ICC shoots down Du30 challenge

The International Criminal Court (ICC) has affirmed its jurisdiction over the crimes against humanity case against former Philippine President Rodrigo Duterte, as it rejected the challenge of his lawyers that was based on arguments the international tribunal had lost its authority following the country’s withdrawal from the Rome Statute.

The Rome Statute is the international agreement under which the signatory nations, which initially included the Philippines, created the ICC, but the Philippines withdrew in March 2018. The country’s leaving the international pact took effect a year later.

In a ruling issued on 23 October, ICC Pre-Trial Chamber I Judges Iulia Antoanella Motoc, Reine Adélaïde Sophie Alapini-Gansou, and María del Socorro Flores Liera dismissed the defense’s claim that the ICC could not investigate Duterte’s bloody war on drugs.

The latest decision, however, did not address Duterte’s separate motion to halt the proceedings, in which his camp claimed he is unfit to stand trial.

The defense lawyers argued that the investigation into the drug war was formally authorized only in September 2021, or two years after the country’s withdrawal from the treaty took effect.

The judges emphasized, however, that the ICC’s jurisdictional framework remains applicable in cases involving crimes committed while a state was still a member of the Statute.

No limiting provision

Citing Article 127(2) of the Rome Statute, the ICC judges said a withdrawal “shall not… prejudice in any way the continued consideration of any matter which was already under consideration by the Court prior to the date on which the withdrawal became effective.”

They also noted that no provision in the Statute limits the ICC’s jurisdiction over crimes committed before a withdrawal takes effect.

Article 127(2), they said, explicitly allows the Court to proceed with matters that were already being examined before a state’s exit became official.

Duterte’s legal team had argued that a preliminary examination did not constitute a “matter under consideration,” describing it as an informal and non-justiciable process.

The ICC disagreed, ruling that the phrase “any matter” in Article 127(2) was broad and “not limited to a specific phase of the proceedings.” Therefore, the ICC judges concluded, the preliminary examination falls within the Court’s ongoing jurisdiction.