Two arguments on jurisdiction of Duterte case
Jurisdiction over former President Rodrigo Duterte’s case in the International Criminal Court (ICC) hinges on whether the case was already “under consideration” before the Philippines’ withdrawal from the Rome Statute in March 2019.
Lawyer and retired Naga City Regional Trial Court Judge Soliman Santos Jr. argued that this was a “pivotal legal issue” that will determine whether the ICC can proceed with its prosecution of Duterte for crimes against humanity.
The former judge sent the legal opinion to the Inquirer after Duterte’s lawyers questioned the jurisdiction of the ICC, a strategy similar to other cases brought to the ICC pretrial chamber in the past.
The Philippines withdrew from the Rome Statute, the 2002 treaty establishing the ICC, on Duterte’s orders after then-ICC Prosecutor Fatou Bensouda announced in February 2018 a preliminary examination into the drug war.
Interpretations
Santos said the question of ICC jurisdiction rests on how Article 127(2) of the Rome Statute, which states that “a State shall not be discharged, by reason of its withdrawal, from the obligations arising from this Statute while it was a Party to the Statute, including any financial obligations, which may have accrued.”
Santos said there are two possible interpretations of when a matter is “under consideration”: when the Office of the Prosecutor (OTP) began its preliminary examination on Feb. 8, 2018 (before the withdrawal) or when the PTC authorized the investigation on Sept. 15, 2021 (after the withdrawal).
The former judge argued that the OTP is considered an “organ of the Court,” making its February 2018 preliminary examination sufficient to say the “matter … was already under consideration by the Court” before the withdrawal took effect.
“The ICC should thus retain jurisdiction over the [Philippine] situation,” he added.
