Duterte seeks prompt release, says ICC has no jurisdiction
MALAYBALAY CITY (MindaNews / 3 May) – Former President Rodrigo Duterte has formally asked the International Criminal Court to drop the case against him, arguing “the court is not in a position to exercise jurisdiction” after the Philippines’ effective withdrawal from the Rome Statute.
The submission to the ICC on May 2 filed by Duterte’s lawyers Nicholas Kaufman and Dov Jacobs said, “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 and to order his immediate and unconditional release.”
“For the sake of judicial efficiency, the Defence submits that this challenge should be resolved as a preliminary matter. Such an approach will prevent the unnecessary expenditure of resources incurred by allowing a confirmation of charges hearing to proceed in the absence of any jurisdictional basis,” the submission said in its introductory part, which means the defense wanted the issue resolved before the confirmation of charges hearing scheduled on September 23.
It cited that the Pre-Trial Chamber granted the Prosecutor an authorization to open an investigation only on 15 September 2021, two years after the Philippines has ceased to be an ICC member. It argued that the Prosecutor can no longer open an investigation once a country’s withdrawal has become effective.
In its 2021 decision to open an investigation, the Pre-Trial Chamber said:
“While the Philippines’ withdrawal from the Statute took effect on 17 March 2019, the Court retains jurisdiction with respect to alleged crimes that occurred on the territory of the Philippines while it was a State Party, from 1 November 2011 up to and including 16 March 2019. This is in line with the law of treaties, which provides that withdrawal from a treaty does not affect any right, obligation or legal situation created through the execution of the treaty prior to its termination…The Court’s exercise of such jurisdiction is not subject to any time limit, particularly since the preliminary examination here commenced prior to the Philippines’ withdrawal.”
In granting the Prosecution’s arrest warrant application [against Duterte], the Pre-Trial Chamber invoked Article 127(2) of the statute, which states, “…withdrawal shall not affect any cooperation with the Court in connection with criminal investigations and proceedings in relation to which the withdrawing State had a duty to cooperate and which were commenced prior to the date on which the withdrawal became effective, nor shall it prejudice in any way the continued consideration of any matter which was already under consideration by the Court prior to the date on which the withdrawal became effective.”
The defense’s submission also cited that “no less than the incumbent President of the Philippines, Ferdinand Marcos Jr, has impliedly accepted, for jurisdictional reasons, that former President Duterte should not be tried at the International Criminal Court. In an exchange of letters, President Marcos even gave a written undertaking to the effect that his government would not ‘assist the ICC, in any way, shape or form.”
The defense was referring to the letter dated 15 December 2023 from Marcos to Vice President Sara Duterte, the ex-President’s daughter, assuring her that he “will not assist the ICC, in any way, shape or form.”
Marcos was responding to the Vice President’s letter dated 4 December 2023 to him and similar letters to Justice Secretary Jesus Crispin Remulla and Solicitor General Menardo Guevarra concerning the current administration’s stance on the investigation being conducted by the ICC at the time.
Duterte is facing charges of crimes against humanity of murder for deaths linked to his bloody “war on drugs.” He was arrested last March 11 based on an ICC warrant and flown to The Hague, Netherlands, the seat of the court. (H. Marcos C. Mordeno/MindaNews)
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