Duterte defense seeks to appeal ICC confirmation of charges

MANILA, Philippines — Former president Rodrigo Duterte's lawyers have asked the International Criminal Court to let them appeal the decision confirming all crimes against humanity charges against him, arguing the decision was legally deficient and too vaguely drawn to allow a fair trial.

The 18-page filing, signed by lead counsel Nicholas Kaufman and dated April 29, challenges the Pre-Trial Chamber's April 23 ruling on two grounds: that it adopted an "impermissibly flexible" approach that left the scope of the charges undefined, and that it confirmed them without laying out the evidence behind its conclusions.

"It is for the judges do decide whether or not to grant the authorisation and we cannot speculate on their decision to be made in due course," an ICC spokesperson said.

The chamber's recent confirmation of charges against Duterte is not automatically appealable unlike other decisions. The defense must first obtain permission from the same three-judge panel — led by Presiding Judge Iulia Antoanella Motoc — that issued the ruling it wants overturned.

A case too broad, the defense says

Pre-Trial Chamber I unanimously confirmed three counts of crimes against humanity — murder and attempted murder — covering 49 incidents and 78 victims from November 2011 to March 2019. The period spans Duterte's time as Davao City mayor through his presidency.

Duterte's camp argues that the chamber took a "flexible approach" to the essential details such as the timing, location, identity of victims, and number of incidents.

"In consequence, the Impugned Decision is deprived of its core function as a crystallised articulation of the case, and is instead reduced to a fluid framework or 'live document,' capable of ongoing expansion in line with the Prosecution’s whim or evolving case," Kaufman argued.

No evidence cited, defense says

Duterte's camp is also arguing that the decision was based on too few evidence.

Kaufman argued the chamber prioritized brevity over substance and produced a ruling with no specific evidentiary citations in its footnotes. The defense pointed to another case, the Al Hassan case, as a benchmark, which ran 461 pages with 2,455 footnotes.

The defense said the chamber did not meaningfully address arguments challenging the existence of a common plan. It pointed again to official anti-drug policy documents under Duterte that defined the word "neutralize" in terms that did not equate to killing, and that several alleged perpetrators had confessed to carrying out killings at random and for personal profit rather than on Duterte's orders. 

The chamber dismissed these points in a single paragraph, the defense said, stating only that its interpretation of "neutralize" as "kill" was not undermined by the defense's observations.

Setback after setback

Besides the confirmation of charges, Duterte's camp has also lost its last chance to have the case thrown out entirely via the jurisdiction question.

On April 22, the ICC Appeals Chamber upheld the court's jurisdiction over the case, rejecting the argument that the court lost authority when the Philippines withdrew from the Rome Statute in 2019. The confirmation of charges came the following day.

Duterte is accused of being an indirect co-perpetrator of murder and attempted murder as crimes against humanity, linked to his "war on drugs." 

Estimates of the death toll from his campaign against illegal drugs range from 6,000, reported by police, to 30,000, cited by some human rights groups. The ICC has authorized 539 victims to participate in the proceedings.