ICC prosecutor asks tribunal to dismiss Duterte's challenge of jurisdiction
The Office of the Prosecutor of the International Criminal Court has asked the tribunal to dismiss former President Rodrigo Duterte's challenge to the ICC's jurisdiction over his case.
Duterte is now detained in the The Hague Penitentiary on charges of crimes against humanity in connection with the killings under his war on drugs when he was mayor of Davao City and when he was president of the Philippines.
"Irrespective of the interpretation of articles 11 to 13, article 127(2) can only be correctly interpreted to preclude a withdrawing state party depriving the court of the exercise of its jurisdiction, if such a matter is already under consideration before the withdrawal becomes effective," the prosecution's submission dated June 10 and signed by deputy prosecutor Mame Mandiaye Niang.
"In this case, the prosecutor's initiation of a preliminary examination was sufficient for this purpose, both as a matter of law (given that a preliminary examination is a statutory proceeding, which is a precondition to opening an investigation) but in any event in the particular circumstances," it added.
"For all the reasons above, the challenge should be dismissed, and the court's exercise of jurisdiction over Mr Duterte should be affirmed," the prosecution said.
Article 127 (2) of the Rome Statute, which governs the ICC, reads, "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."
"Its withdrawal shall not affect any cooperation with the Court in connection with criminal investigations and proceedings in relation to which the withdrawing State had a duty to cooperate and which were commenced prior to the date on which the withdrawal became effective, nor shall it prejudice in any way the continued consideration of any matter which was already under considerationby the Court prior to the date on which the withdrawal became effective."
According to Duterte's lawyers, the preconditions for the exercise of jurisdiction in the situation of the Philippines were not met at the time the pre-trial chamber authorized the opening of an investigation on September 15, 2021.
"The Philippines' withdrawal from the Rome Statute became effective on 17 March 2019. When the former Prosecutor filed her request, and the pre-trial chamber issued its decision, more than two years later," Duterte's camp said in its submission.
"As a consequence, all procedural steps taken in the Situation and, subsequently, in the case against Mr Rodrigo Roa Duterte, lack legal foundation and should be nullified forthwith," it added.
The prosecution said that Duterte's defense said that the Rome Statute made the ICC's jurisdiction conditional not only on the Philippines' status as a state party when the alleged crimes were committed but also when the tribunal's exercise of jurisdiction was triggered according to Article 13(c) of the Statute.
The defense added that Article 127(2) allowed the court to be deprived of jurisdiction by a withdrawal in the present circumstances.
"The chamber should reject both defense arguments, which misinterpret the relevant provisions of the statute, and find that the court lawfully exercises jurisdiction over Mr. Duterte," the prosecution said.
The ICC's Office of the Public Counsel for Victims has also asked the tribunal to dismiss former President Rodrigo Duterte's challenge regarding the tribunal's jurisdiction.
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ICC Principal Counsel Paolina Massida pointed out that the Philippines' withdrawal has no legal effect as the prosecutor's preliminary examination started even before the withdrawal took effect.
'The preliminary examination conducted by the Office of the Prosecutor in the Situation in the Republic of the Philippines must be considered as 'a matter' that was 'already under the consideration of the Court' prior to the date on which the State's withdrawal became effective and thus the Court may exercise its jurisdiction over the case against Mr Duterte,' according to the 27-page document dated June 9. –NB, GMA Integrated News
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