The camp of former President Rodrigo Duterte has petitioned the International Criminal Court (ICC) to allow them to appeal the recent ruling of the Pre-Trial Chamber I confirming the crimes against humanity of murder tied to his bloody drug war.

In an 18-page submission dated 29 April, Duterte’s lead counsel, Nicholas Kaufman, cited “two appealable issues” in contesting the 23 April decision.

He accused the chamber of committing an error by adopting a “flexible” approach to the formulation of the charges, as well as relying on “irrelevant considerations,” not supported by the Rome Statute, the ICC’s founding treaty.

Kaufman argued that by adopting the said approach, the PTC I effectively endorsed an open-ended formulation of the charges, permitting their factual scope to remain undefined and thereby failing to delineate the parameters of the case at the confirmation stage, as required by the rules of the procedure.

He also alleged that the chamber “erred in law” by accepting the prosecution’s evidence “at face value” without closely examining the defense’s submissions that there was no “common plan” behind the alleged crimes.

Common yarn

ICC records showed that Duterte and his co-perpetrators executed a “common plan” to “neutralize” criminals in the Philippines, including those perceived or alleged to be associated with drug use, sale, or production. The scheme involves systematic killings, torture, murder and other crimes.

“The above-mentioned errors undermine the very function of the confirmation procedure — that is, to define the case and to test the evidentiary strength and basis of the charges. These errors directly affect the fairness and expeditious conduct of the proceedings, warranting immediate appellate intervention,” Kaufman said.

The British-Israeli lawyer further argued that these issues could significantly affect the fairness and expeditious conduct of the proceedings, thereby warranting an immediate resolution from the court.

Not all ICC decisions are appealable; some require a party to first seek permission from the court.

“Prompt intervention would ensure that the case proceeds on a properly defined factual and evidentiary framework, enabling the defense to prepare effectively for trial, reducing the likelihood of protracted future litigation on these issues, and dispelling any enduring doubts as to the validity of the impugned decision,” the submission further reads.

In confirming all three murder charges last week, the PTC ruled that there are substantial grounds to believe that Duterte is criminally responsible for the alleged extrajudicial killings linked to his notorious drug war.

This includes the killings of 78 individuals, including six children, allegedly suspected of drug dealings from 2013 to 2018, spanning his tenure as Davao mayor and as president.

It also covered the killings by the so-called Davao Death Squad, which was founded and headed by Duterte, as alleged by prosecutors.

Duterte, 81, has been detained in the ICC custody since 11 March last year over his role as an “indirect co-perpetrator” for the said killings.

Earlier this week, the ICC formed a new panel of judges who will constitute the Trial Chamber III mandated to hear the case of the former at the trial phase.