ICC rejects Duterte jurisdiction appeal

MANILA, Philippines —  Former president Rodrigo Duterte will remain in detention in The Hague after the Appeals Chamber of the International Criminal Court (ICC) denied yesterday his appeal on the issue of jurisdiction.

The five-member Appeals Chamber confirmed by a majority of 4-1, the Oct. 23 decision of the ICC Pre-Trial Chamber I that denied Duterte’s challenge to the jurisdiction of the tribunal.

The summary of the decision was read in open court by Judge Luz del Carmen IbaÏn?ez Carranza, who was appointed presiding judge for Duterte’s appeal.

The other members of the chamber are Judge Tomoko Akane, also ICC president; and judges Solomy Balungi Bossa, Gocha Lordkipanidze and Erdenebalsuren Damdin.

Duterte waived his right to appear during the reading of the judgment, which started at 11 a.m. (5 p.m. in Manila). His defense team led by lawyers Nicholas Kaufman and Dov Jacobs appeared on his behalf.

The Appeals Chamber unanimously rejected the defense’s first of four grounds of appeal, which centered on the interpretation of a provision related to the withdrawal of a state party to the Rome Statute, the treaty that established the ICC.

“The Appeals Chamber observed that the Rome Statute must be interpreted in a systemic manner and in line with the object and purpose of the Statute, which is to put an end to impunity for the perpetrators of the most serious crimes of concern to the international community as a whole,” the ICC said in a press release.

“It ruled that it would be incompatible with this object and purpose to enable a State Party to evade its responsibilities under the Statute by depositing a written notice of withdrawal once it discovers that alleged crimes committed on its territory or by its nationals are being examined by the Prosecution,” it added.

Dissenting vote

Judge Lordkipanidze partially dissented with the majority on the defense’s second ground, which argued that the pre-trial judges erred when they ruled that the case was already “under consideration” when the Philippines’ withdrawal took effect in 2019.

Under the Rome Statute, 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 pre-trial chamber ruling said that the case was already “under consideration” by the ICC prosecutor even before the Philippines’ withdrawal took effect in 2019.

It cited the preliminary examination that triggered the Duterte administration’s decision to cease becoming a member of the tribunal.

The appeals judges also denied the third and fourth grounds of appeal, which involved the standing of the Office of the Prosecutor in the interpretation of a provision in the treaty and the supposed error of the Pre-Trial Chamber I when it permitted the opening of the investigation in the Philippine situation.

The Pre-Trial Chamber I is composed of a different set of judges from the Appeals Chamber.

The issue of jurisdiction is a key argument of the defense in challenging the crimes against humanity case against the former president.

Sen. Imee Marcos has expressed disappointment over the ruling of the ICC Appeals Chamber.

“This determination disregards the Philippines’ sovereign withdrawal from the Rome Statute and undermines the fundamental principle that domestic institutions must be given primacy where they are able and willing to act,” Marcos said.

“At its core, this development raises serious concerns about the inviolate respect for national sovereignty and the proper limits of international jurisdiction. Justice must be pursued in a manner consistent with our Constitution, our laws, and the integrity of our own judicial processes,” she said.

Invictus

In a message to supporters relayed earlier yesterday through daughter Veronica or Kitty, the former president said “Invictus,” – Latin for “unconquered”– which is also the title of a poem by 19th century English author William Ernest Henley about coming out strong in the face of adversity.

“He has a message for you. Because when I came in, I told him, people are waiting outside. He said, ‘tell them. personally, I said, thank you. And if they ask how I’m doing. Tell them, invictus,’” Kitty, quoting her father as saying, told supporters gathered outside the detention facility in The Hague.

“Actually, I asked him earlier, ‘Papa, do you know how loved you are?’ And he said, ‘I don’t really want to say, but I think,’” Kitty later said in an interview posted on Alvin and Tourism Facebook.

“Today was good. We talked not much politics, not much local news. More of like life experiences, past experiences, and future plans. That’s why, as we were talking about the future plans, he said again, ‘I leave it up to God because what man proposes, God disposes. That’s why, God willing, we’ll see,’” she added. - Neil Jayson Servallos, Marc Jayson Cayabyab, Bella Cariaso