DEFENSE lawyers of former president Rodrigo Duterte have again raised the issue of the International Criminal Court’s (ICC) jurisdiction to try their client as they pushed for an end to proceedings related to the crimes against humanity case filed against him.
In their latest submission dated July 10, defense counsels Nicholas Kaufman and Dov Jacobs reiterated the arguments in their May 1, 2025 submission that the Pre-Trial Chamber 1 has lost its jurisdiction to try their client following Manila’s withdrawal from the Rome Statute which became effective in 2019.
As it no longer has jurisdiction over Duterte, they insisted that the tribunal should immediately order his immediate release from detention.
Duterte was arrested and turned over to the ICC on March 11 this year.
The defense team reiterated their arguments in response to the Office of the Prosecutor’s earlier submission asking the ICC to junk the defense’s jurisdictional challenge.
In the same submission, Duterte’s legal team accused the prosecution of delaying the disclosure of key materials, which they said are essential to their jurisdictional challenge.
“The prosecution’s failure to initiate [REDACTED] goes beyond mere oversight. Such willful neglect palpably impeded the defense’s preparation of the jurisdictional challenge,” they said, adding that the “inaccessibility of these materials… prevented the defense from (REDACTED), as can now be disclosed, irreparably prejudices the prosecution’s case.”
They also said that if the prosecution did not delay the disclosure of such materials, pre-trial chamber Judges Reine Adelaide Sophie Alapini-Gansou and Maria del Socorro Flores Liera might even have reconsidered their decision not to inhibit from handling the case.
“The newly revealed information (REDACTED) adds a totally new dimension to their decision-making process, which should now be exercised in the defense’ favor,” they added.
Duterte’s team also reiterated its arguments that the ICC cannot investigate acts committed in a state that is no longer a party to the Rome Statute at the time jurisdiction is exercised.
Duterte withdrew the Philippines from the Rome Statute in 2018, with the withdrawal formalized a year after.
The prosecution has argued that the cases against Duterte stemmed from extrajudicial killings perpetrated when he was still mayor of Davao City and up to the time he become president – when Manila was still a signatory to the Rome Statute and prior to its withdrawal.
The defense said: “Put simply, if the State in question is not a State party contemporaneously with the exercise of jurisdiction, then no investigation may be initiated and whatever steps were taken during the preliminary investigation lack consequence.”
“The Philippines’ withdrawal from the Rome Statute became effective on March 17, 2019. When the former prosecutor filed her request, and the Pre-trial Chamber issued its decision more than two years later, the preconditions to the exercise of jurisdiction could no longer be, nor were they, fulfilled,’’ it added.
Duterte’s defense team also said that the “fight against impunity” cannot warrant an inappropriate application of the Rome Statute.
Citing past rulings, including the Katanga case, Duterte’s defense team argued that “the pursuit of accountability cannot prioritize victims’ expectations over a suspect’s right to legal propriety and due process.”
“To be clear, the Trial Chamber in Katanga specifically found that the ‘fight against impunity’ cannot justify an interpretation of the Rome Statute inconsistent with plain language. The object and purpose of the Rome Statute equally enshrines fundamental rights such as those of an accused to due process and a fair trial under Article 67. These rights are in no way subservient to the principle of accountability, as further noted by Judge Van den Wyngaert in Katanga,” the defense said.
The defense also cited the principle of complementarity and ongoing domestic proceedings that should be taken into account by the ICC in the case of Duterte.
“Mr. Duterte has never expressed a desire to shirk accountability. Quite the opposite. Upon arrest, Mr. Duterte had the following to say: If I committed a sin, prosecute me in Philippines court, with Filipino judges, and I will allow myself to be jailed in my own nation,” the defense added.
With this, Duterte’s defense team said the Pre-Trial Chamber should find “that there is no jurisdictional basis for the continuation of the proceedings against Mr. Duterte and to order his immediate and unconditional release.”
Duterte is set to appear before the Pre-Trial Chamber on September 23, 2025 for the confirmation of the charges against him.
‘NO GREAT SURPRISES’
Meanwhile, Kaufman said there was no great surprises in the prosecution’s evidence against his client.
He made the remarks as the prosecution recently submitted its eleventh and twelfth set of evidence containing a total of 2,135 documents.
“I’m not entitled to discuss exactly what the prosecution has disclosed to us, nor am I going to tell you what defense strategy is and what Mr. Duterte’s reaction to those items of evidence exactly is. However, what I can tell you is that, as far as the defense is concerned, there are no great surprises here,” Kaufman told GMA News in an interview.
He said he and his team composed of nine people are reviewing the prosecution’s documents.
He added they are working towards the September 23, 2025 confirmation of the charges hearing against the former president.
In the same interview, Kaufman said he and his team acknowledge initiatives calling for Duterte’s interim release from detention, including the proposed Senate resolution authored by Sen. Alan Peter Cayetano calling for a house arrest on the former president.
“I think that any initiative by any Filipino to bring the former president back home [is welcome], whether it be in the Philippines embassy – I’m not sure whether that would be possible given the current administration – or whether it be just back home to the place where he grew up, to the place where he wants to pass away, God forbid that it be many years in the future,” Kaufman added.
IN GOOD HEALTH
At the same time, Kaufman said Duterte remains in good health and is in good spirit despite his detention.
“When I say that he’s in good spirits, I’m talking about a man who’s 80 years-old and has all the medical conditions, mental conditions, and psychological conditions that accompany a person of that age. He’s been in prison for almost four months now,’’ he said.
The ICC has not issued a report or update on Duterte’s condition.
Duterte’s eldest daughter, Vice President Sara Duterte over the weekend denied a viral photo supposedly showing her father as bedridden.
Duterte’s former wife, Elizabeth Zimmerman, earlier said he is “skin and bones” though she assured the Filipino people that he is healthy for his age.
