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With five months to pre-trial, the request asks the judges to completely junk the case, and free Duterte unconditionally
MANILA, Philippines – Citing lack of jurisdiction, former Philippine president Rodrigo Duterte has officially asked the International Criminal Court (ICC) to completely junk the case against him — making the five-month wait until the pre-trial hearing on September 23 more tense.
“The Defense requests the Pre-Trial Chamber find that there is no legal basis for the continuation of the proceedings against Mr. Rodrigo Roa Duterte and to order his immediate and unconditional release,” said the submission filed by Duterte’s lawyers Nicholas Kaufman and Dov Jacobs early morning Manila time on Friday, May 2.
They asked the pre-trial chamber III to decide on this request as a “preliminary matter” before the September 23 hearing, in order to avoid “the unnecessary expenditure of resources incurred by allowing a confirmation of charges hearing to proceed in the absence of any jurisdictional basis.”
What this means is that Duterte’s lawyers are hoping that the proceedings end even before the September 23 confirmation of charges hearing. It would also be interesting to see how the ICC judges will interpret this legal dispute, as this very specific situation is happening only now.
The closest in comparison would be Burundi, but in their case, an investigation was opened even before their withdrawal took effect. Whereas in the Philippines, the investigation was opened only after two years after the withdrawal became effective.
Clearer now is the clash of two arguments — those supporting jurisdiction say the language of the Rome Statute is not so clear and should be interpreted in a certain way, whereas Duterte’s foreign lawyers believe the contrary, that language against jurisdiction is clear.
Duterte is “in good spirits,” Kaufman told Rappler in a message from The Hague on Friday, right after filing the submission. Asked about Duterte’s health, Kaufman said: “As a matter of principle, I do not comment on matters of medical privacy whoever my client may be.”
Jurisdiction
The dispute arises largely because of the different articles in the Rome Statute that tackle jurisdictions and withdrawals.
For a long time, the article often cited is Article 127 which says withdrawal shall not affect proceedings that were already started. In approving the warrant of arrest against Duterte, the judges still relied on Article 127, saying: “These provisions and the ensuing obligations remain applicable, notwithstanding the Philippines’ withdrawal from the Statute.”
For Duterte’s lawyers, there’s a difference between the existence of jurisdiction and the exercise of jurisdiction. The existence of jurisdiction is easy because the Philippines was indeed a member for all those years when the alleged crimes happened, or from 2011 to 2019; but exercise of jurisdiction would have already been affected by the withdrawal in 2019, said the lawyers.
They cite Article 12 of the Rome Statute which lays out the “preconditions to the exercise of jurisdiction,” and Article 12(2), which says “the Court may exercise its jurisdiction if one or more of the following States are Parties to this Statute.” Notice the use of “are” in “States are parties to this Statute.”
That the Rome Statute made use of the present tense “are” means, according to the lawyers, that the Philippines needed to be a current member when the investigation was opened. The Philippines’ withdrawal took effect in 2019, but the investigation was opened only in September 2021.
Why is the investigation, and not preliminary examination, the basis to start counting the timeline? The defense lawyers point to Article 13(c).
Article 13(c) says: “The Court may exercise its jurisdiction with respect to a crime…if the Prosecutor has initiated an investigation.”
For the lawyers, Articles 12 and 13 are clear language in the Rome Statute.
“No interpretation of Article 127(2) can trump the plain language of Article 12(2), which requires that, as a “pre-condition to the exercise of jurisdiction”, a State be contemporaneously a party to the Rome Statute,” said Kaufman and Jacobs’ submission.
“The simple fact is that the Republic of the Philippines was not a party to the Rome Statute in 2021,” said the submission which made many references to the two dissenting opinions in 2023 which believed that jurisdiction has been lost.
Other views
Contrary to these, a world expert on crimes against humanity told Rappler in an earlier interview, that “there’s a certain ambiguity” in the Rome Statute, and in that case, one should rely on jurisprudence of other international courts.
“And uniformly, in all cases, the International Court of Justice, the Inter-American Court of Human Rights, and the ICC have concluded that unless there’s a specific statutory bar, the rule is the court’s jurisdiction remains attached so long as, in the ICC case, there were some proceedings that were open and that the crimes were committed while the state was still a party to the Rome Statute,” said Professor Leila Sadat of the Washington University, a former special adviser to the ICC prosecutor on crimes against humanity.
The general Law of Treaties also says “unless the treaty otherwise provides or the parties otherwise
agree, the termination of a treaty…does not affect any right, obligation or legal situation of the parties created through the execution of the treaty prior to its termination.”
But for Duterte’s lawyers, there’s no need to rely on the Law of Treaties because they said, the Rome Statute is already so clear that “this reflects the principle of lex specialis, whereby specific provisions within a treaty override the general rules of the Convention.”
This submission is different from a request for an interim release. It asks for an outright dismissal of a case, and complete freedom for Duterte. – Rappler.com
