Duterte camp challenges ICC, appeals for immediate release

The camp of Former President Rodrigo Duterte has formally challenged the International Criminal Court (ICC), appealing for his immediate release and nullification of his case.

"Pursuant to Article 19(2)(a) of the Rome Statute,1 the Defence for Mr. Rodrigo Roa Duterte hereby respectfully submits a challenge to the exercise of jurisdiction by the International Criminal Court," Duterte's camp said in the document.

Duterte's counsel Nicholas Kaufman and associate counsel Prof. Dr. Dov Jacobs signed the challenge that was submitted on May 1.

“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,” Duterte’s lawyers said.

The 38-page challenge argued that a state must be a state party at the time of the exercise of jurisdiction and the Pre-trial Chamber authorized its investigation on September 15, 2021, two years after the country withdrew from the ICC.

The Philippines' withdrawal from the ICC Rome Statute took effect on March 17, 2019 after submitting a notice the previous year while the alleged crimes against humanity were committed during November 1, 2011 and March 16, 2019 – when the country was still a state party.

“The Prosecutor has never demonstrated that the Court was legally authorised to exercise jurisdiction after the Philippines’ effective withdrawal from the Rome Statute,” Duterte’s lawyers said.

The camp also argued the irrelevance of "irrelevance or inapplicability of Article 127(2) of the Rome Statute" in the former president’s case.

Article 127 of the Rome Statute states that a state's withdrawal does not affect the jurisdiction of the Court over crimes committed while the state was a party.

This is contrary to ICC spokesperson Dr. Fadi El Abdallah’s statement in an interview that the ICC did not lose its jurisdiction on the alleged crimes against humanity committed between November 1, 2011 and March 16, 2019.

“A withdrawal only affects the future. Meaning, that the ICC would not have jurisdiction for the future after the withdrawal became effective. But not for the crimes committed allegedly during the moment where the Philippines were still, back then, a state party,” he explained.

The camp urged the ICC pre-trial chamber to decide on the matter before September 23, 2025 when the confirmation of charges hearing was scheduled to avoid unnecessary expenditure of resources.

The former president – now a mayoral candidate for Davao City, was arrested for alleged human rights violations on March 11 at Ninoy Aquino International Airport after attending a political rally in Hong Kong.

His ‘war on drugs’ campaign reported 6,000 dead while human rights groups reported at least 20,000 killed.

‘Let them be’

Presidential Communications Office Undersecretary Claire Castro said on Friday that the challenge of Duterte’s camp is part of due process.

“Kung ang depensa nila ay walang jurisdiction ang ICC, then that’s part of due process, let them be,” she said.

When asked about the letters of President Ferdinand ‘Bongbong’ Marcos Jr.that stated uncooperation with the arrest of the former president, Castro said she could not verify it.

“Kahit siguro po walang letter, hindi naman po talaga tayo makikielam kung ano po ang magiging mandato ng ICC,” the Palace officer said.

The defense lawyers added in the challenge that Marcos had earlier made clear that former President Duterte should not be tried at the ICC.

Marcos previously said that the government was merely cooperating with the International Criminal Police Organization (Interpol) in enforcing the ICC’s arrest warrant against Duterte.