Lawyer Nicholas Kaufman

MANILA, Philippines – Lawyers of former President Rodrigo Duterte on Thursday challenged the jurisdiction of the International Criminal Court (ICC) to try the former leader when the Philippines is no longer a member of the foreign tribunal. 

In a May 1 submission, lawyers Nicholas Kaufman and Dr. Dov Jacobs, counsels for Duterte, argued that the ICC is “not in a position to exercise jurisdiction in the Philippines situation after the country’s effective withdrawal from the Rome Statute. 

The lawyers highlighted that “the jurisdictional framework of the Rome Statute is clear: The State must be a State Party at the time of the exercise of the jurisdiction.” 

For the lawyers, establishment of the ICC jurisdiction or the lack of it must be preliminarily resolved first to “prevent the unnecessary expenditure of resources incurred by allowing a confirmation of charges hearing to proceed in the absence of any jurisdictional basis.” 

The Philippines, an ICC party since 2011 has filed a written notification of withdrawal from the Rome Statute – the treaty that created the tribunal on March 17, 2018 and took effect on March 17, 2019 during the time of the former president. 

“When the former Prosecutor filed her request, and the Pre-trial Chamber issued its decision, more than two years later, the preconditions to the exercise of jurisdiction could no longer be, nor were they, fulfilled,” Duterte’s lawyers said. 

They also highlighted that “the Prosecutor has never demonstrated that the Court was legally authorised to exercise jurisdiction after the Philippines’ effective withdrawal from the Rome Statute.”

“For its part, the Prosecution has consistently failed to justify why the Court should not apply the plain language of the Rome Statute. The Prosecution has, furthermore, systematically confused jurisdiction and the preconditions to the exercise of jurisdiction,” they added. 

Furthermore, the lawyers stressed the irrelevance or the inapplicability of the Art 127 (2) of the Rome Statute on withdrawal. 

Art. 127 (2) states that a state shall not be discharged of its obligations to the statute while it is still a party to it. 

In the document, Duterte’s lawyers asked the Pre-trial judges for his immediate release. 

“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,” said Duterte’s lawyers.