ICC lays groundwork for Du30 trial
A trial chamber of the International Criminal Court (ICC) has asked the prosecution and the defense in the case of former President Rodrigo Duterte to submit disclosures and materials—like documentary evidence or new witnesses—as it lays the groundwork for his full-blown trial.
It marked the first movement in the case since the charges against Duterte were confirmed by the ICC’s Pre-Trial Chamber (PTC) I on April 23, and the tribunal named on April 28 the three judges forming Trial Chamber III, the body now taking over.
In an order dated April 30, the trial chamber set the first status conference of the parties for May 27. It identified the documents that must be submitted by the parties and participants in the case of Duterte, who is charged with three counts of murder as a crime against humanity.
The documents would “facilitate the preparation of the first status conference (and) enable the chamber to set the trial date in this case,” it said.
Among the items sought are the “anticipated” evidence, which would be compulsory for the prosecution and optional for the defense. These include the estimated number of witnesses to be called to the stand and the number of hours of their expected testimony; any expert witnesses; testimonies to be made via audio or video link; the estimated volume of documentary evidence to be cited during trial; and any testimony already recorded in audio, video or transcript.
Materials for disclosure
The prosecution is required to disclose materials in its possession, including the protective measures taken for witnesses and their identities, including those kept from the defense; other confidential information; evidence it had secured during the pretrial stage; and a report on investigations related to the case that are still ongoing.
Any update regarding additional persons seeking to participate in the trial as “victims’’ should also be declared to the trial chamber.
Duterte’s defense team, on the other hand, is ordered to disclose any plan to “advance a defense.”
The chamber said all parties and participants, including the common legal counsel for the victims and the ICC’s Office of Public Counsel for Victims, can raise other issues that may delay the trial and other motions that need to be resolved before the start of the status conference this month.
They may also ask whether they can add items on the agenda and whether they would want parts of the status conference to be conducted ex parte, or without another party.
The chamber also wants to know the language to be used by witnesses and participants, or if any issue over translations may arise.
All these must be submitted by May 15, according to the order issued by three-member TC III.
The ICC Presidency announced last week that the trial chamber will be composed of judges Joanna Korner from the United Kingdom (the presiding judge), Paek Kee-bong of South Korea, and Nicolas Guillou of France.
In a filing made public by the ICC on Thursday, Duterte’s defense team formally requested leave to appeal the PTC I’s April 23 decision that confirmed the charges against the ex-president.
Duterte is accused of being criminally responsible for the brutal killings, particularly 78 individuals, in his so-called war on drugs.
The defense cited two grounds for the appeal:
First, that the PTC erred in law when it allegedly adopted a “flexible approach to the formulation of the charges,” which it said “diluted” the requirement that the accused be made aware of the nitty-gritty details.
Second, that the PTC I erred in law by “failing to articulate a reasoned evidentiary basis” for confirming the charges.
The supposed errors “undermine the very function of the confirmation procedure-that is, to define the case and to test the evidentiary strength and basis of the charges,” the defense said.
Duterte’s lawyers mainly contest a particular PTC pronouncement which read: “While noting the suspect’s right to be informed in detail of the nature, cause and content of any charge brought against him, pursuant to article 67(1)(a) of the (Rome) Statute, it is critical that the charges do not contain unnecessary details that could be too specific and limiting at trial.”
The pretrial chamber was referring to details such as the time and place of the incidents, as well as the identities of victims covered in the charges.
But according to the defense, the PTC prioritized “conciseness” that resulted in weak “evidentiary basis” and an “inordinately excessive degree of generality,” thus failing to define the factual parameters of the case.
“Prompt intervention would ensure that the case proceeds on a properly defined factual and evidentiary framework, enabling the Defence to prepare effectively for trial, reducing the likelihood of protracted future litigation on these issues, and dispelling any enduring doubts as to the validity of the impugned decision,” the defense said.
Sought for comment, ICC-accredited lawyer Kristina Conti said the defense team’s latest move would not cause a delay in the trial.
Even if the defense’s request is granted by the PTC I, the matter will be handled by the Appeals Chamber, Conti said.
“It will only stop [the trial if] the Appeals Chamber rules to stop the proceedings and the decision is final and executory,” she said in an Inquirer interview.
Duterte, who was allowed by the PTC to skip two previous hearings, will now be required to appear before the trial chamber judges, though they may still allow him to do so via video or audio link.
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