ICC prosecutor Karim Khan —Photos by Marianne Bermudez, ICC screengrab
MANILA, Philippines — The prosecutor of the International Criminal Court (ICC) has formally turned over to the defense team of former President Rodrigo Duterte the pieces of evidence that formed the basis for his arrest warrant for alleged murder as a crime against humanity.
In a document released by the ICC on Tuesday, the prosecution told the Pre-Trial Chamber (PTC) 1 that it was able to disclose on March 21 “181 items” making up the evidence implicating Duterte in the charges.
The former president and Davao City mayor is accused of being an “indirect coperpetrator” in the systematic and widespread killings under a policy he implemented to stamp out the proliferation of illegal drugs in the country.
READ: Pivotal issue in Duterte’s ICC case
He was arrested on March 11 in Manila before he was flown to the ICC headquarters in The Hague, the Netherlands, where he is currently detained.
“These items comprise the material cited in the warrant of arrest for Mr. Rodrigo Roa Duterte,” ICC prosecutor Karim Khan said in the notice.
An annex to the notice filed was declared confidential and was therefore not made available to the public.
Khan added that some materials from “seven witnesses” have yet to be provided to the defense, for which the prosecution has asked for an extension from the court.
In applying for an extension of the deadline for the evidence disclosure, the prosecution cited regulation 35 of the ICC’s Regulations of the Court.
The submission of evidence to the defense is part of the ICC proceedings and is deemed “crucial” for both the prosecution and the defense, legal experts had said.
Enough evidence
Various scenarios can play out at the pretrial stage based on the evidence at hand in the case against Duterte.
For one, the charges of torture and rape, which were dropped by the PTC in its arrest warrant against Duterte, could be revived if the prosecutor finds more evidence, human rights lawyer Kristina Conti told the Inquirer.
The Office of the Prosecutor, in its urgent application for an arrest warrant in February, charged Duterte with three counts under crimes against humanity, namely murder, torture and rape.
However, the chamber excluded the torture and rape charges due to lack of sufficient basis.
“But it is instructive because the quantum of evidence is low… So unless the prosecutor gets additional information and convinces the judges that [he] can bring back torture and rape, then the judge would decide again whether there is sufficient evidence to proceed to trial,” Conti said in a phone interview.
A lawyer assisting the families of drug war victims also said he believed that Duterte would find it difficult to overcome the evidence the prosecutor has against him, even if he is made aware of the documents and testimonies used against him.
For Neri Colmenares, Duterte would “have a hard time surmounting [the evidence]. The evidence is really strong.”
In fact, he said, the 43 incidents of murder cited in the arrest warrant, including those killed in Caloocan City and Bulacan province, are “enough” to bring Duterte to trial.
“The ICC has convicted [other accused] based on fewer offenses,” Colmenares told the Inquirer on Wednesday, citing the case of Congolese rebel leader Germain Katanga, who was convicted of war crimes and crimes against humanity in 2014.
Confirmation of charges
According to ICC spokesperson Fadi El Abdallah, the court could also not confirm any of the charges against Duterte, although this could eventually be appealed by the prosecutor.
If confirmed, on the other hand, the defense could make the appeal.
“At a pretrial level, there’s only the question of whether or not charges would be confirmed against a suspect. If no charges are confirmed against a suspect, then of course, the case should end at this level,” he told NewsWatch Plus in an interview.
“There’s a possibility for the parties, so either the prosecutor or the defense, to request a leave to appeal the decisions on the confirmation of charges if they are not satisfied with the outcome. And that’s a different process,” he noted.
Duterte’s legal team is led by British-Israeli lawyer Nicholas Kaufman, who vowed to mount a strong defense for Duterte.
Lawyers representing the victims and their families are also gearing up to ensure that they will have a participation in the ICC proceedings.
Conti said this would involve having an opportunity for the victims to relay to the court their “concerns and views” in the case against Duterte.
Honasan’s right
Meanwhile, Malacañang said it would not stop former Sen. Gregorio Honasan II from filing a petition at the ICC to ask for the safe return of Duterte to the country.
In a press briefing on Wednesday, Presidential Communications Office Undersecretary and Palace press officer Claire Castro pointed out that the government has no obligations as to the ICC’s legal procedures.
“On the part of the government and the administration of President Marcos, we won’t do anything because we have no responsibility, we won’t do anything with regard to the legal system and legal procedures of the ICC,” she said.
Castro said it was within the former senator’s rights to defend Duterte, having served as information and communications technology secretary during the previous administration.
“But it might be better if he coordinates first with the legal team of the former president because the ICC may not recognize him,” she added.
Sovereignty intact
In Congress, Senate President Francis Escudero reiterated that the country’s sovereignty was not compromised when the government agreed to hand over Duterte to the International Criminal Police Organization (Interpol) for him to face trial for crimes against humanity at the ICC.
“First of all, those who filed the complaint (against Duterte) in the ICC were Filipinos, not foreigners,” Escudero told a news forum on Wednesday.
“Those who decided to pursue the case were Filipinos, right? No foreigners interfered there,” he said.
He disputed claims that the country’s judicial institutions were deprived of exercising their jurisdiction over the legal issue since Duterte was never indicted in connection with his ruthless crackdown on illegal drugs.
Escudero, a lawyer, said it was also clear that Republic Act No. 9851, or the Philippine Act on Crimes Against International Humanitarian Law, Genocide and Other Crimes Against Humanity, allowed Filipinos suspected of involvement in war crimes and other similar offenses to be tried before an international tribunal.
“In the case of the former president, there’s no pending case against him, and the victims chose [the ICC] as the venue for them to get justice. I don’t think Philippine courts were denied jurisdiction on this matter,” he said.