WHETHER or not the Philippines rejoins the International Criminal Court (ICC), its jurisdiction to prosecute cases cannot be regained, former Palace spokesman and lawyer Harry Roque Jr. said on Monday.

Roque, an international law expert, asserted that “ICC Jurisdiction once lost, cannot be regained despite a decision to join anew the Court.”

He issued the statement after President Ferdinand Marcos Jr. said the government was studying the country’s possible return to the international tribunal.

“Regardless of our membership status, the Court cannot invoke jurisdiction since it was only in 2022 that the former Prosecutor was allowed to proceed with the preliminary investigation. It was two years after the Philippines officially left the ICC,” the former Palace executive said.

“What the former Prosecutor conducted before 2022 was a preliminary examination, which differs from an authorized preliminary investigation. She acted in her own capacity. The ICC did not have direct participation in this informal process,” he added.

Roque said that the jurisdiction of the ICC is applied prospectively and not retroactively. The Court’s prospective jurisdiction over the Philippines took effect when the country ratified the Rome Statute of the ICC in 2011. It was rescinded in 2019, one year after the country deposited the notice of withdrawal to the United Nations Secretary-General as stipulated under Article 127.

“Without a retroactive effect, the Court cannot open past cases involving our former presidents because it will violate their right to due process,” Roque said.

“Thus, the ICC cannot subject FPRRD to a probe because the Philippines withdrew from the Statute long before the Court authorized a preliminary investigation,” he added, referring to former president Rodrigo Duterte.

Given the ICC’s prospective jurisdiction, it can only conduct a probe on a sitting chief executive or current leaders suspected of committing grave crimes against the international community.

Roque echoed Marcos’ stance that the Philippine government and the Court must first settle the fundamental issue of Philippine sovereignty and judicial independence relative to the Court’s jurisdictional reach.

He urged the President “to be wary of individuals that might use the issue to gain political leverage against the Dut erte family in the lead-up to the 2025 mid-term and 2028 presidential elections.” “I appeal to President to ignore those sowing discord in the UniTeam and dissension between the Marcos and Duterte families,” he said. “After the botched impeachment moves in the Lower House on the Vice President, some ambitious politicos might capitalize on the ICC probe as a way to humiliate Inday Sara, or worse, remove her from office.”