The lawyers of former President Rodrigo Duterte have told the International Criminal Court (ICC) that there’s “no legal basis” for the proceedings to continue following their failed attempt to have the murder case dismissed on the ground 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 Filipino ex-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 withdrawal of the Philippines from the Rome Statute in March 2019.

Duterte’s camp impugned the decision, asserting that it warranted a reversal.

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

It will be recalled that the Philippines, on Duterte’s orders, withdrew from the Rome Statute — the ICC’s founding treaty — in March 2018.

The exit came one month after the court’s then chief prosecutor announced a preliminary investigation into the alleged extrajudicial killings.

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

The one-year window is designed to prevent a state party from immediately departing the treaty as soon as it learns it is being investigated for grave crimes.

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

The ICC has rejected the Duterte camp’s claims, asserting that it still had jurisdiction over alleged crimes against humanity committed between November 2011 and March 2019 — when Duterte was Davao City mayor and then president.

“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 in 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 lawyer has appealed to the court to extend a humanitarian consideration to their client, citing his advanced age and frail health.

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

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

A previous ruling by the ICC stated that Duterte remained a flight risk and posed a threat to the witnesses, which warranted his continued detention at the ICC facility in The Hague.

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