Duterte camp challenges ICC jurisdiction anew, seeks former president's immediate release

Former president Rodrigo Duterte's defense team again appealed against the International Criminal Court's jurisdiction in his crimes against humanity case and sought his immediate release.

Duterte's lawyers, led by counsel Nicolas Kaufman, filed a 21-page appeal on Nov. 14 challenging the Pre-Trial Chamber 1 decision that the ICC had jurisdiction to continue its case against Duterte. 

The Defense asserted three "errors of law and fact,” namely, that the Rome Statute allows the opening of an investigation after the Philippines' effective withdrawal from it, that a preliminary examination is a ‘matter under consideration’; and that the reference to ‘the Court’ in Article 127(2) includes the Office of the Prosecutor.

The camp argued that the Pre-Trial Chamber I “erred in law by finding that Article 127 of the Rome Statute is lex specialis (the principle of a special rule overrides a general rule).”

They added that the finding is a "legal novelty" not supported by the Statute’s drafting history and lacks a legal conflict to merit an interpretation.

“Indeed, the words ‘lex specialis’ appear nowhere in any of the 10,531 pages of documented preparatory negotiations to the Rome Statute 19 nor is there any support whatsoever for such a view in any of the recognized commentaries to the Rome Statute."

They also argued that the Chamber erred in treating preliminary examinations and the decision to open an investigation as the same “matters under consideration.”

"These matters are definitely not identical since the ‘consideration’ of each of them is carried out by different organs of the Court and is subject to distinct provisions," the document read.

Duterte's team noted that the term "the Court" in Article 127(2) refers only to the judicial organs and does not include the Office of the Prosecutor, dismissing the Prosecutor's preliminary examination to further consider the case.

In February 2018, the preliminary examinations into the Philippines' "war on drugs" started. A year after, the country's Rome Statute withdrawal took effect. The pre-trial chamber authorized the ICC Prosecutor to open an investigation of crimes in September 2021.

Should the Pre-Trial Chamber's decision stand, the Defense warned it creates a "dangerous policy risk" by giving the Prosecutor the power to "frustrate legitimate withdrawal simply by opening a preliminary examination before the one-year withdrawal period becomes effective."

They argued that the “one-year period already provided by the drafters of the Rome Statute in Article 127(1)” is already a “necessary safeguard” to prevent countries from avoiding an investigation through withdrawal.

The Defense requested the five-judge member Appeals Chamber to reverse the decision on jurisdiction, claiming there is no basis for the ICC to continue proceedings against Duterte. They also demanded the former president's "immediate and unconditional release."

The ICC previously rejected a challenge to its jurisdiction as well as a bid for Duterte's release on medical grounds in October.

Duterte has been at the ICC since March 12.

He was arrested at the Ninoy Aquino International Airport on March 11 following a warrant of arrest issued by the ICC via the International Criminal Police Organization.

He has been accused of being an "indirect co-perpetrator for the crime against humanity of murder pursuant to Article 7 (1)(a) of the Rome Statute."

Specifically, he was allegedly involved in the murder of at least 19 persons reported to be drug pushers or thieves who were killed by members of the Davao Death Squad in various locations in or around Davao City between 2011 and 2016, as well as the murder of at least 24 alleged criminals who were killed by or under the supervision of members of the Philippines law enforcement at various locations in the country between 2016 and 2019 during his term as president.

He could be the first Asian former head of state to be indicted by the ICC.

If the charges against him are confirmed during his pre-trial hearing, it could take months before the case eventually goes on trial. A final judgment may be rendered after years.