International Criminal Court Pre-Trial Chamber I Presiding Judge Iulia Antoanella Motoc and defense counsel Nicholas Kaufman, the lead lawyer of former President Rodrigo Duterte in his crimes against humanity case at the ICC. Courtesy ICC-CPI/COMPSITE/FILE

(UPDATED) Nicholas Kaufman, the lawyer of former President Rodrigo Duterte, on Monday insisted that the International Criminal Court has no jurisdiction over the case of the former Philippine president.

Speaking to reporters, Kaufman said he believes there is a "strong argument" for the lack of jurisdiction over Duterte's case, given the Philippines' withdrawal from the Rome Statute.

"I believe there is a strong argument for the lack of ability to exercise jurisdiction, given the Philippines’ withdrawal from the Rome Statute. I hope that the judges would accept my submission," he said.

He also said he would want the ICC judges to hear their arguments, but it will still be up to them if Duterte's legal team would be given that chance.

"It’s the judges who decide when to hear that argument. Obviously I would want it to be heard, first of all. I believe there are compelling arguments and I would seek to persuade the judges," Kaufman said.

WHILE PH WAS STILL STATE PARTY

The ICC, however, earlier said in a statement after Duterte's first appearance before the tribunal that it retains jurisdiction over crimes allegedly committed in the Philippines while the country was still a State Party to the Statute.

In its March 12 situation report on the Philippines and Duterte, the ICC said the arrest warrant against the former leader was issued after the chamber "assessed the material submitted by the Prosecution and found reasonable grounds to believe that Mr Duterte is individually responsible as an indirect co-perpetrator for the crime against humanity of murder, allegedly committed in the Philippines between 1 November 2011 and 16 March 2019."

It added that the ICC found that "there was an attack directed against a civilian population pursuant to an organisational policy while Mr Duterte was the head of the Davao Death Squad (DDS), and pursuant to a State policy while he was the President of the Philippines. Moreover, there are reasonable grounds to believe that this attack was both widespread and systematic: the alleged attack took place over a period of several years and resulted in thousands of deaths. In the arrest warrant, the Chamber focused on a sample of alleged incidents to facilitate its analysis."

The Philippines deposited a written notification of withdrawal from the Rome Statute on March 17, 2018.  The withdrawal only took effect a year later.

VISITING DUTERTE

Kaufman entered the Scheveningen penitentiary to visit his client at around 1:45 p.m. (Dutch time) Monday. He was accompanied by another counsel.

He did not disclose further details about their legal strategies, including what kind of petition and when they're going to file these.

Kaufman conveyed the message of the former president and his family to the supporters and other parties to set aside the legal case and the political issue. 

“There was a huge outpouring of support and love in both in the Philippines and here in the Netherlands, and that has touched him. He's been made aware of it, and he's very grateful for that. The family wants to make it clear, and he endorses this, that there should be no interference with the judicial process. The political politics is one issue. He's aware of what's going on in the Philippines. Politics will take its course. But that has nothing to do with what's going on here at The Hague,” he said.

“What's going on here at The Hague is a judicial process, and it should be allowed to run its course. There should be full respect for all participants in that process. The prosecution, the defense, and the victims counsel who will make their submissions in due course. No one should interfere with that process. Let it run its course,” Kaufman also said, adding that the former president is made aware of the huge demonstration of love and support during his birthday celebration.

As to the situation of the former president in the detention center, he said "he is in high spirits. And I will maintain that," noting that Duterte being 80 years old would have a challenge adjusting in his current situation.

INTERIM RELEASE?

As for Duterte’s application for interim release, Kaufman said they are working on it but have not yet decided when they will introduce such application.

“Everyone thinks about interim release at the ICC. Interim release is a right. And it can only be tempered by three factors. The first of which is the risk of flight, the second of which is the risk of interference of witnesses with the evidence, and a third of which is the risk of continued crimes. None of those factors exist in a present situation. So there is a right for Mr. Duterte to be released. We are working on that, but the timing of when we intend to introduce such an application is yet to be decided,” he said.

Lawyer Ruben Carranza of the International Center for Transitional Justice earlier told ANC that that the ICC issued a warrant of arrest against Duterte instead of a summons because it may mean that the tribunal believes that Duterte "might obstruct the case, might intimidate witnesses, [and] might commit violence to stop trial against him."

"That is precisely one reason why a court will not release someone who has been arrested and who is going to be charged," he added.

Duterte lawyer: 'Compelling' grounds to throw case out

Duterte's case not just about number of victims, but also systematic manner of killing: lawyer

Duterte was arrested on March 11  on his arrival from Hong Kong at the request of the ICC as part of its probe into his "war on drugs" that defined his presidency.

The ICC warrant for Duterte's arrest said that as Davao City mayor and later Philippine president, the 80-year-old Duterte allegedly created, funded, and armed death squads that carried out murders of purported drug users and dealers.

He was brought to The Hague in the Netherlands on the same day he was arrested.

Duterte on March 14 appeared via video link before ICC judges. He is set to attend a September 25 hearing to confirm the charges against him.