ICC President Orders Two-Pre-Trial Judges to Submit Written Observations in Duterte Case

THE HAGUE— The President of the International Criminal Court (ICC) has instructed two pre-trial judges overseeing the situation in the Philippines to submit written observations addressing a request from former Philippine President Rodrigo Duterte’s defense team, which seeks their disqualification from ruling on jurisdictional issues.

Duterte, currently detained at the ICC detention center, faces accusations of alleged crimes against humanity.

On 9 May 2025, his lawyers requested the removal of Judge Reine Adélaïde Sophie Alapini-Gansou and Judge María del Socorro Flores Liera from Pre-Trial Chamber I, arguing that they should not adjudicate on jurisdictional matters.

In response, ICC President Judge Tomoko Akane issued an order on 14 May 2025 directing the two judges to submit written observations by 16:00 on 22 May 2025. The Office of the Prosecutor is also required to file any response to the request within the same deadline. The order further notifies all parties that a plenary session will subsequently convene to address the application.

Defence challenge on jurisdiction and attempt to disqualify judges

On 1 May 2025, Duterte's defense team formally challenged the ICC’s jurisdiction over the Philippines, citing the country’s withdrawal from the Rome Statute in March 2018, which took effect a year later. They argued that when ICC Pre-Trial Chamber I authorized an investigation in 2021, the Rome Statute’s jurisdictional requirements were not met, as it mandates a country must be a State Party at the time jurisdiction is exercised.

On the same day, the defense submitted an “Invitation for the Excusal” of Judges Alapini-Gansou and Flores Liera, petitioning the ICC Presidency for their partial removal from deliberations on jurisdiction due to perceived bias. The defense emphasized that both judges had previously signed Duterte’s arrest warrant, which they argued could compromise impartiality in jurisdictional rulings.

The defense stated: "Given their prior rulings on the same issue, an objective observer would reasonably perceive bias if the judges deliberate once more on a matter they have already adjudicated. The outcome would appear predetermined."

On 6 May 2025, Pre-Trial Chamber I dismissed the petition, ruling that such a request lacked procedural propriety. The Chamber stated: "No preemptive request may be made by the parties that a judge requests his or her excusal, as such a course of action lacks procedural propriety."

The Chamber clarified that under Article 41 of the Rome Statute and Rules 34 and 35 of Procedure and Evidence, only a judge may request excusal directly before the Presidency, whereas disqualification requests may be initiated by the prosecution or the accused.

On 9 May 2025, Duterte’s lawyers formally requested the ICC Presidency to disqualify the two pre-trial judges, reiterating their concerns over perceived bias. They further requested that Judge Alapini-Gansou be disqualified due to her position as Second Vice-President of the ICC.

They argued that the 6 May 2025 ruling dismissed their excusal petition without addressing the merits of the case, underscoring their concern about fairness in jurisdictional deliberations.

Photo Source: International Criminal Court (ICC)