Legal experts see slim chance for early dismissal of Du30 case
(Last of 2 parts)
With ample time between the first court appearance of former President Rodrigo Duterte at the International Criminal Court (ICC) on March 14 and the next stage of the pre-trial in September, his defense team can bring up petitions questioning the legality of his arrest to try to dismiss the charges against him as soon as possible.
Among these are petitions challenging the jurisdiction and admissibility, as well as a request for an interim release, according to Filipino lawyers with expertise in international law.
Duterte is facing allegations of murder as a crime against humanity for being an “indirect coperpetrator” in the killing of at least 43 suspected drug users and pushers during his ruthless war on drugs.
“Does the court have jurisdiction over him? And [he] can include not just his arrest, but also whether the withdrawal by the Philippines [from the Rome Statute] means that this case cannot proceed anymore,” human rights lawyer Ruben Carranza of the International Center for Transitional Justice told the Inquirer.
The issue of admissibility, on the other hand, refers to “whether the ICC should admit this case or allow proceeding that was already a case in the Philippines involving the same crimes,” he added.
“And if he does [question these], the Pre-Trial Chamber has to rule on those,” Carranza noted.
Technical issues
These contentious issues in the case of Duterte may require a technical interpretation of Article 127 of the Rome Statute, according to Dean Ralph Sarmiento of the College of Law at the University of St. La Salle, referring to the 2002 treaty that established the ICC.
Article 127 states that a withdrawal by a state party from the Rome Statute should not have any effect on its “cooperation with the court” over any criminal investigation or proceeding that had begun before the withdrawal took effect.
It should also not prejudice in any way “the continued consideration of any matter which was already under consideration by the court” before the country pulled out.
The Philippine government, upon Duterte’s directive, cut ties with The Hague-based court in 2018 and the withdrawal formally took effect in March 2019.
It was two years later, on May 24, 2021, that the ICC’s Office of the Prosecutor (OTP) sought authorization from the pre-trial court to start its probe into Duterte’s alleged crimes from Nov. 1, 2011, to Mar. 16, 2019, a period when the Philippines was still a member of the Rome Statute.
The Pre-Trial Chamber gave the go-ahead to initiate the investigation four months later.
Matter of interpretation
This is where the differing opinions come in, Sarmiento said in an ANC interview on Monday. “The investigations or the formal charges were filed after the withdrawal of the Philippines had already become effective. However, the other contentious point there is that the preliminary examinations conducted by the [OTP] were begun prior to the withdrawal of the Philippines.”
So at what point did the drug-related killings become “under consideration by the court” and how do you interpret such provision?
The Philippine government, in its notice of appeal before the ICC’s Appeals Chamber, asserted that it was holding “relevant investigation or prosecution” over similar crimes in connection with the drug war, and the prosecutor should halt any investigation as the country was no longer a Rome Statute party.
The Appeals Chamber, in a 3-2 decision on July 18, 2023, rejected the government’s argument.
The majority of the Appeals Chamber, however, only ruled on the admissibility, and not on the jurisdiction issue, pointing out that the contested Pre-Trial Chamber ruling “does not constitute a decision with respect to jurisdiction.”
“The wording of the provision used by the majority in that decision was that the matter was already under consideration by the [ICC] prior to the withdrawal,” said Sarmiento. “How do we interpret when you say (ICC)?”
‘Male captus, bene detentus’
Human rights lawyer Dino de Leon, an alumnus of The Hague Academy of International Law, does not think the Duterte defense team has a strong case should it challenge ICC’s jurisdiction on two grounds: Withdrawal and wrongful arrest.
“It is explicit in the Rome Statute that the withdrawal does not absolve the state party from obligations that it willingly assumed when it was still a state party,” he told the Inquirer in a phone interview.
Should they question Duterte’s arrest executed by Philippine authorities by virtue of the government’s compliance to the International Criminal Police Organization (Interpol), there are legal doctrines and domestic laws to back it up, he said.
De Leon pointed to Section 17 of Republic Act 9851, which covers crimes against humanity, a law signed in 2009 by then President Gloria Macapagal Arroyo, now a known ally of the Dutertes, stating that the government may surrender a suspect in the Philippines to the appropriate international court.
The principle of “Male captus, bene detentus,” which means “wrongly arrested, properly detained,” may also be invoked.
On interim release
Should an interim release be requested by the Duterte camp, factors to be considered include the “gravity of the offense,” the “influence” of the accused and his tendency to “tamper” with evidence, he said.
“The accusations against Duterte are the most heinous and horrendous crimes … And he’s a principal,” noted De Leon.
The ex-president’s “power” and “track record of bullying and making people afraid to come forward” could also be factored in as well, he said, noting the absence of a single case against him in the Philippines.
