The jurisdictional question in the case against former president Rodrigo Duterte is now emerging to be a crucial bump that the prosecution must hurdle to proceed, and at the heart of the problem is the two-year process it took the former prosecutor to request court authorization to open the investigation.
Duterte announced the withdrawal of the Philippines from the International Criminal Court (ICC) in March 2018, and under the Rome Statute, the withdrawal is supposed to take effect one year after — which it did in March 2019. Former prosecutor Fatou Bensouda opened the preliminary examination, the lowest standard stage, only in February 2018, so it took her three years, or in June 2021, to request for an authorization to open the higher-standard investigation.
Three months after her request, the pre-trial chamber gave her the authorization in September 2021, or more than two years after the effective withdrawal in March 2019. (Check our timeline here.)
In a column on the Philippine Daily Inquirer, former Philippine chief justice Artemio Panganiban wrote that this went beyond what he said was a two-year prescriptive period. Panganiban claimed that “under the Rome Statute, the ICC’s Office of the Chief Prosecutor (OCP) has two years from the effective date of a state’s withdrawal to conduct its preliminary examination and to apply in the three member ICC Pre Trial Chamber (PTC) for authority to conduct an official investigation.”
However, there are no explicit provisions in the Rome Statute that provide for a two-year prescriptive period for the Office of the Prosecutor (OTP).
“There is nothing in the Rome Statute that explicitly states that there is a two-year limit for the Office of the Prosecutor to commence its investigations on Crimes Against Humanity. In fact, it is clear in Article 29 of the Rome Statute that ‘The Crimes within the jurisdiction of the Court shall not be subject to any statute of limitations,'” said Dino de Leon, director of the Human Rights and People Empowerment Center.
The closest reference to a time limit was when two judges in the appeals chamber dissented in July 2023 to allow the Philippine investigation to continue, believing the jurisdiction had been lost.
For dissenting judges Perrin de Brichambaut and Gocha Lordkipanidze, the one-year period for a withdrawal to take effect “is sufficient for the Prosecutor to conduct his preliminary examination and request a pre-trial chamber to authorize the commencement of the investigation, and for the pre-trial chamber to rule upon such a request.” When the appeals chamber voted 3-2 to let the investigation continue, they skipped the jurisdiction question.
“While I am happy to see that the former Chief Justice of the Supreme Court of the Philippines supports the defense view that the International Criminal Court is devoid of jurisdiction and cannot try former President Duterte, I do not wish to engage in satellite litigation on the matter nor pass comment on the former Chief Justice’s own unique reasoning. We will, of course, fully argue the matter before the Court in The Hague at the appropriate time,” Duterte’s lead counsel Nicholas Kaufman told Rappler in a message on Tuesday, March 25.
This dispute arises from the varying interpretation of what Article 127 of the Rome Statute says, the pertinent parts are in bold for the reader’s appreciation:
“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 consideration by the Court prior to the date on which the withdrawal became effective.”
Interpretation of Article 127
The two dissenting judges believe that the process which will not be affected by a withdrawal is one that had the involvement of the court itself, and not just the prosecutor. In the ICC process, that would be the first authorization by the pre-trial chamber to open an investigation. In the Philippine case, when the withdrawal became effective, only the preliminary examination by the prosecutor had begun.
ICC spokesperson Fadi El Abdallah pointed Rappler to the September 2021 decision of the pre-trial chamber authorizing the opening of the investigation.
“According to the ICC Pre-Trial Chambers jurisprudence, related to Burundi and to the Philippines, a State Party’s withdrawal from the Rome Statute does not affect the Court’s exercise of jurisdiction over crimes committed prior to the effective date of the withdrawal of a State from the Rome Statute. The Court’s exercise of such jurisdiction is not subject to any time limit,” El Abdallah told Rappler in a message.
Burundi was the first country to withdraw from the Rome Statute, and back then it presented a real dilemma to the Court because had its withdrawal removed the ICC’s jurisdiction, it would have been a signal to bad actors that withdrawal can put them beyond the reach of the Court. The problem with a Burundi comparison is that the prosecution was able to secure court authorization to open an investigation two days before Burundi’s withdrawal became effective.
The two dissenting judges believed then that it was only fair to interpret Article 127 this way because
“without such limitations, the Court’s jurisdiction would stretch to an extent that would defy the assurances and guarantees to the States embedded in the Statute. This could have negative repercussions for the entire Court’s system.”
De Leon said it is “unreasonable and contrary to the purpose of the ICC” to “expect a hurried investigation.”
“Complainants are usually afraid to speak up or to come out, and evidence are buried as the state is usually involved. This number that is from thin air encourages despots to withdraw from the statute and bury evidence for whatever it takes for just at least two years. Indeed, this is not how you defeat the most egregious of crimes,” said De Leon.
Kaufman earlier told Rappler the case has “shaky jurisdictional basis.”
“Very technical for Filipinos, but I think it’s important to say that this is a substantial argument that I’m almost certain will be raised by Rodrigo Duterte’s lawyers. And they will be raised as soon as possible. They will be raised in the next couple of weeks and they will be raised before the September 23 confirmation of charges hearing,” said Ruben Carranza, a senior expert at the International Center for Transitional Justice, in an earlier Rappler interview.
“It’s important to already rule on it because if the court were to say it has no jurisdiction, then there will be no trial,” Carranza added.
– Rappler.com
READ OTHER STORIES ON DUTERTE IN THE HAGUE:
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- What to expect in the 6 months before Duterte’s ICC pre-trial
- Duterte in The Hague: Medialdea ill, Kaufman prepares ‘strong defense’
- Duterte’s arrest was ‘by the book,’ within ICC’s liberal rules — experts