The battle for jurisdiction over the alleged crimes that former President Rodrigo Duterte allegedly committed in implementing the war on drugs continues to rage.

International Criminal Court (ICC) prosecutors and the counsel of the victims of the drug war have teamed up to seek the dismissal of Duterte’s appeal to reverse a ruling by the Pre-Trial Chamber I that upheld the court’s jurisdiction over his case.

Deputy Prosecutor Mame Mandiaye Niang and Principal Counsel Paolina Massidda filed their respective 22-page petitions urging the ICC Appeals Chamber to junk the bid of Duterte’s lawyers, citing the lack of factual errors in the earlier decision warranting a reversal.

The twin petitions directly challenged the assertions made by Nicholas Kaufman and Dov Jacobs that the ICC had “no legal basis” to proceed with the pre-trial on grounds of lack of jurisdiction, and should order Duterte’s “immediate and unconditional release” as a result.

The probe began late

The defense has long argued that the ICC has no jurisdiction over the case because its investigation began only in September 2021, more than two years after the Philippines ceased to be a party to the Rome Statute, the ICC’s founding treaty.

The Philippines, on Duterte’s orders, withdrew as a state party from the Rome Statute in March 2018 after ICC prosecutors launched a preliminary investigation into the alleged extrajudicial killings, which had drawn international condemnation.

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

The window is designed to prevent a state party from immediately departing the treaty once it learns that it is under investigation for possible grave crimes.

In October, the PTC-I dismissed the defense’s challenge to its jurisdiction, invoking the court’s rule that stipulates 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.

This prompted Duterte’s lawyers to challenge the decision before the Appeals Chamber, which recently rejected a petition to temporarily release Duterte pending confirmation of the charges against him.

Duterte’s lawyers raised four grounds for reversing the ruling, one of which was that the PTC-I had erred in finding that “the mere opening of a preliminary examination would be sufficient for the exercise of jurisdiction over alleged crimes committed even after the withdrawal of the state concerned.”

Niang countered that this was “immaterial” because under Article 127(2) of the Rome Statute, the withdrawal of a state party shall not “prejudice in any way the continued consideration of any matter which was already under consideration by the court before the date on which the withdrawal became effective.”

He also noted that, “This scenario is not the factual basis of the present situation, nor was it addressed in (or essential to) any part of the reasoning in the Decision. It need not be resolved in the present appeal.”

Massidda, on the other hand, contended that the defense “grossly misrepresents” the reasoning of the PTC-I in the previous ruling, and that it “opposes each ground of the appeal, as well as the relief sought by the Defence in its entirety.”

Furthermore, she asserted that the defense is merely “repeating previously rejected arguments and failing to identify a legal error,” suggesting that it was a veiled attempt to delay the pre-trial hearing deliberately.

Aside from the jurisdiction issue, the defense has made several efforts to halt the looming pre-trial and secure the release of the 80-year-old Duterte from ICC detention. This includes Duterte’s alleged debilitating health, making him unfit to stand trial, and their botched attempt at an interim release.