The plenary of judges of the International Criminal Court (ICC) has unanimously rejected the petition of former president Rodrigo Duterte's camp to disqualify two magistrates whom they accused of partiality.

In a 13-page decision dated 3 July, the ICC judges repudiated the accusations of Duterte’s lead legal counsel, Nicholas Kaufman, that Judges Reine Alapini-Gansou and María del Socorro Flores Liera had already formulated a firm opinion on the jurisdictional issues raised by their camp, and hence must be disqualified.

The tribunal argued that there are no grounds to doubt the judges’ impartiality in the current case, suggesting that the Duterte camp’s request might only lead to unnecessary delays.

It emphasized that the defense also fell short in meeting the threshold to rebut the presumption of impartiality under Article 41(2) of the Rome Statute, which sets the grounds for disqualification of a judge. 

“The plenary of judges, acting unanimously, considers that no actual nor reasonable apprehension of bias arises in respect of Judges Alapini-Gansou and Flores. The plenary of judges considers that the judges acted, at all times, in accordance with the judicial duties assigned to them under the Statute,” read the decision penned by Judge Tomoko Akane, the ICC’s president. 

“The judges consider it untenable to suggest that judges cannot adjudicate a matter which is legally within their competence just because they previously issued judicial decisions at different stages of the pre-trial proceedings in the same situation on the basis of different arguments,” it added.

The ICC ruled that Alapini-Gansou and Flores will still exercise the functions assigned to them because the appearance of bias or lack of impartiality was not sufficiently established. 

Kaufman had petitioned the ICC to remove the two judges from hearing the current case, accusing them of having “already predetermined the outcome of the jurisdictional dispute in [their] favour” since they had already ruled on the exact same issue before.

He cited the judges’ go-signal to launch an investigation into Duterte’s bloody war on drugs, and their signatures to the warrant as grounds for their recusal.

Alapini-Gansou and Flores comprised the ICC Pre-Trial Chamber I, which launched a preliminary probe into the drug war, along with Presiding Judge Iulia Motoc.

“It is not reasonable to expect a judge who has recently expressed a highly publicised position on a specific legal issue to depart from that view. It is specifically for this reason, so it is submitted, that the Presidency has ruled that an objective observer’s perception of a judge’s inability to diverge from previous rulings on the same issues gives rise to a presumption of partiality,” Kaufaman’s petition dated 12 May read.

The British-Israeli lawyer had contested the jurisdiction of the ICC to prosecute Duterte on allegations of crimes against humanity, considering that the Philippines is no longer a state party to the Rome Statute—the ICC's founding treaty—as early as March 2019.

The ICC, however, asserted that it still retains jurisdiction over the killings committed prior to the country’s withdrawal, emphasizing that the preliminary investigation had already commenced even before the country departed the treaty.

Duterte was arrested in Manila on 11 March under a warrant issued by the ICC.

The plenary of judges further argued that the arguments raised by Kaufman were a mere rehash of the previous appeals by the Philippines concerning jurisdictional issues that had already been resolved by the ICC Appeals Chamber, when it authorized the resumption of the investigation into the nototious drug after it was temporarily put on hold in 2021 pursuant to Philippines’ request.

“The plenary of judges notes that the disqualification of a judge is not a step to be undertaken lightly and that a high threshold must be satisfied in order to rebut the presumption of impartiality which attaches to judicial office. The Application pertains only to an alleged appearance of bias, rather than any allegations of actual bias,” the decision reads.

In May, ICC Deputy Prosecutor Mame Mandiaye Niang also opposed the same petition, asserting that prior rulings made by Alapini-Gansou and Flores did not autimatically indicate any bias in the present case, noting that earlier determinations related to jurisdiction were made before the defense had even submitted their observations.

He contended that judges handling similar legal issues are never unusual, and that prior determinations alone do not demonstrate conflict or impropriety.

The 80-year-old Dutere will remain in the ICC’s custody in The Hague, Netherlands, while awaiting confirmation of his charges, scheduled for 23 September. He is facing a single count of crimes against humanity over 43 extrajudicial killings committed between 1 November 2011 and 16 March 2019, covering his time as Davao City mayor and later as president.

However, he could still face a separate charge of torture and rape, which also constitute crimes against humanity under Article 7 of the Rome Statute, if the prosecution will be able to produce additional set of evidence substantiate the offenses.

The government logged more than 6,000 drug-related deaths during Duterte’s tenure as president, though rights watchdogs estimate that the actual death toll could exceed 30,000, most of them from low-income communities.

A petition for Duterte’s interim release was already filed, facing strong opposition from the prosecution. The ICC, however, has yet to rule on the matter.