The ICC said then that Burundi’s withdrawal would not remove the court’s jurisdiction over them. ICC is a young court with only a handful of cases. Every situation seems to raise new questions, and this is where the Philippines and Duterte became trendsetter of sorts.

In Burundi’s case, the prosecution opened an investigation during the one-year period when its withdrawal from the ICC took effect. Before October 2017, when the withdrawal became finally effective, the prosecution had already started the more rigorous second step of investigation. It was a step that needed the permission of judges.

The case of the Philippines was different in that Duterte’s withdrawal took effect in March 2019, a year after giving notice to the ICC, but investigation commenced only in 2021, or two years after. It was a novel question about withdrawal, and one that involved highly technical arguments about the language of the law, and a moral discussion about the purpose and reason for existence of the ICC. On one side were the human rights lawyers representing or helping victims, who said that if Duterte’s appeal won, it would embolden perpetrators to just simply withdraw their country’s membership once they are threatened with a preliminary examination.

On the other side were Duterte’s lawyers, inspired by two ICC dissenting judges in 2023, who said that the prosecutor has only one year — or the time for the withdrawal to take effect — to open its investigation, in order to preserve jurisdiction. The appeals chamber, voting by a majority of 4 to 1, decided to confirm jurisdiction in Duterte’s case even if the preliminary examination went on for two years more after withdrawal. This, the appeals chamber said, is the balance between exacting accountability and respecting a country’s sovereign rights to withdraw.

By making that decision, the appeals chamber made these authoritative interpretations of the Rome Statute, or the treaty that governs the ICC: When it comes to withdrawals, Article 127 is the proper reference provision. Article 127 says a withdrawal 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.” “Any matter” in Article 127 includes a preliminary examination. Under Article 127, a matter under consideration by the Court also includes those being considered by the prosecutor, such as preliminary examination.

This is crucial because if the appeals chamber interpreted “the Court” to refer to judges only, this would have excluded the preliminary examination process from matters not affected by withdrawal. Preliminary examinations are done only by prosecutors. This interpretation lives up to the “object and purpose” of the Rome Statute which is to “put an end to impunity.” Impactful decision Had Duterte won, the entire case would have been dropped.

More than that, had Duterte won, he would have given perpetrators all around the world a blueprint on how to escape accountability, human rights lawyer Neri Colmenares told victims who needed clarification on what had just happened. “Hindi lang ito issue na mawalan tayo ng malaking angkla sa ating kaso para sa hustisya ng ating kaanak, pati ang lahat ng mamamayan sa buong mundo na nilalapastangan ang kanilang karapatang pantao, apektado. Kasi lahat na lang ng diktador, sasabihin nila sundin natin ang modelo ni Duterte.

Mabuti na lang, mabuti na lang,” Colmenares said on Wednesday, April 22. (This is not just an issue of us losing a basis for our case to find justice for our loved ones, it also affects citizens worldwide whose human rights are being violated. Because then every dictator would say, “Let’s follow the Duterte model.” So this is a good thing, a good thing.) For Nicholas Kaufman, Duterte’s lawyer, the decision was not sufficient because it did not say explicitly just how long a preliminary examination is allowed to continue. “As it would now appear, an investigation may be opened post-withdrawal not just one year down the line, but even twenty years down the line,” Kaufman said in a statement.

For victims’ lawyer Gilbert Andres, what matters is that the decision has sent “a strong message to the international community of states that mere withdrawal from the Rome Statute does not protect responsible state officials from criminal accountability for international crimes.” ‘Great hope’ among victims Mary Ann Domingo, whose son and husband were killed by anti-drug police operatives in 2016, was not always hopeful. She said