By Neri Javier Colmenares[1]
Chapter on “Withdrawal and Jurisdiction”
The International Criminal Court (ICC) proceedings in the case of Crimes Against Humanity against former Pres. Rodrigo Duterte (The Situation in the Philippines) have recently been the subject of a challenge to the jurisdiction of the Court by Pres. Duterte. Pres. Duterte claims that the Court has lost jurisdiction when the Office of the Prosecutor was only authorized to conduct an investigation on the Situation in the Philippines in 2021 subsequent to the effectivity of the Philippine withdrawal as a state party from the Rome Statute of the ICC on March 17, 2019.
The prosecution and the victims argue that the Court retains jurisdiction under Article 127 of the Rome Statute which provides that “[A State Party’s] withdrawal shall not xxx prejudice in any way the continued consideration of any matter which was already under consideration by the Court prior to the date on which the withdrawal became effective”, considering that the OTP was already conducting Preliminary Examination of the case in 2018 before the withdrawal became effective in 2019.
Pres. Duterte argues that Article 127 of the Rome Statute is not applicable as the preliminary examination conducted by the Office of the Prosecutor (OTP) was an internal process within the OTP and was not a “matter” under “consideration” by the Court referred to under Article 127—practically arguing that the ICC lost jurisdiction over the case after March 17, 2019.
The Pre-Trial Chamber rejected the challenge, ruling that “The jurisdictional regime set out in Part 2 of the Statute continues to apply to this case as if the Philippines were still a Party to the Statute, so as to ensure that, pursuant to article 127(2) of the Statute, the withdrawal of the Philippines from the Statute ‘shall not […] prejudice in any way the continued consideration of any matter which was already under consideration by the Court prior to the date on which the withdrawal became effective.’
The challenge is currently pending before the ICC Appeals Chamber.
This paper argues that not only is the jurisdiction of the ICC in the Duterte case valid under Article 127 of the Rome Statute, as ruled by the Pre-Trial Chamber, but also valid as a case of forum prorogatum, or acceptance of jurisdiction by conduct, a form of ‘subsequent practice’ under international law. A State may accept the jurisdiction of the Court not only by express declaration, but also through successive conduct implying agreement, for example, by filing a written pleading or appearing before the Court. In such cases, the Court acquires jurisdiction and may proceed to adjudicate the dispute (forum prorogatum).[2]
Forum Prorogatum was discussed by Judge Elihu Lauterpacht in his Separate Opinion in the International Court of Justice (ICJ) case of Bosnia and Herzegovina vs. Yugoslavia (Serbia and Montenegro), to wit:
“The Court can only act in a case if the parties, both applicant and respondent, have conferred jurisdiction upon it by some voluntary act of consent. This can be given in various forms: a treaty undertaking to that effect; a contracting-in to the compulsory jurisdiction of the Court under the so-called “optional clause” (Article 36 (2) of its Statute); or an acceptance of jurisdiction by a respondent through its conduct following upon a unilateral commencement of proceedings by an applicant – a method known as forum prorogatum.”
In the case of Djibouti vs. France (Case Concerning Certain Questions of Mutual Assistance on Criminal Matters), the ICJ declared that the consent under forum prorogatum prescribes no specific form (e.g. a letter) and can be deduced from a certain conduct of a party as to imply consent to jurisdiction:
“The jurisdiction of the Court is based on the consent of States, under the conditions expressed therein. However, neither the Statute of the Court nor its Rules require that the consent of the parties which thus confers jurisdiction on the Court be expressed in any particular form (Corfu Channel (United Kingdom v. Albania), Preliminary Objection, Judgment, 1948, I.C.J. Reports 1947-1948, p. 27).
The Court has also interpreted Article 36, paragraph 1, of the Statute as enabling consent to be deduced from certain acts, thus accepting the possibility of forum prorogatum. This modality is applied when Respondent State has, through its conduct before the Court or in relation to the applicant party, acted in such a way as to have consented to the jurisdiction of the Court.”
This paper posits that forum prorogatum was triggered when the Philippines, citing Article 17 of the Rome Statute on complementarity, challenged the order of the Pre-Trial Chamber authorizing the Prosecutor to conduct investigation through a Philippine official communication to the ICC dated November 10, 2021 after the effectivity of the Philippine withdrawal.
The letter informed the International Criminal Court that the Philippines ‘is investigating or has investigated’ alleged crimes against humanity during the ‘war on drugs’ launched by then President Duterte. It asked that the investigation, previously authorized by the Court, be deferred citing Article 18 (2) of the Rome Statute. At the time the communication was lodged in 2021, the Philippines was no longer a state party to the Rome Statute but it did not oppose the investigation of the Prosecutor on the ground of jurisdiction under Article 12, but only requested its deferral in fulfillment of the complementarity provisions in Article 17 and 18 of the Rome Statute.
The acceptance of jurisdiction was clear when the Philippine communication was actually addressed to the Court itself, not just to the Prosecutor, and cited the Rome Statute to ground its request for remedy from the Court to wit:
“The Philippine Government hereby informs the International Criminal Court (“the Court”) that it is investigating or has investigated its nationals or others within its jurisdiction with respect to the alleged crimes against humanity of murder under Article 7(1)(a) of the Statute “committed throughout the Philippines between 1 July 2016 and 16 March 2019 in the context of the so-called ‘war on drugs’ campaign, as well as in the Davao area between 1 November 2011 and 30 June 2016.”
On this basis, pursuant to Article 18(2) of the Statute, the Philippine Government hereby requests that the Prosecutor defer to the Philippine Government’s investigations and proceedings. In accordance with the principle of complementarity under which the Court operates, the Philippine Government has the first responsibility and right to prosecute international crimes. The Court may only exercise jurisdiction where national legal systems fail to do so, which is certainly not the case in the Philippines. As will be demonstrated below, the domestic institutions in the Philippines are fully functional and more than adequate to address the issues and concerns raised in the Notification.
xxx
The Embassy of the Republic of the Philippines in The Hague avails itself of
this opportunity to renew to the Court the assurances of its highest consideration.”
The fact that the Philippines admitted that it has the ‘first responsibility’ to prosecute international crimes, necessarily conveys that the Court (and the prosecutor) has jurisdiction to pursue the investigation should the Philippines fail in that responsibility.
The Philippines founded its request for deferral under Article 18 (2) of the Rome Statute which provides that:
“xxx a State may inform the Court that it is investigating or has investigated its nationals or others within its jurisdiction with respect to criminal acts which may constitute crimes referred to in article 5 xxx. At the request of that State, the Prosecutor shall defer to the State’s investigation of those persons unless the Pre-Trial Chamber, on the application of the Prosecutor, decides to authorize the investigation”.
The Philippine request for the ICC to defer the investigation, therefore, carries with it the admission that the Court has jurisdiction to grant the remedy or a provisional measure, even if the Philippines did not expressly mention the word ‘jurisdiction’. In the case of Bosnia and Herzegovina vs. Yugoslavia, the letter of Yugoslavia proposing and requesting the ICJ to order certain measures is a recognition that the ICJ has jurisdiction over the case, as explained by Lauterpacht:
‘The Court is bound to ask itself, what could be the jurisdictional basis for such proposals by the Respondent? The Respondent did not, in its letter of 1 April 1993, make any reference to the question of jurisdiction. Yet, if the proposals were seriously meant, they can only have been put forward on the basis of some supposed ground of jurisdiction.’
The Philippines only resorted to challenging the jurisdiction of the ICC after 2023 when it failed to convince the prosecutor and the Court that the case is inadmissible under the complementarity provisions in Article 17. However, should a non-state party or a state from which acceptance of jurisdiction is required be the subject of a case in the ICC, Article 19 of the Rome Statute provides that the same ‘shall make a challenge at the earliest opportunity’. The Philippines did not challenge the Court’s jurisdiction at the earliest opportunity. Asking the International Criminal Court in 2021 to declare a case “inadmissible” on the ground of complementarity, is an admission by the Philippines that the Court continues to have the jurisdiction to decide on the issue even if the Philippines is no longer a state party. The Philippines and Pres. Duterte cannot ask the Court to decide on the issue of admissibility if they believe the Court has no jurisdiction to begin with.
Had the Court granted the Philippine assertion that the case is inadmissible, that would certainly be detrimental, not only to the case of the Prosecutor, but also the victims’ who have long searched for accountability for the death of their loved ones. The investigation was in fact deferred for nearly two years. When the Philippines attempted to have the case declared inadmissible, the victims’ case was already subjected to jeopardy should the case be dismissed. Having lost in that attempt, Pres. Duterte cannot now subject the case of the victims to another jeopardy by questioning the Court’s jurisdiction. To allow this is to even violate the principles of equity or fairness and unjustly load the dice in favor of Pres. Duterte and against the victims.
Even Philippine jurisprudence recognize this conduct, not only as an acceptance of jurisdiction, but also an assault on public policy and fairness in the landmark case of Tijam vs. Sibonghanoy where the Supreme Court declared:
It has been held that a party cannot invoke the jurisdiction of a court to secure affirmative relief against his opponent and, after obtaining or failing to obtain such relief, repudiate or question that same jurisdiction (Dean vs. Dean, 136 Or. 694, 86 A.L.R. 79). xxx
Furthermore, it has also been held that after voluntarily submitting a cause and encountering an adverse decision on the merits, it is too late for the loser to question the jurisdiction or power of the court (Pease vs. Rathbun-Jones etc., 243 U.S. 273, 61 L. Ed. 715, 37 S. Ct. 283; St. Louis etc. vs. McBride, 141 U.S. 127, 35 L. Ed. 659). And in Littleton vs. Burgess, 16 Wyo. 58, the Court said that it is not right for a party who has affirmed and invoked the jurisdiction of a court in a particular matter to secure an affirmative relief, to afterwards deny that same jurisdiction to escape a penalty.
The fact that the Philippines and Pres. Duterte, who was still the Philippine President at the time the communication was transmitted in 2021, asked the Court to defer investigation is a recognition of the Court’s jurisdiction—after all, the Court has no power to order the deferral of the investigation on the Situation in the Philippines if it did not have jurisdiction in the first place. Additionally, by citing Article 18 (2) which provides that “At the request of that State, the Prosecutor shall defer to the State’s investigation of those persons unless the Pre-Trial Chamber, on the application of the Prosecutor, decides to authorize the investigation”, the Philippines admit that even if the prosecutor initially defers the investigation, the Pre-Trial Chamber retains the jurisdiction to lift the deferral.
Having failed in their attempt to question the admissibility of the case under Article 17 of the Rome Statute, Pres. Duterte cannot now revert to challenging its jurisdiction under Article 12 of the Rome Statute.
This paper asserts that the ICC has jurisdiction over the case of crimes against humanity against Pres. Duterte in the Situation in the Philippines under Article 127 of the Rome Statute. Assuming that the claim of Pres. Duterte as to the inapplicability of Article 127 is correct, the ICC still retains jurisdiction since the Philippines and Pres. Duterte by their conduct, accepted the jurisdiction of the ICC, when it pleaded before the Prosecutor and the Court to defer its investigation on the ground of complementarity as required by Article 17 of the Rome Statute citing Article 18 as the basis of its right to move for deferral. Considering that the Court has jurisdiction over the case, the ICC can rightly order the conduct of the trial should the Pre-Trial Chamber confirm the charges.
[1] Neri Javier Colmenares is a human rights lawyer and lectures in the MCLE on, among others, the Rome Statute of the International Criminal Court. He has been an advocate for the ICC since 1999 and drafted a Legal Memorandum for then Pres. Joseph Estrada on the need for the Philippines to sign the Rome Statute before December 31, 2000. He was granted the first Human Rights Scholarship by the University of Melbourne in 2001 where he conducted research on the ICC and the domestic implementation of the Rome Statute. He was among the legislators who voted to pass RA 9851 in 2009 implementing the Rome Statute of the ICC in the Philippines. He was also one of the authors of the Philippine Anti-Torture Act and the Anti-Enforced Disappearance Law. He helped draft the Communication filed in the ICC on August 28, 2018 for the families of EJK victims who charged Pres. Rodrigo Duterte with Crimes Against Humanity for the killings in Pres. Duterte’s war on drugs. He was appointed an Associate of the Asian Law Centre of the University of Melbourne in 2003 and was conferred Doctor of Laws (Honoris Causa) by the university in 2025.
[2] Handbook on Accepting Jurisdiction of the International Court of Justice published by the International Court of Justice; chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/https://legal.un.org/avl/pdf/rs/other_resources/Manual%20sobre%20la%20aceptacion%20jurisdiccion%20CIJ-ingles.pdf#:~:text=The%20International%20Court%20of%20Justice%20is%20the,declaration%20recognising%20the%20jurisdiction%20of%20the%20Court.
