The lawyers of former president Rodrigo Duterte have petitioned the International Criminal Court (ICC) to allow them to counter the filing of the prosecution, urging the tribunal to affirm its jurisdiction on the crimes against humanity case of the 80-year-old ex-leader.

Duterte’s legal counsels, Nicholas Kaufman and Dov Jacobs, argued that the prosecution misinterpreted the law by asserting that the ICC still has jurisdiction to investigate the alleged extrajudicial killings allegedly committed by the erstwhile president, even after the Philippines left the Rome Statute in March 2019. 

The submission came on the heels of the twin petitions filed by the prosecution and the counsel for drug war victims, urging the Appeals Chamber to junk the defense’s petition, which stipulates to grant Duterte “immediate and unconditional release as the ICC has “no legal basis” to proceed with the case on grounds of lack of jurisdiction.

According to the defense, even the Pre-Trial Chamber I (PTC-I)—which currently reviews Duterte’s case at the preliminary stage—concurred with them that the ICC cannot claim jurisdiction if the prosecution started the investigation late, or when the state party concerned is no longer a member of the Rome Statute, the tribunal’s founding treaty. 

Recall that the Philippines, on Duterte’s order, ceased to be a party to the Statute in 2018, after ICC prosecutors launched a preliminary probe into his notorious bloody anti-narcotics campaign.

However, the withdrawal only became official in March 2019. Under the ICC’s rules, a one-year window is required to prevent a state party from immediately departing the treaty once it learns that it is under investigation for possible grave crimes, including crimes against humanity.

Duterte is facing three counts of murder for crimes against humanity over the summary killings committed between 1 November 2011 and 16 March 2019, spanning his time as mayor of Davao City and as president.

The Duterte camp has long argued that the ICC lacks jurisdiction over Duterte’s case because the investigation only officially began on 15 September 2021, or two years after the Philippines withdrew from the Statute.

According to Duterte’s lawyers, the PTC-I “erroneously proceeded to rule that Article 127(2) constitutes lex specialis which permits the belated initiation of investigations on a nebulous ‘case by case’ basis.”

Despite the chamber’s “flawed” application of the principle, they claimed that the prosecution refused to challenge the ruling, stating that it did not “materially affect” the impugned decision. 

“Thereafter, the prosecution attempts a ‘back-door’ appeal, seeking the restoration of its own incorrect interpretation of Article 12(2) and Article 13(c) by resort to Regulation 28 of the Regulations of the Court,” the defense’s submission dated 9 December read.

The Duterte camp posits that the prosecution effectively introduced a new request that the defense did not anticipate, warranting “an automatic right of reply.”

“The prosecutor should now accept that the need for accountability cannot be achieved by perverting the correct interpretation of the law and certainly not at the expense of a suspect’s expectation of legal propriety,” the submission further read.

The PTC-I and the prosecution have long insisted on jurisdiction over Duterte’s case, invoking the court’s rule that a withdrawal of a state party does not automatically strip the ICC of authority to exercise its jurisdiction over matters that were already under its consideration before the withdrawal takes effect.

Duterte’s lawyers raised four grounds to reverse the ruling, one of which was that the PTC-I 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 this as “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 prior to the date on which the withdrawal became effective.”

In October, PTC-I dismissed the defense’s petition challenging its jurisdiction. This prompted the defense to challenge the ruling to the Appeals Chamber, which also recently rejected their appeal to temporarily release Duterte from detention pending the confirmation of his charges.