Duterte’s defense hangs on ICC jurisdiction

As we return to normal after the elections, there’s one thing that will remain important to us: the historic case against former president Rodrigo Duterte at the International Criminal Court (ICC) where he is charged with the crime against humanity of murder.

Duterte’s defense lawyers are doing all they can to get their client out of a trial. They want to extricate him from what could be years of detention should a trial take place. 

On the first day of May, Nicholas Kaufman and Dov Jacobs went on the offensive and filed two pleadings. One asked the ICC to release Duterte because “there is no legal basis for the continuation of the proceedings…” referring to the absence of jurisdiction. The other wanted two judges of the pre-trial chamber to recuse themselves.

On jurisdiction, the defense team’s main argument hinges on the timing of the investigation on the drug war. They say that a full-fledged probe — not just a preliminary examination — should have started before the Philippines pulled out from the Rome Statute in 2019.  In our case, the ICC prosecutor began its investigation two years after the withdrawal of the Philippines became effective.

A bit of background: When President Ferdinand Marcos Jr. was still cozy with the Dutertes, he went all out in his support of his predecessor. The Marcos government poured resources on a UK-based law firm to prevent the ICC from investigating Duterte, questioning the court’s jurisdiction over the Philippines.

This led to a majority decision in July 2023 by the ICC appeals chamber, with two dissenting, to let the investigation proceed. The dissenting opinions have given Duterte’s defense team ammunition. 

While it was Marcos’s decision to surrender Duterte to the ICC, it was his earlier move to protect the former president that has led to the question on jurisdiction — an argument the defense is using to save their client. After all, it was the Marcos government’s appeal that got the two dissenting votes. (One of the dissenting judges has since retired.)

The big takeaway in leadership is this: Situations that take you to the edge of the cliff arise when decisions are made based on personal interest, not on a deep-seated conviction to seek justice and abide by international law. 

Two judges remain

The second petition — referred to as an “Invitation” — asked Judge Reine Adelaide Sophie Alapini-Gansou and Judge Maria del Socorro Flores Liera to recuse themselves from the case, specifically on the issue of jurisdiction. Why? Because of their “perceived bias,” according to Kaufman and Jacobs.

The defense team based their petition on an earlier ruling of both judges. They were referring to a September 2021 decision by a three-person pre-trial chamber, which included Alapini-Gansou and Flores Liera, that gave the green light to the Prosecution to investigate the Philippines.

It was a unanimous decision. They wrote “…there is a reasonable basis for the Prosecutor to proceed…in the sense that the crime against humanity of murder appears to have been committed, and that potential case(s) arising from such investigation appear to fall within the Court’s jurisdiction.”

Fast forward to 2025. These same two judges are part of the pre-trial chamber hearing the Duterte case, presided by Judge Iulia Antoanella Motoc. Last May 6, the Motoc-led chamber dismissed the “Invitation for Excusal” and said that a judge’s “excusal…may only be sought by the concerned judge directly before the Presidency…”

Failing to get an excusal, Kaufman now wants them disqualified, asking the ICC Presidency to do so “to ensure the autonomy and irreproachability of the judges…” The Presidency is composed of Judge Tomoko Akane, president; Judge Rosario Salvatore Aitala, first vice president; and Judge Alapini-Gansou. In a “Corrigendum” or correction filed last week, Kaufman also wants Alapini-Gansou disqualified from deciding on his request. 

Let’s see how this plays out.

More importantly, it is the decision on Kaufman’s jurisdiction challenge that will matter. We wait for it with bated breath, a nail-biting moment. 

This should be released before the scheduled pre-trial “confirmation of charges” in September.

Philippines lost

Let’s rewind a bit.

During their honeymoon period, the Marcos government came to the robust defense of the old Duterte, arguing two core issues before the ICC: complementarity and jurisdiction.

It continued the tack taken by the Duterte government in late 2021, when it asked the ICC to defer any probe saying that the domestic judicial mechanisms were working. This came after the ICC prosecutor concluded a three-year “preliminary examination” and was moving to the next step of starting a full investigation.

That was the first shield, that a probe of policemen involved in the drug war was taking place and that cases against them were going to be litigated. As such, the ICC should step aside and let the Philippines’ judicial proceedings take their course. The principle of complementarity states that as long as a country conducts genuine proceedings that are substantially similar to the ICC’s, the court must discontinue its actions.

After seven months without seeing any progress, in June 2022, the Prosecutor asked the pre-trial chamber to continue its investigation. This was Duterte’s last month in office. But it was only much later, in the beginning of 2023, when the Prosecutor was allowed to go on with its investigation.

Soon after, in February 2023, Solicitor General Menardo Guevarra hired international criminal law expert Sarah Bafadhel of the UK-based law firm 9BR Chambers to make the case for the Philippines. At the time, the Marcos-Duterte partnership was still in full bloom.

However, the Philippines lost on the complementarity issue in the pre-trial chamber.

The Marcos government did not give up. Bafadehl and Guevara appealed to the ICC in March 2023 and included another argument: that the court no longer had jurisdiction  over the Philippines since our country opted out of the Rome Statute in 2018 (which took effect a year later).

Again, the Philippines lost, including on the issue of jurisdiction. 

Bad politics yields good outcome

As the ICC prosecutor resumed its investigation, something changed in the Philippines. The political winds started to blow in a different direction as the alliance between the Marcoses and Dutertes was fraying.

Marcos changed the conversation from a no-engagement with the ICC to a possible rejoining — until the momentous arrest of Duterte in March and his swift transfer to the Scheveningen Prison.

The epic Marcos-Duterte battle caught the ICC in its maelstrom. Sad to say, it had to take bad dynastic politics for the Marcos government to take the path to justice.

Let me know what you think. You can email me at marites.vitug@rappler.com

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