Former President Duterte’s lawyers are fighting back against the International Criminal Court, demanding his “immediate and unconditional release” in a bold legal challenge that questions the very foundation of the ICC’s authority over the Philippines.
The 38-page document submitted Thursday by defense lawyer Nicholas Kaufman argues that the ICC has no legal power to put Duterte on trial for alleged crimes against humanity linked to the controversial drug war that left thousands dead across the Philippines.
“The prosecutor has never demonstrated that the court was legally authorized to exercise jurisdiction after the Philippines’ effective withdrawal from the Rome Statute,” Kaufman stated in the challenge. His team claims all actions taken by the ICC against Duterte “lack legal foundation and should be nullified.”
The heart of their argument centers on the Philippines’ 2019 exit from the Rome Statute – the treaty that established the ICC. Duterte ordered the withdrawal after then-ICC Prosecutor Fatou Bensouda announced in February 2018 she would examine the drug war killings. Current prosecutor Karin Khan later continued the investigation.
Duterte’s defense team takes aim at Article 12 of the Rome Statute, which requires non-member states to “accept” and “cooperate” with the court. They argue the prosecution has “systematically confused jurisdiction and the preconditions to the exercise of jurisdiction.”
The lawyers also challenge the prosecution’s use of Philippine laws and court decisions, including a 2021 Supreme Court ruling that Duterte couldn’t escape the ICC probe by withdrawing from the Rome Statute.
But the legal fight isn’t happening in a vacuum. The defense cited President Marcos’ “written undertaking” that the Philippine government wouldn’t help the ICC “in any way, shape, or form,” suggesting an understanding that Duterte shouldn’t face trial at the Hague.
This stands in contrast to Marcos’ shifting positions. He first refused cooperation, claiming the Philippines was no longer bound by the Rome Statute. Later, he said his government wouldn’t block ICC investigators after Duterte openly challenged them to arrest him.
As this legal battle unfolds, the stakes couldn’t be higher – not just for Duterte, whose freedom hangs in the balance, but for thousands of Filipino families still seeking answers about loved ones lost in the bloody drug war that defined his presidency.
When asked about the defense’s claims, Presidential Communications Undersecretary Claire Castro maintained the challenge was simply “part of due process,” adding, “Let them be.” She acknowledged no knowledge of any letter from Marcos but reaffirmed that “the Philippines will not cooperate or intervene with the ICC’s mandate.”
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