Former President Rodrigo Duterte’s counsels sought his unconditional release before the International Criminal Court, citing the tribunal’s lack of jurisdiction.

Defense lawyers led by Nicholas Kaufman and Dov Jacobs, in a 41-page petition, asked that the Pre-Trial Chamber determine that there is no legal basis for continuing the proceedings against Duterte and to order his immediate and unconditional release.

The petition cited several provisions of the Rome Statute that support the argument of Duterte’s lawyers, who stressed the former President’s right to be protected against being deprived of liberty.

The petition cited an “erroneous decision by (Prosecutor Karim Khan’s) predecessor,” referring to retired Prosecutor Fatou Bensouda’s request in May 2021 to the ICC’s pretrial chamber to escalate the preliminary examination to a full investigation, two years after the withdrawal of the Philippines from the Rome Statute took effect.

The ICC judges granted Bensouda’s request in September of that year.

“The present Prosecutor (Khan) should not be fighting tooth and nail to perpetuate or defend an erroneous decision,” Duterte’s lawyers said.

Also cited in the defense’s motion was President Ferdinand Marcos Jr.’s implied acceptance, “for jurisdictional reasons, that former President Duterte should not be tried at the ICC.”

The defense’s petition cited “an exchange of letters” in which President Marcos gave a written undertaking that his government would not “assist the ICC, in any way, shape or form.”

Duterte’s defense lawyers focused on the preconditions for the exercise of jurisdiction under Article 12 in the ICC’s review of the Situation of the Philippines that were not met when the Pre-Trial Chamber authorized the opening of an investigation on 15 September 2021.

“The Republic of the Philippines was no longer a State Party to the Rome Statute at that critical point in time,” according to the petition.

“As a consequence, all procedural steps taken in the situation and, subsequently, in the case against Mr. Rodrigo Roa Duterte lack legal foundation and should be nullified forthwith,” Kaufman and Jacobs wrote.

“The jurisdictional framework of the Rome Statute is clear: A State must be a State Party at the time of the exercise of jurisdiction,” their pleading added.

The defense lawyers said it is essential to analyze the jurisdictional concepts of the Rome Statute to determine whether the court has jurisdiction to hear the case against Mr. Duterte.

Specifically, it is vital to differentiate between jurisdiction stricto sensu (in the narrow sense), on the one hand, and the exercise of jurisdiction, on the other.

Duterte’s counsels explained that the provisions relating to the tribunal’s jurisdiction stricto sensu are defined in material jurisdiction, temporal jurisdiction and personal jurisdiction.

Jurisdiction is reflected in the Statute’s language, which states, “as a factual determination, that the Court has jurisdiction over (i) certain crimes (ii) committed after the entry into force of the Statute (iii) by natural persons.”

It follows that the additional criteria of “nationality” and “territory” are not pertinent to the existence of jurisdiction stricto sensu but, instead, are factors requiring consideration in the context of the Court’s exercise of jurisdiction, the defense lawyers said.

“The correct moment to determine when the Court has jurisdiction stricto sensu is, thus, only at that point in time when the alleged crimes were committed.”

The plea added that “this is even more the case when a State has withdrawn from the Statute and the question of whether the Court has jurisdiction stricto sensu over the alleged crimes committed in the Philippines Situation is not in dispute.”

According to their appeal, the true issue is whether “dormant jurisdiction” stricto sensu could be triggered and whether the Court could properly exercise jurisdiction after the Philippines’ effective withdrawal from the Rome Statute.

The arguments indicated that the current Philippine administration’s surrender of the former chief executive to the ICC lacked basis and should not have happened.

The handover led to former President Duterte being held illegally in The Hague — and his return to the Philippines is imminent.