ICC Appeals Chamber Seeks Further Arguments on Duterte Case Jurisdiction

The Appeals Chamber of the International Criminal Court (ICC) has directed the prosecution and the legal counsel representing victims of the Philippine drug war to submit additional arguments on the issue of jurisdiction in the crimes against humanity case against former president Rodrigo Duterte.

In a six-page order dated December 16, the Appeals Chamber instructed the Office of the Prosecutor, through the deputy prosecutor, and the Office of Public Counsel for the Victims (OPCV) to file “additional observations” by January 16.

The submissions will address specific legal questions related to the court’s authority to exercise jurisdiction over the case, which has been challenged by Duterte’s defense team.

According to the order, the Appeals Chamber seeks clarification on the “consequences” of Articles 12(2), 13(c), and 127 of the Rome Statute and how these provisions “interact” with each other in determining the ICC’s jurisdiction.

The Rome Statute, adopted in 2002, serves as the treaty that established the ICC and defines its powers and limitations.

Article 12 of the Rome Statute outlines the preconditions for the court’s exercise of jurisdiction, while Article 13 specifies the circumstances under which the ICC may exercise jurisdiction over crimes.

Article 127, meanwhile, addresses the effects of a state’s withdrawal from the ICC, including obligations that may continue even after withdrawal.

The Appeals Chamber also set January 23, or five working days after the submission deadline for the other parties, as the deadline for Duterte’s defense team to respond to the additional observations.

The latest directive stems from the appeal filed by Duterte’s lawyers on November 14 challenging an earlier ruling by the ICC’s Pre-Trial Chamber I (PTC I), which upheld the court’s authority to exercise jurisdiction over the former president.

The prosecution and the OPCV submitted their initial responses to the appeal on December 8.

“In the instant case, the Appeals Chamber, acting proprio motu under regulation 28 of the Regulations, considers it necessary for the proper disposal of the appeal for the parties and participants to address specific issues [that] have not been fully developed in the Impugned Decision and in the submissions presented before the Appeals Chamber thus far,” the order read.

The document was signed by Presiding Judge Luz del Carmen Carranza.

The Appeals Chamber also denied a request from the defense seeking permission to reply to the prosecution’s response to its appeal brief.

The defense had argued that it needed to address statements made by the prosecution, but the court ruled against granting leave for an additional reply.

The jurisdictional dispute is a key issue in the case. On October 23, PTC I affirmed that the ICC, based in The Hague, the Netherlands, has the authority to prosecute Duterte and, if necessary, hold him in custody.

The ruling was welcomed by families of drug war victims, who said it could pave the way for the case to proceed to full trial once pretrial matters are resolved.

Duterte is charged with three counts of murder as a crime against humanity. The charges relate to at least 49 killings of alleged drug users and pushers, which prosecutors say were carried out pursuant to a policy that formed part of the government’s anti-drug campaign.

The alleged crimes span Duterte’s tenure as mayor of Davao City and his later term as president of the Philippines.

In their appeal, Duterte’s lawyers relied heavily on Article 127 of the Rome Statute, arguing that the Pre-Trial Chamber “erred in law” when it ruled that the preliminary examination of drug war killings constituted a “matter under consideration” by the court.

The defense also disputed the interpretation that the term “court” under Article 127 includes the Office of the Prosecutor.

The defense further argued that the “object and purpose” of the Rome Statute do not allow the opening or continuation of an investigation after a state has withdrawn from ICC membership.

They also challenged the application of Article 127 as a “lex specialis,” or specific legal provision that overrides more general rules on jurisdiction.

Aside from the jurisdictional appeal, other issues remain pending before the ICC. These include a defense request to indefinitely suspend all pretrial proceedings on the grounds that Duterte is allegedly suffering from cognitive problems that limit his ability to fully participate in his defense.

The Appeals Chamber’s request for additional submissions indicates that the court is seeking a more detailed legal examination of how the relevant provisions of the Rome Statute apply to the unique circumstances of the Philippines’ withdrawal from the ICC and the continuation of proceedings related to alleged crimes committed while the country was still a member.

The outcome of the jurisdictional challenge is expected to have significant implications for the future of the case, as well as for the broader question of the ICC’s authority over alleged crimes committed by nationals of states that have since withdrawn from the court.