The International Criminal Court has cleared a key hurdle in the ongoing proceedings against detained former president Rodrigo Duterte, with the Pre-Trial Chamber I saying the ICC retains jurisdiction over the crimes against humanity case.
In a 32-page decision released on Thursday, the Chamber unanimously decided that the international tribunal has jurisdiction over the alleged crimes committed in the Philippines from Nov. 1, 2011 to March 17, 2019.
It rejected the challenge to jurisdiction filed by Duterte’s lawyers, who claimed that the ‘preconditions for the exercise of jurisdiction’ were not met when the chamber authorized the opening of the investigation in 2021.
At the time, the Philippines had already withdrawn from the Rome Statute, the treaty that established the ICC.
‘The Republic of the Philippines was no longer a State Party to the Rome Statute at that critical point in time,’ the defense said in its challenge to jurisdiction filed in May.
But in their decision, Judges Iulia Antoanella Motoc, Reine Adelaide Sophie Alapini-Gansou and Maria del Socorro Flores Liera ruled that the case was already ‘under consideration’ by the ICC prosecutor even before the country’s withdrawal took effect in 2019.
In February 2018, then ICC prosecutor Fatou Bensouda announced that her office would initiate a preliminary examination into the situation in the Philippines, particularly on killings related to the Duterte administration’s war against illegal drugs.
This prompted then president Duterte to announce the country’s withdrawal from the ICC, which took effect a year later.
For the Pre-Trial Chamber I, this move of the prosecutor already satisfied the preconditions set in the Rome Statute, which stated that a country’s withdrawal shall not ‘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.’
‘Contrary to the arguments of the defense, the Chamber does not accept that the preliminary examination is too informal in nature to encompass a matter that is ‘under consideration’ by the Court,’ the ruling read.
It specifically noted a ‘direct relationship’ between Bensouda’s announcement and the decision of the Philippines to withdraw from the Rome Statute, seen as an act to ‘avoid compliance’ that the specific provision was designed to prevent.
‘The Philippines situation is an example of a matter which was already under consideration by the Court… The Chamber therefore also rejects the arguments of the defense that the preliminary examination and the decision to authorize an investigation were different matters,’ the court ruled.
‘The Chamber therefore finds that the Court can continue to consider the alleged crimes committed in the Philippines that form the subject-matter of the present case,’ it added.
Rep. Leila de Lima of ML party-list said the decision is ‘most just,’ adding that the victims of extrajudicial killings are a step closer to attaining justice and accountability.
The decision removes a major challenge to the ongoing proceedings against Duterte, although pre-trial proceedings are still suspended pending the resolution of the last issue raised by the defense: its request to adjourn the proceedings due to the alleged medical condition of the former president that supposedly renders him unfit to stand trial.
Medical experts are expected to submit their report on Duterte’s fitness to stand trial by the end of the month, after which the court is expected to decide on whether to proceed with the confirmation of charges hearings.
Defense lawyer Nicholas Kaufman said they ‘anticipated this decision and will appeal it.’
More grounds
Former chief legal counsel Salvador Panelo advised Duterte’s legal team yesterday to include other grounds in its motion for consideration: the Rome Statute was never published in the Official Gazette and lack of complementarity.
‘It would appear that the defense team limited the theory on lack of jurisdiction after the country withdrew its membership and conducted an investigation two years after, which is beyond the prescriptive period,’ Panelo said at The Agenda forum in Quezon City.
‘Remember that the sovereignty of a country is not being waived outright. In this particular case, because we entered a treaty, they said we waived it but we have the principle of complementarity. What does it mean? The ICC can only intervene if, number one, the member-state has no capability to prosecute. Number two, if it has the ability, but refuses to prosecute. The defense failed to include the two grounds,’ Panelo added.
According to Panelo, the court only conducted a preliminary investigation amid contention of the ICC that the Philippines has still an obligation after its withdrawal.
‘You never started a formal investigation. You investigated formally only two years after. The preliminary examination should not be considered a formal investigation,’ he added.