The camp of drug war victims could still avail legal remedies to hold the former president Rodrigo Duterte accountable for alleged crimes against humanity in case the International Criminal Court’s Appeals Chamber ruled in his favor and dismissed the case for “lack of jurisdiction.” 

ICC-accredited lawyer Gilbert Andres, who is also a counsel from the Office of Public Counsel for Victims (OPCV), said one possible recourse is to invoke “universal jurisdiction,” which allows national courts to prosecute individuals for serious crimes against international law regardless of where the crimes were committed.

“The ICC issue on jurisdiction only pertains to the ICC. But let’s say that [if] the ICC will rule that it has no jurisdiction, there are still remedies for the victims, and this is the universal jurisdiction,” Andres said partly in Filipino in a television interview.

“There are other countries in the world where they reiterate universal jurisdiction over crimes against humanity wherever it occurs. So that can be a remedy,” he added.

The Appeals Chamber is set to rule with finality on 22 April whether the ICC has jurisdiction to prosecute the 81-year-old ex-leader for crimes against humanity of murder and attempted murder tied to his notorious bloody war on drugs. 

The defense has repeatedly contested the ICC’s jurisdiction, citing the Philippines’ withdrawal as a state member from the Rome Statute, the tribunal’s founding treaty, as early as March 2019.

Despite this, Andres believes that there is “sufficient basis” for why the ICC still asserts authority over Duterte’s case even as the country’s membership was no longer in effect at the time of his arrest on 11 March in Manila. 

Recall that in 2018, Duterte ordered that the Philippines cease to be a party to the Statute, after ICC prosecutors launched a preliminary probe into his bloody drug war that has drawn global condemnation. 

However, the withdrawal only became official one year later. 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 committing possible grave crimes, including crimes against humanity.

“That’s why we believe that the safeguards against the adverse effects of withdrawal are strong, and that it will not simply remove the jurisdiction of the ICC,” Andres asserted. 

Unprecedented

The ICC's ruling on whether it still has jurisdiction over a state that has already withdrawn from the treaty would be the first of its kind, according to Andres. 

He emphasized that “peculiar fact” in this case is that the person responsible for the withdrawal of a state is the same person facing grave charges before the tribunal. 

Duterte plans to skip the public reading of the Appeals Chamber on its decision on jurisdiction next week. This marks the third time that he has asked permission from the ICC to skip relevant hearings of his case in light of claims by his lawyers of his debilitating cognitive impairment and unexplained weight loss.

In February, Duterte also waived his attendance at the four-day hearing of the confirmation of his murder charges related to his notorious bloody drug war, arguing that the ICC has no jurisdiction over him.

He first did this in late November last year, when the Appeals Chamber rendered a unanimous decision dismissing his petition seeking his temporary release. 

Nonetheless, Andres said the waiver has no effect on the case, calling it “irrelevant” under the court rules.

Duterte is facing three counts of murder for his role as “indirect co-perpetrator” over the alleged extrajudicial killings committed during the brutal campaign against illegal drugs, spanning his time as Davao City mayor and as president. 

The deadly anti-narcotics operations killed over 6,000 deaths based on government data, though human rights groups estimated the actual death toll exceeded 30,000, mostly from poor communities.

The Pre-Trial Chamber will hand down its decision in late April on whether these charges will be confirmed for a full trial or be dismissed for lack of sufficient evidence.

If the ICC confirms only one of the three charges brought against him by the prosecutors, Duterte will remain in ICC custody in The Hague, Netherlands, for another round of trial.