The Hague-based International Criminal Court has affirmed its jurisdiction over the crimes against humanity case against former president Rodrigo Duterte, effectively clearing one key hurdle for the continuation of the ongoing proceedings related to the extrajudicial killings under his administration’s war on drugs.
In a 32-page decision dated Oct. 23, the ICC Pre-Trial Chamber I judges unanimously ruled that the court retains jurisdiction over the alleged crimes committed from Nov. 1, 2011 until March 16, 2019, when the Philippines was still a member of the ICC.
This decision rejected the argument of Duterte’s lawyers that the court cannot exercise its jurisdiction because the Philippines was no longer a state party when the investigation into Duterte’s war on drugs was authorized in September 2021.
Duterte’s lawyers claimed that Article 127 of the Rome Statute, which explains a country’s obligations following its withdrawal, does not apply to the Philippines’ case.
The cited legal provision specifically states that a country’s withdrawal should not affect “the continued consideration of any matter which was already under consideration by the court” before the effectivity of its departure from the Rome Statute, the treaty that created the ICC.
In February 2018, a month before the Philippines notified ICC of its withdrawal, the prosecution team ordered a preliminary examination of alleged crimes happening under Duterte’s tenure.
According to Duterte’s lawyers, these preliminary examinations should not be included in “any matter… under consideration” pertained to in Article 127. The PTC, however, said that the phrase is broad, general and not limited to specific phases of the proceedings like an investigation or a trial.
“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 decision read.
It also added that the term “the court” pertains to the ICC as an institution and therefore includes the Office of the Prosecutor as one of its four organs, rejecting the defense team’s claim that the term refers only to the ICC’s judicial chambers.
The three-member PTC emphasized that it would be “entirely against the object and purpose” of the Rome Statute to interpret Article 127 in a way that enables a state party to “evade its responsibilities” by withdrawing once alleged crimes are being examined.
“For all of the above reasons, as a result of the prosecution’s preliminary examination having commenced prior to both the Philippines depositing its written notification of withdrawal from the statute and the date on which that withdrawal became effective, the chamber finds that the court can exercise its jurisdiction in the present case over the crimes alleged against Mr Duterte,” the decision read, further rejecting the defense team’s request to defer issuance of the ruling on this particular matter.
The ICC decision on jurisdiction followed its Oct. 10 decision rejecting the request of Duterte for an interim release.
ICC Assistant to Counsel Kristina Conti noted that following the PTC’s affirmation of its jurisdiction over Duterte’s case, the remaining “major issue” it needs to resolve now is his fitness to stand trial.
The defense team initially requested the ICC to indefinitely suspend all pre-trial proceedings due to Duterte’s supposed cognitive problems.
While the judges have not agreed to this request, the confirmation of charges hearing initially scheduled for Sept. 23 was postponed and the ICC set a limited period to determine the former president’s fitness to stand trial.
Reports from the medical panel directed to evaluate Duterte’s health are due on Oct. 31, while parties involved are ordered to comment on or before Nov. 5.
“The victims hope that a decision can be made within the year,” Conti said.