 2021, two years after the Philippines had already left the Rome Statute.

This distinction is crucial because a preliminary examination is not yet the exercise of formal judicial jurisdiction, but merely a screening process by prosecutors. According to this interpretation, Article 127’s protection for existing “investigations and proceedings” should not apply: The ICC does not have lawful jurisdiction over Duterte and Dela Rosa at all. An analogy would be a “preliminary investigation” undertaken by the police. That is far from the start of filing of charges against a suspect.

Similarly, international criminal lawyer Michael Karnavas argues that the key issue in the ICC case against Senator Dela Rosa is not simply whether it claims jurisdiction, but whether Philippine courts — especially the Supreme Court of the Philippines — must first determine if such jurisdiction may still lawfully be exercised after the Philippines withdrew from the Rome Statute.

Karnavas also debunks the ICC’s interpretation of Article 127, the withdrawal clause. The ICC held that because the prosecutor had already begun a “preliminary examination” before Philippine withdrawal became effective in 2019, the court retained jurisdiction over alleged crimes committed during membership.

Stretches

Karnavas argues this stretches the treaty beyond its intended meaning. He stresses that the Rome Statute clearly distinguishes between a mere preliminary examination and a formally authorized investigation “approved by judges.” In his view, only the latter should preserve ICC jurisdiction after withdrawal.

He warns that by treating a preliminary examination as enough to indefinitely preserve jurisdiction, the ICC effectively expanded its own powers and weakened the meaning of sovereign withdrawal.

These are not arguments coming from social media vloggers or political propagandists but made by experts on the ICC, written in peer-reviewed journals.

Another scholar, Nottingham University professor Javier Sebastian Eskuriatza in the Cambridge Asian Journal of International Law, similarly questioned the ICC’s claim that the court may continue exercising authority long after a state has withdrawn its consent.

Eskuriatza warns that the ICC’s theory risks undermining the very foundation of international law itself. International law, after all, rests fundamentally on state consent. Unlike domestic governments, international tribunals possess no inherent sovereignty. Their powers exist only because states voluntarily grant those powers through treaties. Once consent is withdrawn, on what basis does authority continue indefinitely? That is the question ICC supporters prefer not to confront directly.

Indeed, even ICC judges themselves have raised alarms over Duterte’s prosecution. Dissenting judges warned that if mere “preliminary examinations” are enough to preserve jurisdiction forever, then Article 127 becomes meaningless. Under such logic, the ICC prosecutor could simply open a preliminary examination before a state withdraws and thereby preserve jurisdiction indefinitely — perhaps for decades.

That interpretation effectively converts a supposedly voluntary treaty system into a quasi-permanent supranational authority from which states cannot meaningfully escape. One dissenting opinion warned precisely against this kind of jurisdictional overreach, emphasizing that the Rome Statute was never intended to create an institution with permanently self-extending powers.

Suspicious

This is why many countries have grown deeply suspicious of the ICC. Since its establishment in 2002, the ICC increasingly acquired the reputation of targeting weaker states while powerful countries remained largely untouched.

Eskuriatza points out that in any legal system worthy of legitimacy, jurisdiction itself must remain strictly bound by law. Otherwise, prosecutors become sovereign unto themselves. Even scholars sympathetic to international criminal justice have warned that legality binds the court no less than it binds the accused.

This is where the Duterte and Dela Rosa cases become historically important. The issue is not just whether Duterte’s antidrug campaign was harsh or excessive. The deeper question is why our elites have agreed for our sovereignty to be trampled. Aren’t we ashamed of that? Marcos has put us in the category of sub-Saharan African countries, barely civilized countries where warlords committed crimes against their own people.

Are we was as weak as those countries that we have capitulated to a jurisdictional imperialist organization, the officials of which are not elected and which doesn’t even have a military or a police force, yet claims authority to seize custody of a former head of state and elected officials years after we have withdrawn from its jurisdiction?

In the propaganda-driven hysteria against Duterte, forgotten is the shameless surrender by President Ferdinand Marcos Jr. of a former president to a foreign institution, even before the prosecutors acquired evidence and testimonies, to be jailed over many years whether he is found guilty or not. The Philippines stands as the only country to have done that, a testament both to this administration’s wickedness combined with our people’s weak sense of nationalism that such violation of our sovereignty was unimportant.

Dictator

The dictator Marcos allowed his archenemy Ninoy Aquino — convicted to face a firing squad by a court-martial — to be exiled and live a comfortable middle-class life in Massachusetts, rather than be incarcerated in a small army stockade in Fort Bonifacio. Cory Aquino, who believed Marcos ordered the killing of her husband, had the decency to let the dictator live the rest of his life in comfort in Hawaii, rather jailing him and his family in the country to stand trial for his many crimes. There’s not a drop of decency or benevolence in this president’s blood.

A Supreme Court ruling allowing the ICC to try a former Philippine president would go down in our history as our highest tribunal’s capitulation to a neocolonial institution.

That really won’t be so surprising.

It would be the second time another Marcos gets what he wants from the Supreme Court to prolong his rule. The first was when his father got it to rule as authentic the 1973 “constitution” he manufactured and that his martial law was legitimate.

As that allowed the elder Marcos to extend his rule from the mandated 1973 to 1986, the Supreme Court will prolong the Jr.’s rule past the mandated 2028 by creating new factors that could lead to Sara Duterte’s disqualification to run.

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International legal experts say ICC has no jurisdiction
Source: Breaking News PH