Lawyers for former Philippine President Rodrigo Roa Duterte have asked the International Criminal Court (ICC) to dismiss the case against him, arguing that the tribunal has no jurisdiction following the Philippines’ withdrawal from the Rome Statute.

In a 10-page public redacted reply, Duterte’s defense team accused the ICC’s Office of the Prosecutor of “willful neglect” for failing to disclose in a timely manner key materials relevant to the jurisdictional debate.

This delay, they said in the reply filed 10 July but was made available to the media only late Saturday, undermined Duterte’s right to a fair defense and caused him “irreparable prejudice.”

Likewise, the response countered the prosecution’s earlier claim that the ICC has retained jurisdiction over crimes committed while the Philippines was still a state party to the Rome Statute, the treaty that established the court.

The defense reiterated that Duterte is not evading accountability but believes any legal proceedings should take place within the Philippine justice system.

“If I committed a sin, prosecute me in Philippine courts, with Filipino judges, and I will allow myself to be jailed in my own nation,” Duterte said in an earlier statement included in the filing.

The legal team further argued that the ICC prosecutor missed the opportunity to formally initiate an investigation while the Philippines was still bound by the treaty. The one-year withdrawal notice submitted in 2018 took effect in 2019, it pointed out.

“The Prosecutor has to make all efforts to trigger the Court’s jurisdiction in a manner that would not infringe the right of a State to withdraw from the Statute,” the filing noted, quoting a 2023 dissenting opinion by ICC Judges Perrin de Brichambaut and Gocha Lordkipanidze.

‘Not about impunity’

According to the defense, however, the ICC’s preliminary examination into Duterte’s anti-drug campaign “lacks consequence” because the Philippines had already initiated its withdrawal from the statute before the court authorized the investigation.

“If the state in question is not a state party contemporaneously with the exercise of jurisdiction, then no investigation may be initiated,” the defense said. “Whatever steps were taken during the preliminary examination lack consequence.”

The defense also raised concerns over the pre-trial chamber’s earlier refusal to disqualify two judges, saying newly disclosed information casts a different light on prior decisions.

They argued that the new evidence introduces a “totally new dimension” that strengthens their challenge to the court’s jurisdiction.

Responding to the prosecution’s assertion that the ICC has a broader mission to combat impunity, the defense insisted that due process must take precedence.

“The ‘fight against impunity’ cannot warrant an inappropriate application of the Rome Statute,” the filing stated, citing previous ICC rulings emphasizing that judicial fairness should prevail over political or emotional aims.

Conflicting numbers

At the core of the ICC’s investigation are allegations of crimes against humanity tied to Duterte’s war on drugs, which human rights groups claim resulted in the deaths of anywhere between 12,000 and 30,000 individuals, many of them urban poor.

The Philippine National Police has admitted that around 6,000 “drug personalities” had died in legitimate police anti-drug operations.

Allies of Duterte have increasingly accused the Marcos administration of using international pressure and legal machinery to neutralize the Dutertes ahead of the 2028 elections.

Vice President Sara Duterte, once a close Cabinet member under President Ferdinand Marcos Jr., has since resigned from her posts and now faces an impeachment complaint in Congress.

Duterte supporters claim both the ICC case and the impeachment effort are politically motivated, coordinated attempts to dismantle the Duterte legacy and weaken the family’s political base in Mindanao and the Visayas.

Marcos and the younger Duterte got elected to the top two highest posts of the land in 2022 under the UniTeam coalition.

Call to end proceedings

Duterte’s lawyers also asked the ICC’s pre-trial chamber to acknowledge the alleged lack of jurisdiction and to immediately terminate the case.

“The defense respectfully requests the Pre-Trial Chamber to find that there is no jurisdictional basis for the continuation of proceedings against Mr. Duterte and to order his immediate and unconditional release,” they wrote.

The filing was submitted by defense counsel Nicholas Kaufman and associate counsel, Professor Dov Jacobs.