Duterte defense team seeks right to reply, citing ‘new arguments’ in ICC jurisdiction battle

THE LEGAL team for former President Rodrigo Roa Duterte has formally requested the International Criminal Court (ICC) Appeals Chamber for permission to file a reply to the prosecution’s response regarding the appeal on the court’s jurisdiction.

The defense, led by lawyer Nicholas Kaufman, asserts that the prosecution introduced “new and unexpected arguments” in its recent filing, particularly concerning the interpretation and application of several key provisions of the Rome Statute.

The request seeks leave to respond to the prosecution’s use of Regulation 28 and its arguments relating to Articles 12(2), 13(c), and 127(2) of the Rome Statute.

The dispute centers on whether the ICC retains jurisdiction over alleged crimes against humanity committed during the Philippines’ membership, given the country’s withdrawal from the Rome Statute, which took effect in March 2019.

Key points raised by the defense in their request include:

1. Pre-Trial Chamber’s Ruling: The defense acknowledges that the Pre-Trial Chamber (PTC) correctly ruled that the ICC cannot exercise jurisdiction once a State has withdrawn, unless an investigation had begun before the withdrawal took effect.
2. Error on Article 127(2): The defense argues that the PTC erred in applying Article 127(2) of the Rome Statute—which addresses obligations post-withdrawal—as a lex specialis (specific law) to permit late investigations.
3. Prosecution’s Shift in Reasoning: The defense claims the Prosecution avoided defending the PTC’s original reasoning and, instead, attempted to revive an earlier, rejected legal interpretation without formally appealing that interpretation.

New Argument on Regulation 28: By raising a new argument through the application of Regulation 28 of the Rules of Procedure and Evidence, the defense asserts it must be allowed to file a rebuttal to address this new basis for the Prosecution’s claims.

The defense stressed that the Appeals Chamber’s primary duty is one of legal interpretation, not of securing accountability at all costs. 

They also emphasized that any delay in initiating an investigation ultimately lies with the prosecution.

The Appeals Chamber will now consider the defense’s request for leave to file a reply, which could lead to further legal submissions in the high-stakes jurisdictional battle.