THE HAGUE — Lawyers for former Philippine president Rodrigo Duterte have formally contested the jurisdiction of the International Criminal Court (ICC), asserting that the tribunal lacks the legal authority to prosecute alleged crimes against humanity tied to his controversial anti-drug campaign.
In a 38-page filing dated May 1, defense attorneys Nicholas Kaufman and Dov Jacobs argued that the “preconditions for the exercise of jurisdiction” were not satisfied when the ICC’s Pre-Trial Chamber authorized an investigation on Sept. 15, 2021. Central to their claim is the fact that the Philippines was no longer a party to the Rome Statute — the treaty that established the ICC — at that time.
“The Republic of the Philippines was no longer a State Party to the Rome Statute at that critical point in time,” the filing stated, calling for the nullification of all procedural steps taken in the proceedings and demanding Duterte’s “immediate and unconditional release.”
The challenge comes weeks after Duterte’s arrest in March and his subsequent detention at the ICC Detention Centre in Scheveningen, The Hague.
The Office of the Prosecutor has maintained that the Court retains jurisdiction over alleged crimes committed between November 1, 2011 and March 16, 2019 — a period during which the Philippines was a State Party. The ICC has cited precedent, including its handling of the Burundi situation, to argue that withdrawal from the Rome Statute does not extinguish jurisdiction over crimes committed while a country was still a member.
Former ICC prosecutor Fatou Bensouda initiated a preliminary examination into the Philippines in 2018, leading the Duterte administration to announce its withdrawal from the Court. The withdrawal took effect on March 17, 2019.
In a filing to the Appeals Chamber last year, the prosecution stated, “That the Philippines was not a State Party when the investigation was opened… is immaterial and does not deprive the Court of jurisdiction.”
Duterte’s legal team, however, contends that any procedural steps taken after the withdrawal lack legal foundation. “The Defence requests the Pre-Trial Chamber find that there is no legal basis for the continuation of the proceedings against Mr Rodrigo Roa Duterte,” the filing concluded.
The ICC Pre-Trial Chamber has yet to issue a decision on the jurisdictional challenge.