The lawyer of former President Rodrigo Duterte said the Defense Challenge with Respect to Jurisdiction petition he filed on 1 May is aimed at having his client released from International Criminal Court (ICC) detention before the confirmation of charges hearing on 23 September.

Nicholas Kaufman said it is his “ambition” to get Duterte released and returned home quickly.

In an interview with reporters in The Hague, the lead counsel of the former president expressed confidence in the pleading he submitted to the ICC.

“I think it’s a compelling argument, but the ultimate arbiters of that argument are the judges themselves,” Kaufman said.

In the jurisdiction challenge, Kaufman and associate counsel Dov Jacobs said the prosecution has consistently failed to justify why the court should not apply the plain language of the Rome Statute.

The argument they presented is that the prosecution has confused jurisdiction with the preconditions to exercising jurisdiction.

Duterte’s lawyers cited the application of the ICC Prosecutor for an arrest warrant which said: “[t]he Court has jurisdiction over the crimes alleged in this application. The crimes were committed when the Philippines was a State Party to the Statute from 1 November 2011 to 16 March 2019. During this period, all the necessary preconditions to the Court’s exercise of jurisdiction — set out in Articles 11 and 12 — were satisfied, namely, subject matter, territorial, personal and temporal jurisdiction.”

In the same paragraph, the Prosecution referred to other sources of law which, when analyzed in detail, were either irrelevant to the current discussion or otherwise failed to provide a solid legal basis to support the Prosecution’s legal theory, the defense lawyers pointed out.

The warrant separately cited the 2017 Burundi decision, a 2021 Philippine Supreme Court decision on the Rome Statute, and the 2021 Abd Al Rahman decision, which do not support the Prosecutor’s assertions on ICC jurisdiction.

Thus, the defense counsel said, the Prosecutor has never demonstrated that the ICC was authorized to exercise jurisdiction after the Philippines effectively withdrew from the Rome Statute.

Kaufman said that his only advice to Duterte’s supporters is to “respect the process, trust us as his lawyers to do the job properly, and hope that we will bring the right result home.”

Senate panel findings relevant

Kaufman said the findings of the recent Senate foreign relations committee probe into the surrender of Duterte to the ICC will be incorporated in the arguments of the defense.

“I have been following the proceedings in the Senate; I’ve even read the final report. I’ve seen the thorough work that Senator Imee Marcos has done. Mention has been made of the arrest and the jurisdictional arguments. They are very compelling and they support our arguments as well,” he said.

“There are definitely arguments that can be derived from that report and will be used. References will be made as well,” he added.

“The ICC is a court that will hear our application and apply all due process. I have full confidence in the judges at this moment,” Kaufman said.