ICC prosecutor, victims urge dismissal of Duterte appeal on court jurisdiction

The Office of the Prosecutor and the Office of Public Counsel for Victims (OPCV) have asked the International Criminal Court (ICC) Appeals Chamber to dismiss former President Rodrigo Duterte’ appeal of an earlier ruling that upheld the ICC’s jurisdiction over him.

The two offices made their respective calls in separate 22-page filings dated December 8.

In the pleading signed by Deputy Prosecutor Mame Mandiaye Niang, the Office of the Prosecutor expressed its objection to Duterte’s appeal of the ICC Pre-Trial Chamber I’s decision in October that rejected the former President’s challenge to the ICC’s jurisdiction.

“The Appeals Chamber should dismiss the appeal because it fails to show any error in the Decision warranting reversal. Each of the four grounds of appeal is incorrect. Consequently, the jurisdiction of the Court in this situation should be upheld, and proceedings in this case should continue,” the Office of the Prosecutor said.

In its 21-page Appeal Brief on Jurisdiction filed in November, Duterte’s lawyer Nicholas Kaufman laid down four grounds of appeal:

• that the ICC Pre-Trial Chamber erred in law by finding that Article 127 of the Rome Statute is lex specialis, which means that a special norm shall prevail over the general standard;
• that a preliminary examination is not a “matter under consideration”; 
• that the expression “court” does not include the Office of the Prosecutor;
• and that the Pre-Trial Chamber I erred in law by finding that the ‘object and purpose’ of the Rome Statute permitted the opening of an investigation even after a state party’s withdrawal.

The defense also urged the ICC Appeals Chamber to order the 80-year-old President’s “immediate and unconditional release” on grounds that there is no legal basis for the continuation of the proceedings against him.

The Office of the Prosecutor pointed out that Duterte’s legal team failed to show or point to the ICC Pre-Trial Chamber I’s errors in these grounds for appeals and said Duterte’s appeal should be dismissed.

The OPCV, represented by Principal Counsel Paolina Massidda, made a similar submission in urging the ICC Appeals Chamber to dismiss Duterte’s appeal on the ruling that affirmed the ICC’s jurisdiction over him.

The OPCV said it “opposes each ground of the Appeal, as well as the relief sought by the Defence in its entirety.”

“In the first ground of appeal, the Defence mispresents the Impugned Decision and fails to demonstrate that the Chamber did not adhere to the lex specialis principle. In the second and third grounds of appeal, the Defence’s arguments reflect mere disagreement with the Chamber’s findings. Therefore, all grounds of appeal raised by the Defence fail and must be rejected,” the OPCV said.

It pointed out that Duterte’s legal team “merely disagrees with the Chamber’s reasoning by repeating previously rejected arguments and failing to identify a legal error.”

“A mere disagreement with the conclusions of the Chamber is not enough to establish a legal error. Therefore, these arguments must also be rejected,” the OPCV said.

It also cited the ICC Pre-Trial Chamber I’s finding that the Philippines continued to engage with the ICC, and “lends further support to the interpretation that the Court retains jurisdiction.”

In particular, the OPCV recalled the Pre-Trial chamber I’s request to defer the investigation and its surrender of Duterte to the ICC early this year.

“In this case, the fact that the Philippines voluntarily surrendered Mr. Duterte clearly proves that - even six years after making its formal decision to terminate its membership to the Court – the State still considered itself to be bound by the Statute under article 127(2),” the OPCV said.

It called this a “deliberate act aimed at fulfilling its specific obligation arising from the Statute which in turn constitutes a discernible subsequent practice.”

Duterte is facing trial before the ICC for his alleged crimes against humanity in connection with his bloody war on illegal drugs during his term as President and as Davao City mayor. — JMA, GMA Integrated News