Duterte lawyers: No basis to continue ICC proceedings

MANILA, Philippines — Lawyers representing former president Rodrigo Duterte maintained that the International Criminal Court (ICC) has no basis to continue with the ongoing proceedings in relation to the drug war.

Defense lawyers Nicholas Kaufman and Dov Jacobs filed their appeal brief on Nov. 14 on the issue of jurisdiction pending before the ICC Appeals Chamber.

The defense is seeking to overturn the earlier decision of the ICC Pre-Trial Chamber I, which ruled that the international tribunal retains jurisdiction over alleged crimes against humanity committed in the Philippines when it was a member of the court.

In their appeal, Kaufman and Jacobs said the pre-trial judges erred when they ruled that the matter concerning the Philippines was already “under consideration” when the withdrawal took effect in 2019.

Under the Rome Statute, the treaty that established the ICC, a country’s withdrawal shall not “prejudice in any way the continued consideration of any matter which was already under consideration by the Court prior to the date on which the withdrawal became effective.”

The defense argued that the preliminary examination then being conducted by the ICC prosecutor does not mean that the situation in the Philippines was already a matter under consideration of the court.

It was only in 2021 when the prosecutor sought for an authorization to open an investigation.

“The Pre-Trial Chamber is mistaken in asserting that a preliminary examination is a statutory process,” they argued.

“No statutory provisions govern the nature and conduct of a preliminary examination, and there exist no legal or jurisdictional limitations on the Prosecutor’s ability to open a preliminary examination into any situation as he or she sees fit, even concerning matters impacting the interests of a Non-State Party,” they added.

The pre-trial judges, in their ruling, noted that the prosecutor’s announcement that it will start the preliminary examination was directly related to the Duterte administration’s decision to withdraw from the ICC.

“The Philippines Situation is an example of a matter which was already under consideration by the Court... The Chamber therefore also rejects the arguments of the Defense that the preliminary examination and the decision to authorize an investigation were different ‘matters,’” the court ruled.

The defense is asking the Appeals Chamber to overturn the decision and rule that there is no legal basis for the ICC to continue its proceedings against Duterte, who has been detained in The Hague since March.

Kaufman and Jacobs moved for Duterte’s “immediate and unconditional release” from detention.