FORMER President Rodrigo Duterte’s legal defense team, led by Atty. Nicholas Kaufman, has intensified his challenge against the International Criminal Court’s (ICC) authority, arguing that the tribunal lacks the legal basis to exercise jurisdiction over the Philippines following its 2019 withdrawal.
In a comprehensive filing submitted to the ICC Appeals Chamber on Jan. 23, 2026, the defense maintained that while the Court may have had theoretical jurisdiction over alleged crimes committed while the Philippines was a State Party, it lost the power to act on that authority once the country officially exited the Rome Statute.
The crux of the defense’s 12-page submission lies in the distinction between possessing jurisdiction and exercising it.
According to the filing: Article 12(2) Constraints: The defense argues that under Article 12(2) of the Rome Statute, a state must still be a Party at the time the Court acts to exercise its jurisdiction, not just when the alleged crimes occurred.
The lawyers contend that a “preliminary examination” does not constitute an exercise of jurisdiction.
They argue that jurisdiction is only formally triggered by an authorized investigation under Article 13(c), which, in the Philippines’ case, did not occur until September 2021—two years after withdrawal.
“The ICC may have abstract jurisdiction over certain crimes… but can only exercise that jurisdiction if the territorial or nationality requirements are satisfied at the relevant time,” the filing stated.
Distinguishing the Burundi precedent
The defense also moved to distance the Philippines’ situation from the Burundi case, often cited by the Prosecution to justify continued jurisdiction.
Kaufman’s team noted that in Burundi, the investigation was authorized before the withdrawal took effect, whereas the authorization for the Philippines situation came well after its departure was finalized.
Procedural justice vs. impunity
Addressing the Prosecution’s goal of ending impunity, the defense emphasized that the noble pursuit of justice does not permit “stretching” the Rome Statute beyond its plain meaning.
They further argued that the Prosecution must “accept responsibility” for failing to initiate an investigation within the one-year window before the withdrawal became effective in March 2019.
Duterte remains in ICC custody in The Hague after his arrest in March 2025.
The Appeals Chamber, presided over by Judge Luz del Carmen Ibáñez Carranza, is currently reviewing these jurisdictional arguments alongside submissions from the Prosecution and victims’ counsel.
