(UPDATE) THE lawyers of former president Rodrigo Duterte argued before the International Criminal Court (ICC) that while the tribunal may have jurisdiction stricto sensu (strictly speaking) over alleged crimes linked to his administration, it lacked the legal authority to exercise that jurisdiction when the investigation into the Philippines was authorized in 2021.
In a filing dated Jan. 23 submitted to the ICC Appeals Chamber, the lawyers responded to additional submissions on jurisdiction under Regulation 28, maintaining that the legal preconditions for the court to exercise jurisdiction were absent when the investigation into the Philippines situation was approved in September 2021.
They said the Philippines’ withdrawal from the Rome Statute, which took effect in March 2019, was decisive.
While the alleged crimes were said to have occurred when the country was still a State Party, the lawyers stressed that Article 12(2) of the Rome Statute required the state concerned to be a party at the time the court decided to exercise its jurisdiction, not merely at the time of the alleged acts.
Central to the defense’s argument was a distinction between the existence of jurisdiction and its exercise.
The filing asserted that while the ICC may have jurisdiction over certain crimes, persons and periods, it could only exercise that jurisdiction if the territorial or nationality requirements under Article 12(2) were satisfied.
Those requirements were no longer met once the Philippines’ withdrawal from the Rome Statute took effect.
The lawyers rejected the prosecution’s position that the opening of a preliminary examination before the withdrawal preserved the court’s authority.
They argued that a preliminary examination did not mean the exercise of jurisdiction under the Statute.
Instead, jurisdiction was only exercised upon the initiation of an investigation under Article 13(c), which required authorization from the Pre-Trial Chamber under Article 15.
That authorization, the lawyers noted, was granted more than two years after the Philippines had ceased to be a State Party.
The filing sharply criticized alternative interpretations advanced by the prosecution and the Office of Public Counsel for Victims (OPCV).
Duterte’s defense team dismissed what it described as a “compromise” approach as inconsistent with the plain language of the Statute, and derided grammatical arguments, suggesting that the present tense used in Article 12(2) could encompass past situations, calling such reasoning a distortion of the text.
It also sought to distinguish previous ICC rulings cited against Duterte.
The lawyers argued that the Burundi situation was not comparable because the investigation there was authorized before withdrawal took effect.
The Abd-Al-Rahman case, meanwhile, involved a United Nations Security Council referral and did not concern withdrawal from the Statute, they said.
Addressing Article 127 on withdrawal, the lawyers said it did not override or modify the requirements of Article 12.
It said Article 127(2) was not a lex specialis (special law) and did not create an exception allowing the court to exercise jurisdiction after a state’s withdrawal.
Accepting the prosecution’s interpretation would render part of Article 127(2) meaningless, they said.
In urging the Appeals Chamber — presided over by Judge Luz del Carmen Ibáñez Carranza, with Judges Tomoko Akane, Solomy Balungi Bossa, Gocha Lordkipanidze, and Erdenebalsuren Damdin — to adhere to a literal reading of the Statute, Duterte’s lawyers said the fight against impunity could not justify departing from the text.