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Abstract

The Rodrigo Duterte case raises complex questions concerning the interpretation of Article 127 of the Rome Statute (RS), particularly regarding its statutory limits relating to the one-year window governing the effects of withdrawal, as well as the interpretation of the procedural identity of the preliminary examination. This paper is divided into two parts: the first briefly outlines the procedural history of the war on drugs case from 2016 to 2024; the second analyses the dissenting opinion concerning the interpretation of Article 127 RS and explores the key developments from 2025 to 2026, focusing on the main issues raised by the defense challenge to jurisdiction, culminating in the Appeals Chamber’s decision of 22 April 2026. What emerges is that the majority of the judges adopted a broader interpretation of the nature of the preliminary examination, moving beyond its traditional character as an internal prosecutorial assessment and recognizing it as a mechanism capable of preserving ICC jurisdiction beyond the temporal limits established by the Rome Statute for the withdrawal of a State Party. This interpretation raises fundamental questions as to whether Article 127 RS protects a meaningful right of withdrawal or instead reflects a judicial interpretation that has transformed withdrawal into a largely symbolic act, given the relative ease with which a preliminary examination may be opened by the Prosecutor without judicial control, thereby potentially circumventing the statutory one-year limit and eroding a State’s effective right to withdraw.

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