Duterte in The Hague: Will new lawyer beef up jurisdiction challenge?

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Dov Jacobs, who joins the Duterte defense team, is listed as an associated tenant of the same British firm as the Marcos government's foreign lawyer who argued against jurisdiction in 2023

MANILA, Philippines – The latest addition to the defense team of former Philippine president Rodrigo Duterte is French international criminal lawyer Dov Jacobs, whose previous views on jurisdiction favoring the former president’s case, had been cited by the dissenting opinion in 2023.

Jacobs, a known international law commentator, had written in 2017 on his blog that a country’s withdrawal from the ICC will not take away jurisdiction only if the investigation had already been opened before the withdrawal took effect. That is not what happened in the Philippine case because only the low-threshold preliminary examination had opened beforehand. The withdrawal took effect in 2019, and investigation was opened only in 2021.

Jacobs’ blog was actually one of the footnote sources of the two dissenting judges (they lost to the majority) of the appeals chamber in 2023, who believed that the timeline of the Philippine case removed ICC jurisdiction.

Rappler reached out to Jacobs to ask whether he would bring this jurisdictional argument to the defense, but he deferred to the lead counsel, Nicholas Kaufman. Kaufman had earlier told Rappler they would challenge jurisdiction “in the near future.” Jacobs was appointed associate counsel to Duterte on April 3.

Jurisdictional issue

In all the majority decisions so far of the chambers of the ICC on the Philippine case, judges are of the view that as long as the alleged crimes were committed while the Philippines was a member of the ICC, the court retained jurisdiction.

Article 127 of the Rome Statute says the withdrawal shall not affect “any matter which was already under consideration by the Court prior to the date on which the withdrawal became effective.” The general understanding was that because the preliminary examination was started before the withdrawal, it can continue even after the withdrawal.

Jacobs believes that the “matter” which shall not be affected is investigation, and not the preliminary examination.

“I don’t believe a Preliminary Examination initiated unilaterally by the Office of The Prosecution, with no particular applicable legal framework and no direct legal consequences can decently be considered as a ‘matter already under consideration by the Court,'” wrote Jacobs in 2017, an article cited by the dissenting judges.

When Duterte was arrested, Jacobs wrote on LinkedIn that while he notes that the chambers had ruled that the investigation can be opened after withdrawal, “I continue to believe that this decision is legally erroneous and results from a confusion between ‘jurisdiction’ and ‘exercise of jurisdiction’, which is in plain contradiction with the provisions of the Rome Statute and its logic.”

Leila Sadat, a crimes against humanity expert who was special adviser for this crime to the ICC prosecutor until 2023, believes that as long as preliminary examination was triggered before withdrawal, jurisdiction is preserved.

Speaking to Rappler on Thursday, April 10, Sadat said Article 127 of the Rome Statute has “a certain degree of ambiguity,” and in that event, interpretation of it must be sourced from other treaties and jurisprudence from 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 Sadat, the chair of the crimes against humanity initiative of the Washington University School of Law.

Who is Dov Jacobs?

Jacobs is listed as an associated tenant, or a barrister qualified in a non-UK jurisdiction, of British law firm 9BR Chambers. This is the same firm of Sarah Bafadhel, the foreign external lawyer hired by the Marcos government in 2023, and who was instrumental in almost winning the appeals decision in June 2023. The narrowly won 3-2 appeals gave oxygen to the jurisdiction question, and provides an opening to the Duterte defense team now.

Jacobs was a defense counsel of former Côte d’Ivoire president Laurent Gbagbo in the latter’s own ICC crimes against humanity case that ended with acquittal.

Jacobs also worked with the International Association of Jewish Lawyers and Jurists (IJL) to argue via submission to the International Court of Justice (ICJ) that Israel’s “presence” in occupied Palestinian territories was a mere exercise of its power of self-defense in 1967. That proceeding — a request for an advisory opinion — resulted in the ICJ saying Israel’s occupation of Palestinian territories and settlements is illegal. The ceasefire in Gaza has not abated bombings and killings.

Kaufman, the lead counsel, is British-Israeli and worked as a prosecutor in Jerusalem. Vice President Sara Duterte has once said Kaufman was her choice.

Kaufman had earlier said he seeks to terminate Duterte’s case even before the confirmation of charges hearing, scheduled for September 23.

– Rappler.com