A Not So Clean Break: ICC Jurisdiction after Withdrawal in The Prosecutor v. Duterte

[Sabrina Ochoa is a Fellow at the Institute for Current World Affairs (ICWA), a graduate of Harvard Law School, and a licensed member of the New York bar]

In April 2026, the Appeals Chamber of the International Criminal Court released its judgment on the challenge to the Court’s jurisdiction in the case of The Prosecutor v. Rodrigo Roa Duterte in the Situation in the Republic of the Philippines. While this case is historic as the ICC’s first prosecution of a former Asian head of state for alleged crimes against humanity during the Philippines’ “war on drugs,” the Court’s interpretation of the Rome Statute’s withdrawal provisions, and their relationship to the treaty’s purpose of preventing impunity for atrocity crimes, has significant ramifications for the future of international accountability mechanisms as a whole.

The ICC has previously dealt with withdrawal by a state party in the Situation in the Republic of Burundi and, most recently, contended with threats of withdrawal by Hungary that were formally cancelled by the Hungarian parliament in late May 2026. In Burundi, the ICC Office of the Prosecutor had already formally requested an investigation before the withdrawal took effect. Thus, the Court concluded that it retained jurisdiction over crimes committed during the time which the State was party to the Statute, and would be able to exercise this jurisdiction over these crimes even after the withdrawal took effect under Article 127.

In the Duterte case, the Appeals Chamber majority upheld the Pre-Trial Chamber’s ruling on jurisdiction, distinguishing the Burundi situation from that of the Philippines, while also answering the open question of the nature of States’ post-withdrawal obligations arising from the relationship between article 127 and article 12. By taking a common sense approach to a contextual reading of the provisions in light of the Statute’s object and purpose, the Court in Duterte balanced the State consent concerns at the heart of the jurisdictional challenge with the existential concerns of the Rome Statute as a multilateral commitment to prevent international crimes.

Previous Withdrawal of Burundi from the ICC

In the unanimous Burundi decision authorizing an investigation, the Court invoked articles 12(1) and (2) in its holding that ratification of the Statute confers an acceptance of jurisdiction by the State Party over all article 5 crimes committed, starting from entry into force until at least one year from notification of withdrawal. Article 12 lists the preconditions to the exercise of jurisdiction: Both conditions situate the existence of jurisdiction in the act of State consent to the treaty, and the concurrent obligations that arise from it.

In Burundi, the state withdrew from the statute in October 2016, with its withdrawal taking effect in October 2017; meanwhile, the Prosecution requested authorization for a propio motu investigation in September 2017 under seal. In determining the legal consequences of the withdrawal on the request for an investigation, the Court distinguished between the Court’s jurisdiction before the withdrawal took effect and Burundi’s obligations under the Statute after, noting that 127(1) provides for a one year period in which a withdrawing state remains a State Party that has accepted the Court’s jurisdiction. Consequently, the Court found that the exercise of jurisdiction—namely the investigation and prosecution of crimes committed when Burundi was a State Party—was not subject to any time limit, in line with the non-applicability of statute of limitations for article 5 crimes (art. 29).

Regarding post-withdrawal obligations, the Court found that article 127(2)’s stipulations aligned with the Vienna Convention on the Law of Treaties (VCLT) 70(1)(b), holding that Burundi retained obligations under the authorization of the investigation that survived its withdrawal because the decision was delivered before Burundi’s withdrawal would take effect. Thus, Burundi’s obligations to cooperate with an investigation would remain in effect for as long as the investigation lasted and carry over into any subsequent proceedings.

While the Burundi Court refrained from establishing the relationship between 127(1) and (2), its decision clarified that article 127 does not otherwise displace the Court’s jurisdictional scheme for the time period in which the State is a party to the Statute. While leaving several questions open as to the application of withdrawal to jurisdiction, the Burundi decision set the stage for the contextual arguments and systemic analysis of the jurisdictional issue in the Duterte case.

The Situation in the Philippines

In June 2021, the ICC Prosecutor had requested authorization of a proprio motu investigation of crimes allegedly committed in the Philippines between November 1, 2011 and March 16, 2019, which the Court granted later that year. While the Philippines was then granted a deferral and suspension of investigations under article 18, the Prosecutor asked to resume investigations in June 2022 following an assessment that bonafide domestic investigations had not occurred.

In July 2023, the Appeals Chamber upheld a Pre-Trial Chamber decision authorizing the Prosecution to resume its investigation, rendered by a narrow 3-2 majority. The Philippines’ challenge to the resumption of investigation rested on the two-year period between the effective withdrawal date (March 17, 2019) and the request for authorization of investigation in 2021. The Philippines contended that the gap between effective withdrawal and authorization was dispositive in determining that the Court did not have jurisdiction and therefore could not authorize an investigation. The Appeals Chamber majority disagreed, considering that the Philippines’ deferral request constituted “implicit acceptance” of the Court’s jurisdiction and that the Pre-Trial Chamber did not decide on jurisdiction explicitly. Because the Philippines did not raise the issue of the withdrawal’s effect on the Court’s jurisdiction before the Pre-Trial Chamber, the Appeals Chamber did not consider it admissible on appeal.

The open questions left by the 2023 Appeals Chamber decision came to a head upon the renewed jurisdictional challenge raised by the Defense in the Duterte case, after Duterte’s arrest in March 2025 and the Pre-Trial Chamber’s affirmation of jurisdiction in October 2025.

The Arguments for Jurisdiction in the Duterte Case

In its arguments favoring the Pre-Trial Chamber’s 2025 decision on jurisdiction, the Prosecution advocated for a holistic reading of the Statute in which articles 12 and 127 cooperate to serve the functioning of the Court. Similar to the Burundi Court’s reasoning, the Prosecution argued that, under 127(2), withdrawal does not discharge obligations arising while the State was a party to the Statute, consistent with VCLT 70(1)(b). In view of the object and purpose of the Statute, 12(2) should not be interpreted to allow a State Party to avoid the Court’s jurisdiction by withdrawing before the exercise of jurisdiction is triggered. The Philippines’ apparent motivation for withdrawing (in response to the opening of a preliminary examination by the Prosecutor) provided an example of the very harm that 127(2) was designed to prevent.

Moreover, the exercise of preliminary examination in the Situation of the Philippines, while short of an investigation, was sufficient to hook the State under 127(2) as a matter under consideration by the Court that conveyed remaining obligations on the Philippines notwithstanding its withdrawal from the Statute.

Defense’s Arguments against Jurisdiction

In its challenge to the Pre-Trial Chamber’s ruling on jurisdiction, the Defense averred that 12(2) establishes preconditions before an investigation is opened, while 127(2) regulates the investigation after withdrawal from the Statute; a plain reading of 12(2), therefore, requires that the State be a Party at the time of authorization of an investigation, without reference to 127(2) as an exception to those conditions.

The Defense further challenged the equivocation of preliminary examination with the initiation of an investigation under 13(c). In its interpretation of 127(2), a “matter” is narrowly defined to exclude preliminary examination, which it argued was not governed by any statutory provisions. Even if preliminary examination were to constitute a “matter under consideration,” the Defense maintained, it would have no bearing on the question of whether the Court could open an investigation post-withdrawal under article 12, as the Defense contested an applicable linkage between 12 and 127.

Finally, the Defense contested the finding that the object and purpose of the Statute permitted the authorization of an investigation post-withdrawal, arguing that the object and purpose of the Statute is served by the one-year period between notification of withdrawal and its effect under 127(1).

Appeals Chamber Analysis

Outlining the relevant legal framework, the Court emphasized its previous jurisprudence requiring that the Statute be interpreted comprehensively and systematically across the “statutory scheme as a whole” and in context rather than in isolation, aligned with VCLT articles 31-33 (para. 45). Additionally, article 21(3) requires interpretation “in a manner consistent with internationally recognized human rights.” (para. 81)

Applying this systemic reading to articles 12, 13, 15, and 127, the Court held that, from the point in time when a State becomes Party to the Statute, jurisdiction “exists” until acceptance is revoked by withdrawal (para. 82); however, the existence of jurisdiction is distinct from the “exercise” of jurisdiction, which must be triggered by the circumstances set out in articles 13 and 15, and requires that the relevant State is a Party per 12(2). (para. 83) Integrating article 127 to address the consequences of withdrawal for jurisdiction, the Court found that a State must be Party to the Statute at the time the Court exercises jurisdiction, and that this preserves jurisdiction by the limits set by 127(2) on withdrawal’s effects. (para. 84)

Explicitly, the Court referred to the Statute’s object and purpose of ending impunity, finding it incompatible to allow a State Party to evade its statutory responsibilities by notifying the Court of withdrawal in response to the Prosecutor’s examination of alleged crimes on its territory or committed by its nationals—as was the case in the Philippines’ withdrawal. (para. 85) The Court characterized the one-year notification period as part of the design to prevent States from withdrawing in response to the Court’s consideration of alleged crimes. (para. 86)

Critically, the Appeals Chamber limited the Court’s jurisdiction, clarifying that States’ sovereignty to withdraw would be ineffective if the ability to exercise jurisdiction was indefinite, finding instead that its current interpretation provided a “clear timeline” within which examinations of alleged crimes must be pursued. (para. 191) The Court distinguished this from the Burundi decision, which it said discussed the “exercise” of jurisdiction as not subject to a time limit (rather than an indefinite “existence” of jurisdiction); further, the circumstances regarding the pre-withdrawal authorization sufficiently distinguished Burundi from Duterte to present a novel question before the Court in this case. (para. 87)

Under this overarching interpretation, the Chamber found that a preliminary examination may qualify as a “matter under consideration” under 127(2), reconciling a broad interpretation of the Stature’s language with its object and purpose that aligned with VCLT 33(4). (para. 121) Under article 15’s  discussion of preliminary examination as a precondition for the Prosecutor to request authorization, the Statute placed clear legal obligations on the Prosecutor irrespective of her discretion during this phase. (para. 127) In the Duterte case, and the Situation in the Philippines more broadly, the Prosecution’s decision to initiate a preliminary examination prior to withdrawal, and the public announcement thereof, conveyed legal obligations and characteristics properly qualifying it as a “matter which was already under consideration by the Court” in 127(2). (para. 133)

The Appeals Chamber majority further rejected the Defense’s distinction between preliminary examination and the opening of an investigation, finding them integrated parts of the entire pre-trial procedure. (para. 144)

Finally, the Court rejected the Defense’s arguments regarding the object and purpose of the Statute and the Pre-Trial Chamber’s interpretation thereof. (para. 196) It found that the one-year withdrawal period did not dictate the solely appropriate timeline for a preliminary examination, which may take longer to further the Statute’s purpose. (para. 191) Relying on the preamble and article 127, the Appeals Chamber affirmed that State Parties commit to punishing international crimes during the period they are Party to the Statute and that it would contravene the object and purpose to enable evasion of that commitment through withdrawal. (para. 194) Rather than a “subjective political critique,” the Appeals Chamber found that connecting the Prosecutor’s preliminary examination with the Philippines’ decision to withdraw was a factual finding that supplemented the Pre-Trial Chamber’s broader treaty interpretation under the relevant legal framework. (para. 195)

Significance of the Appeals Chamber’s Ruling

The Court’s upholding of jurisdiction in this case, and the Situation in the Philippines more broadly, is notable in several respects. By clarifying the role of 127(2) in State Parties’ obligations after withdrawal through consistent reference to the Statute’s object and purpose, the Court gave voice to the practical effects of State withdrawal on impunity for international crimes. Given the similarities, this can be explored by analogy through the consequences after the Burundi situation. Despite the opening of an ICC investigation, Burundi has continued to experience widespread murder, forced disappearances, torture, and arbitrary arrests with near total impunity after its withdrawal, with a UN Commission of Inquiry confirming the persistence of crimes against humanity in the country.

The Chamber’s ruling further has significant implications for similar jurisdictional challenges pending in the Situation in Palestine, which test the boundaries of the Court’s reach over non-State parties. In the context of increasing criticism of the Prosecutor’s decisions to investigate or request arrest warrants in Situations before the Court, the Duterte Appeals Chamber decision disarms 127 as a potential weapon for States to dangle withdrawal as a means to influence the legal assessments of the Prosecutor. Through the Court’s systematic interpretation of 127 in concert with article 15’s legal obligations for preliminary examination and investigation, the Court’s reasoning reinforces the Statute’s intent to insulate and protect the independence of the Prosecutor from international politics.

This decision could be characterized as part of an existential practice in which international criminal tribunals have historically interpreted their enacting statutes to broadly exercise jurisdiction over international crimes and thereby prevent impunity. For example, the ICTY Appeals Chamber in Tadić denied a challenge against its jurisdiction based on a “narrow interpretation of the concept of jurisdiction” that “falls foul of a modern vision of the administration of justice;” the Special Tribunal for Lebanon held similarly in challenges to its jurisdiction.

At the same time, the Court’s interpretation of treaty provisions linking jurisdiction and State obligations centered on the fact that:

“a State’s decision to become a State Party, as well as to withdraw from the Statute, must be considered to have been taken in full cognisance”

of 127(2)’s conditions on withdrawal. This puts the loci of action and obligation on the State, acknowledging and prioritizing its acts of consent, in a manner that provides a counter to contemporary criticisms of the Court’s reach as undermining sovereignty. Despite not being a binding source of law for the Court (art. 21), it also bears noting that the Philippine Supreme Court in Pangilinan v. Cayetano (2021) domestically interpreted the Statute to affirm the Philippines’ residual obligation to accept ICC jurisdiction over alleged crimes committed in the relevant time period. In this case, the circumstances of the Philippines’ withdrawal exemplify the conditions anticipated by the Statute’s design; to conclude otherwise would, as described by the Court in Abd-al-Rahman, run “counter to fundamental and critical features of the system governing the exercise of the Court’s jurisdiction.”

In conclusion, the Appeals Chamber decision on jurisdiction in the Duterte case sends a signal to State Parties that article 127 is not an escape hatch from the Court’s adjudication of international crimes. For the victims of the alleged crimes in the Situation in the Philippines watching as the Duterte case proceeds to trial, and for the international accountability system as a whole, this decision bolsters hope that the promise of the Rome Statute may survive in a time of unprecedented attack.