Former president Rodrigo Roa Duterte appearing for the first time before the ICC judges on 14 March 2025. Image from the International Criminal Court

MANILA — The prosecutors in the case of former President Rodrigo Duterte has responded to his defense team's move to disqualify 2 International Criminal Court (ICC) judges from deciding on the "jurisdiction" issue.

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Duterte's main counsel Nicholas Kaufman on May 12 asked the ICC to disqualify judges Reine Adélaïde Sophie Alapini-Gansou and María del Socorro Flores Liera from ruling on their challenge to the jurisdiction of the court over Duterte.

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Kaufman had said that because the two were the ones who authorized the commencement of the investigation, it was "not reasonable to expect a judge who has recently expressed a highly publicized position on a specific legal issue to depart from that view."

PROSECUTION'S RESPONSE

In its response dated May 22, deputy prosecutor Mame Mandiaye Niang, representing the Office of the Prosecutor, formally rejected the Duterte camp's request, citing 4 main arguments:

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1) A high threshold must be satisfied to rebut the presumption of judicial impartiality

2) Judges regularly adjudicate the same, or similar, legal issues

3) Adjudicating on jurisdiction more than once is explicitly foreseen in the Statute

4) The Judges’ preliminary determinations on jurisdiction do not amount to perceived bias

The prosecution explained that 2 judges' earlier determinations were "preliminary in nature" and made "in the absence of any defense observations on the issue."

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"The defense request should be rejected because it fails to call into question the presumption of impartiality attached to the Judges. Contrary to the Defense’s position, the Judges have not 'already predetermined the outcome of the jurisdictional dispute in [the Prosecution’s] favor'," the prosecution said.

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"[T]he Judges’ prior ruling does not amount to any perceived bias in this case, and any conclusion to the contrary would result in the untenable situation where a judge may be barred from issuing decisions on the same legal issue more than once," it added.

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Duterte, 80, is currently held by the ICC in The Hague, Netherlands to face charges of crimes against humanity over his brutal war on drugs. He is awaiting a confirmation of charges hearing in September.

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