The International Criminal Court's Jurisdiction Over Withdrawn States: Lessons From The Prosecutor V. Rodrigo Roa Duterte And Beyond
Ashni Ilakiya L., Department of Legal Studies, University of Madras
ABSTRACT
The International Criminal Court (ICC) was established to prosecute the perpetrators of the world's most serious crimes genocide, crimes against humanity, war crimes, and crimes of aggression. However, the Court's power is not unlimited. Its jurisdiction is treaty-based, meaning that it can ordinarily act only when the accused's home state has agreed to be bound by the Rome Statute. This raises a critical question: what happens when a state voluntarily withdraws from the Rome Statute while the ICC is already looking into crimes committed within its territory?
The case of The Prosecutor v. Rodrigo Roa Duterte has brought this question to the centre of international legal debate. Former Philippine President Rodrigo Duterte is accused of orchestrating a brutal "war on drugs" that allegedly resulted in thousands of extrajudicial killings between 2011 and 2019. Although the Philippines withdrew from the Rome Statute in 2018, the ICC asserted and in April 2026 firmly confirmed at the appeals level that it retains jurisdiction over crimes committed while the Philippines was still a State Party. Duterte was arrested in March 2025 and, following a confirmation of charges hearing in February 2026, was committed to trial in April 2026.
This article traces the legal foundations of the ICC's jurisdiction, explains the Duterte case in detail, examines how Article 127 of the Rome Statute operates in practice, and places these issues in a broader comparative context by looking at situations in Burundi, Africa's mass withdrawals, and the Lubanga and Bemba precedents. The article argues that the ICC's interpretation of its "legacy jurisdiction" the power to continue proceedings even after a state's withdrawal is legally sound, essential for combating impunity, and consistent with the object and purpose of the Rome Statute. It also explores the challenges such an approach poses for state sovereignty and the Court's legitimacy.
