Jurisdiction ruling fuels Duterte judge challenge at ICC

Former President Rodrigo Duterte is presented via video link in this screengrab file photo.

MANILA, Philippines — The defense team of former president Rodrigo Duterte is determined to alter the composition of the Pre-trial Chamber 1 that is handling his case of crime against humanity.

From inviting Judges María del Socorro Flores Liera and Reine Adélaïde Sophie Alapini-Gansou to recuse themselves from the proceeding, this time, they filed a “Corrigendum to Request for Disqualification” before the International Criminal Court (ICC) Presidency.

This move follows a previously denied “invitation” for the judges to recuse themselves, which the defense clarifies was a gesture of courtesy and deference, not a formal legal demand.

READ: Defense team of Duterte loses appeal to excuse 2 ICC judges

The core of the defense’s argument rests on Article 41(2) of the Rome Statute, which states that a judge shall not participate in a case where their impartiality might reasonably be doubted, particularly if they have been previously involved in the case. The defense contends that the judges’ prior ruling on jurisdiction, a “substantive legal question” identical to the current challenge, creates a reasonable doubt about their impartiality.

Prior ruling

The prior ruling referred to by the defense team is the September 15, 2021, decision granting the ICC Prosecutor’s request to continue the investigation into alleged crimes against humanity committed by the Duterte administration at the time the country was a member of the ICC.

The key conclusions of the 2021 ruling includes:

• The Chamber found enough evidence to establish that the contextual elements of crimes against humanity under Article 7 of the Rome Statute exist concerning the killings in the Philippines.
• Despite the Philippines’ withdrawal from the Rome Statute in 2019, the Chamber asserted its jurisdiction over the alleged crimes committed while the country was a State Party from November, 2011 to March, 2019.
• The Chamber authorized an investigation into crimes within the Court’s jurisdiction, including murder, torture, inhuman acts, imprisonment, enforced disappearance, and sexual violence allegedly linked to the war on drugs.

“The question before the Presidency is whether, in the present scenario, there can exist a public and objective perception of impartiality when the judges have already ruled on exactly the same issue in exactly the same situational context,” the defense team said, led by lawyer Nicholas Kaufman.

Duterte’s defense team refuted the ICC Prosecution’s contention that prior legal determinations do not amount to bias, as the Rome Statute allows a suspect to litigate jurisdiction “de novo (afresh) and in first instance.

“It is simply not fair either to Mr. Duterte, or even to the Judges themselves, to expect that the latter may diverge from their former reasoning and ultimate holding,” they added.

Under the Rome Statute and the ICC’s Rule of Evidence and Procedure, the ICC Presidency, a judge may be disqualified from a case if their impartiality might be doubted on any of the following ground: prior involvement in the case in a different capacity, personal bias, circumstances that could give the appearance of bias.

The ICC Presidency, composed of the President, and two Vice-Presidents, handles the requests for the disqualification of judges. / MR