The International Criminal Court (ICC) Pre-Trial Chamber I (PTC I) must dismiss the case against former president Rodrigo Duterte and release him immediately from detention because of the prosecution’s failure to launch an investigation into his crimes against humanity charges “within the designated time-period,” the defense lawyers argued.

In a 10-page document dated July 2 and a publicly redacted version uploaded on the ICC website, defense counsels Nicholas Kaufman and Dov Jacobs argued that the ICC has no jurisdiction on the former president’s case.

“At the end of the day, it is the Prosecution which must shoulder the responsibility for its miscalculated and, ultimately, erroneous decision not to initiate an investigation within the designated time-period,” the document, titled the “Defense Reply to the Prosecution’s Response to the Defense Challenge on Jurisdiction,” said.

“In light of all the aforementioned, and reincorporating all its previous arguments on the matter, the Defence respectfully requests the Pre-Trial Chamber to find that there is no jurisdictional basis for the continuation of proceedings against Mr. Duterte and to order his immediate and unconditional release,” the relief sought part of the reply added.

The defense based this request on the dissenting opinions of Judges Perrin De Brichambaut and Gocha Lordkipanidze on the prosecution’s request to resume the investigation into Duterte’s case in 2023.

The two judges argued that “the prosecutor has to make all efforts to trigger the Court’s jurisdiction in a manner that would not infringe the right of a State to withdraw from the Statute.”

It also added that one year should have been enough for the prosecutor to conduct a preliminary examination and request to authorize the start of the investigation and for a pre-trial chamber to decide on the matter.

Duterte, in his capacity as Philippine president, withdrew the country from the Rome Statute in March 2018, after the ICC prosecution initiated a preliminary examination in February 2018.

The withdrawal from the Rome Statute took effect one year later, in March 2019.

But it wasn’t until 2021 that the prosecution requested for an investigation into alleged brutal war on drugs campaign. This was later deferred, but resumed again in 2023.

The prosecution argued that the ICC has jurisdiction over Duterte’s alleged crimes from November 2011, when the Statute entered into force, and until March 2019, when the withdrawal took effect.

This timeline is being questioned by the defense, insisting that the investigation has been initiated only after the Philippines was no longer a party to the Rome Statute.

It also said that the preliminary examination has no legal footing when a State Party has already withdrawn its ICC membership.

“Put simply, if the State in question is not a State Party contemporaneously with the exercise of jurisdiction, then no investigation may be initiated and whatever steps were taken during the preliminary examination lack consequence,” the defense stressed.

It also cited Judge Van den Wyngaert, who in the Katanga case said that combating impunity in the pursuit of accountability “cannot prioritise victims’ expectations over a suspect’s right to legal propriety and due process.”

Meanwhile, Vice President Sara Duterte said during a chance interview with supporters outside the detention facility of The Hague on Saturday, July 12, that she hasn’t personally seen the list of witnesses that will be presented for her father’s confirmation of charges hearing.

This despite the prosecution making at least 12 submissions of evidence on its case against the former president.

“Wala pa akong nakitang listahan ng mga witnesses ng ICC. Malalaman kung sino 'yung sinabi... inexplain sa amin na malalaman kung sino iyon sa confirmation of charges. Doon nila sasabihin kung sino 'yung mga witnesses (I haven’t seen a list of witnesses of the ICC. We will know who they’ve been saying… it was explained to us that we will know during the confirmation of charges. That’s when they’ll tell us who the witnesses are),” she told supporters.

“Pero sa pagkakaintindi ko, nakakatanggap na ang defense team ng mga documents galing sa prosecution. So malamang, meron ding mga laman na information on who the witnesses are (But as I understand it, the defense team already received documents from the prosecution. So, more than likely, there is also information there on who the witnesses are),” she added.

The Vice President, who will be in The Hague until July 23, deferred to Kaufman questions about the defense team’s witnesses.