Duterte lawyers urge ICC to drop case, cite lack of jurisdiction

The lawyers of former president Rodrigo Duterte have told the International Criminal Court (ICC) that there is “no legal basis” for the proceedings to continue, following their failed attempt to have the murder case dismissed on alleged grounds of lack of jurisdiction.

In a submission dated 28 October, lawyers Nicholas Kaufman and Dov Jacobs argued that the ICC found no merit to proceed with the crimes against humanity case and should order the “immediate and unconditional release” of the 80-year-old former leader as a result.

The petition’s filing came on the heels of the ICC’s rejection of the defense’s renewed bid for the court to refrain from exercising its jurisdiction over Duterte ahead of his pre-trial, citing the Philippines’ withdrawal from the Rome Statute in March 2019.

Duterte’s camp contended the impugned decision, asserting that it warrants reversal.

In a 32-page decision published on 23 October, the ICC disagreed with the defense’s argument that the court does not have jurisdiction over the alleged crimes since the Philippines was no longer a state party to the Statute when it launched a full-blown probe into Duterte’s bloody war on drugs.

The Philippines, on Duterte’s order, withdrew from the Rome Statute—the ICC’s founding treaty—in March 2018.

The exit came a month after the court’s then-chief prosecutor announced the opening of a preliminary investigation into alleged extrajudicial killings, which drew international condemnation.

Under the court’s rules, however, a withdrawal takes effect only one year after the ICC receives notification from the concerned state.

This one-year window is designed to prevent a state party from immediately leaving the treaty once it learns it is being investigated for possible grave crimes.

Another rule provides that a withdrawal does not automatically strip the ICC of authority to exercise jurisdiction over matters already under its consideration before the withdrawal takes effect.

As a result, the ICC rejected Duterte’s camp’s assertions, maintaining that it still has jurisdiction over crimes against humanity committed from November 2011 to March 2019—covering Duterte’s tenure as Davao City mayor and as president of the republic.

“For all of the above reasons, as a result of the prosecution’s preliminary examination having commenced prior to both the Philippines depositing its written notification of withdrawal from the Statute and the date on which that withdrawal became effective, the chamber finds that the court can exercise its jurisdiction in the present case over the crimes alleged against Mr. Duterte that were committed on the territory of the Philippines while it was a state party,” the decision read.

In a separate filing, lawyer Paolina Massidda, representing the drug war victims as principal counsel, petitioned the ICC to dismiss a separate appeal by the defense seeking Duterte’s interim release pending the confirmation of the murder charges against him.

Duterte’s lawyers have appealed to the court to extend their client humanitarian consideration, citing his advanced age and frail health condition.

The octogenarian is allegedly suffering from impaired memory, making him unable to contribute to his own defense and rendering his participation in the proceedings ineffective.

However, Massidda strongly objected, arguing that the diagnosis does not suffice as justification for Duterte’s temporary release unless it involves a “life-threatening medical condition.”

A previous ICC ruling stated that Duterte remains a flight risk and poses a threat to potential witnesses, warranting his continued detention at the ICC facility in The Hague.

Duterte was supposed to face ICC judges on 23 September for the confirmation of his murder charges, but the hearing was postponed indefinitely following a petition by the defense.