The legal dispute surrounding the ICC proceedings against Rodrigo Duterte extends well beyond the conduct of a single former head of state. It presents a structural question about the nature of international criminal jurisdiction in a treaty system founded upon sovereign consent. The issue is whether a consent-based international tribunal may continue to exercise adjudicative authority after that consent has been withdrawn where the legal basis for such authority is, at the very least, genuinely contestable. This piece argues that preliminary examinations, as internal prosecutorial processes, cannot by themselves preserve ICC jurisdiction after withdrawal under Article 127(2) of the Rome Statute, and that the Duterte case illustrates the risks of collapsing consent into prosecutorial discretion. This is not a claim that accountability is unimportant, nor a plea for impunity. It is a claim that legality binds the Court as much as it binds the accused. If the ICC is to retain legitimacy, it must show not only moral seriousness but strict discipline about the boundaries of its own jurisdiction.
Morris Kiwinda Mbondenyi (Sun,) studied this question.
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