"The Rome Statute limits the ICC’s reach to individuals, not states, and retains jurisdiction over pre-withdrawal crimes in the Philippines. -
"Justice Secretary Jesus Crispin Remulla’s statement reflects a nuanced interpretation of the International Criminal Court’s (ICC) jurisdiction, rooted in the legal framework of the Rome Statute and principles of international humanitarian law (IHL). To assess its validity, we must examine the ICC’s foundational legal theory, relevant provisions, procedural mechanisms, and supporting jurisprudence, while considering the Philippines’ specific context following its withdrawal from the Rome Statute in 2019.
ICC Legal Theory:
Complementarity and Individual Responsibility
The ICC operates under the principle of complementarity, meaning it only exercises jurisdiction when national courts are unwilling or unable to prosecute crimes within its mandate—genocide, war crimes, crimes against humanity, and the crime of aggression. This is enshrined in the Rome Statute’s Preamble and Article 1, emphasizing that the ICC complements, rather than supplants, national judicial systems. Crucially, the ICC’s jurisdiction is limited to individuals, not states, as outlined in Article 25, which establishes that "the Court shall have jurisdiction over natural persons." This aligns with Remulla’s assertion that the ICC lacks jurisdiction over the Philippines as a state but retains authority over individuals.
The legal theory underpinning this distinction stems from the ICC’s purpose: to end impunity for perpetrators of the most serious international crimes, irrespective of state sovereignty claims, while respecting national jurisdiction unless it fails. This individual-focused approach contrasts with other international bodies, like the International Court of Justice (ICJ), which adjudicates disputes between states.
Relevant Provisions of the Rome Statute
Several provisions of the Rome Statute clarify the ICC’s jurisdictional scope and support Remulla’s statement:
1. **Article 12: Preconditions to the Exercise of Jurisdiction**
The ICC may exercise jurisdiction over crimes committed on the territory of a State Party or by its nationals (Article 12(2)). The Philippines was a State Party from November 1, 2011, until March 17, 2019, when its withdrawal took effect. Under Article 127(2), withdrawal does not extinguish jurisdiction over crimes committed during the period of membership. Thus, the ICC retains jurisdiction over individuals for alleged crimes in the Philippines between 2011 and March 16, 2019, such as those linked to the "war on drugs" campaign, regardless of the state’s current non-membership.
2. **Article 13: Exercise of Jurisdiction**
The ICC can investigate crimes referred by a State Party, the UN Security Council, or on the Prosecutor’s initiative (proprio motu), provided jurisdictional preconditions are met. The investigation into the Philippines, authorized by Pre-Trial Chamber I on September 15, 2021, falls under this proprio motu authority, targeting individuals like former President Rodrigo Duterte for alleged crimes against humanity.
3. **Article 27: Irrelevance of Official Capacity**
This provision ensures that heads of state or government officials are not immune from prosecution, reinforcing the ICC’s focus on individual accountability rather than state liability.
4. **Article 58: Issuance of Arrest Warrants**
The Pre-Trial Chamber may issue arrest warrants if there are reasonable grounds to believe an individual has committed a crime within the ICC’s jurisdiction. This procedural step does not require state consent, though cooperation is typically sought under Article 86. For non-States Parties like the Philippines post-2019, cooperation is not obligatory, but the ICC can still pursue individuals through other means, such as Interpol.
Procedures and Practical Application
The ICC’s procedure begins with a preliminary examination by the Office of the Prosecutor (OTP), followed by a formal investigation if authorized by the Pre-Trial Chamber. In the Philippines’ case, the OTP initiated a preliminary examination in February 2018, before the withdrawal, focusing on alleged extrajudicial killings. The investigation’s authorization in 2021 confirmed the Court’s jurisdiction over individuals for acts committed while the Philippines was a State Party.
Once jurisdiction is established, the ICC issues arrest warrants and seeks custody of suspects. States Parties are obliged to cooperate under Part 9 of the Rome Statute, but non-States Parties, like the current Philippines, are not. However, the ICC can leverage international mechanisms (e.g., Interpol Red Notices) or rely on other States Parties to apprehend suspects if they leave their home country. This procedural autonomy supports Remulla’s point: the ICC cannot compel the Philippine state to act, but it can target Filipino individuals independently.
Citations and Jurisprudence
ICC jurisprudence further validates this distinction between state and individual jurisdiction:
1. **Prosecutor v. Al Bashir (ICC-02/05-01/09)**
The case against Sudanese President Omar Al Bashir illustrates that the ICC can pursue individuals from non-States Parties when crimes fall within its jurisdiction (via UN Security Council referral under Article 13(b)). While the Philippines’ situation differs (territorial jurisdiction pre-2019), the principle of individual accountability persists, unaffected by state cooperation or membership status.
2. **Situation in the Republic of the Philippines (ICC-01/21)**
The Pre-Trial Chamber’s 2021 authorization explicitly noted that the Philippines’ withdrawal did not bar jurisdiction over crimes committed prior to March 17, 2019. The Chamber emphasized Article 127(2), stating that withdrawal "shall not affect any proceedings already commenced," reinforcing the ICC’s authority over individuals like Duterte, independent of the Philippine state’s current stance.
3. **Prosecutor v. Laurent Gbagbo (ICC-02/11-01/11)**
This case affirmed that the ICC’s jurisdiction over individuals persists even when national authorities assert sovereignty, provided the complementarity threshold (unwillingness or inability) is met. In the Philippines, the ICC has argued that domestic efforts to investigate drug war killings have been inadequate, justifying its intervention.
Application to Remulla’s Statement
Remulla’s claim hinges on two points: the ICC’s lack of jurisdiction over the Philippines as a state and its retained authority over individuals. The Rome Statute and jurisprudence support both:
- **No Jurisdiction Over the State**: As a non-State Party since 2019, the Philippines is not bound by the Rome Statute’s cooperation obligations (Article 86). The ICC cannot prosecute or compel the state itself, aligning with Remulla’s assertion.
- **Jurisdiction Over Individuals**: The ICC’s jurisdiction over crimes committed pre-withdrawal, coupled with its focus on individual responsibility (Article 25), means it can pursue Filipino nationals like Duterte for alleged crimes against humanity, regardless of the state’s status.
Additionally, Remulla’s reference to international humanitarian law ties into Republic Act No. 9851 (Philippine Act on Crimes Against IHL, 2009), which domesticates IHL principles and allows for extradition or surrender of individuals to international courts under Section 17. This domestic law bridges the gap between national sovereignty and international obligations, suggesting the Philippines recognizes individual accountability under customary IHL, even outside the ICC framework.
Critical Examination
While Remulla’s statement is legally sound under the Rome Statute, it sidesteps practical tensions. The Philippine government has historically resisted ICC involvement, arguing sovereignty and a functioning judiciary (e.g., President Marcos Jr.’s 2023 statements). Yet, the ICC’s persistence—evidenced by Duterte’s arrest in March 2025—shows that individual jurisdiction can override state objections when supported by international cooperation (e.g., Interpol). Critics might argue this undermines sovereignty in practice, though legally, the ICC’s mandate remains individual-centric.
Conclusion
Justice Secretary Remulla’s statement is valid under ICC legal theory, provisions, procedures, and jurisprudence. The Rome Statute limits the ICC’s reach to individuals, not states, and retains jurisdiction over pre-withdrawal crimes in the Philippines. Articles 12, 25, 27, and 127, alongside cases like Al Bashir and the Philippines’ own ICC situation, confirm that while the Philippine state is beyond the ICC’s grasp, its citizens are not. This distinction reflects the delicate balance between national sovereignty and global accountability, a balance Remulla accurately captures."
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