The counsels of former President Rodrigo Duterte in the looming historic legal battle at the International Criminal Court (ICC) are confident of bringing him home sooner than expected.

Duterte’s team will zero in on the jurisdiction issue which has yet to be settled by the Tribunal despite having allowed the investigation on the war on drugs to proceed.

In its 2023 decision, the ICC rejected the Philippine government’s appeal to stop the investigation into the war on drugs. Two of the five judges, including the presiding officer, voted to halt the proceedings.

The dissenting magistrates in the ICC Pre-Trial Chamber I that voted to stop the investigations were presiding officer Judge Marc Perrin de Brichambaut of France and Judge Gocha Lordkipanidze of Georgia.

They issued a joint opinion stating that the tribunal could not exercise jurisdiction over the Philippines because its withdrawal from the Statute took effect in 2019 before the Prosecutor requested authorization to initiate an investigation.

The Prosecutor then was Gambian lawyer Fatou Bensouda, who has since retired. The 3-2 vote in favor of denying the Philippine petition reflected the struggle among the judges over the jurisdiction question.

“Just as a State that is not, or is no longer, a Party to the Statute cannot refer a situation to the Court under Article 13(a) of the Statute and thus trigger the Court’s exercise of jurisdiction (though it may accept the jurisdiction of the Court under Article 12(3)), the Prosecutor cannot commence the process of triggering the jurisdiction of the Court once a withdrawal has become effective and the State in question is no longer a Party to the Statute,” the dissenters indicated.

Solicitor General Menardo Guevarra shared their view on the lack of ICC jurisdiction in his appeal for recusal with the Supreme Court on representing the government in the habeas corpus case filed by Duterte’s children.

The state lawyer indicated that he was opting out of defending the administration in his manifestation to recuse. The manifestation stated that the OSG cannot defend the government because it has always taken the position that the ICC had lost its jurisdiction over Duterte’s war on drugs.

“The OSG has consistently maintained, both in its submissions before the ICC and in its public statements, that the case of the Philippines was not admissible and that the ICC failed to timely exercise its jurisdiction,” according to the manifestation.

According to the dissenting ICC judges, “The Court’s jurisdiction must be triggered before the withdrawal has become effective. Put differently, once the State’s withdrawal had become effective, the Prosecutor can no longer open an investigation.”

In March 2018, Duterte ordered the Philippines’ withdrawal from the Rome Statute that created the ICC, which was when Bensouda ordered a preliminary examination of the crime against humanity complaint.

The Philippines formally cut ties with the ICC on 17 March 2019, exactly a year after it bolted from the Rome Statute.

It was only in September 2021 that the ICC launched a formal inquiry but suspended this for two months after the government vowed to re-examine the alleged extrajudicial killings.

In June 2022, Bensouda requested to reopen the inquiry as it was “not satisfied” with the actions taken by the Philippines. According to the two dissenting justices, the issue of jurisdiction was not properly addressed in the ICC proceedings.

“While the Pre-Trial Chamber had already made similar findings on jurisdiction in its previous Article 15 decision, which are referred to in the impugned decision, Article 15 of the Statute does not foresee the participation of the State concerned in the relevant proceedings, and the Statute does not provide for the possibility of a State to file an appeal against a pre-trial chamber’s ruling in the context of Article 15 proceedings.”

“As such, we consider that the Philippines’ challenge regarding the Court’s jurisdiction is properly raised on appeal and the Appeals Chamber should have addressed it on the merits,” according to the dissenters.

A key point of the dissenters was that “it is a fundamental right of States to decide whether they want to be bound by a treaty or not.”

“We consider that the Pre-Trial Chamber erred in law in concluding that the Court had jurisdiction over the Philippine situation despite the Philippines’ withdrawal from the Rome Statute.”

That sums up the wobbly ICC claim on jurisdiction.