ICC rejects Du30 lawyers’ bid to remove 2 judges
Former President Rodrigo Duterte will have to accept the judgment of the two judges he wanted removed from the International Criminal Court (ICC) chamber as it decides whether the tribunal has jurisdiction to prosecute him for crimes against humanity.
In a decision dated June 9, the ICC plenary of judges, led by President Tomoko Akane, unanimously rejected the former president’s appeal to disqualify Pre-Trial Chamber (PTC) I Judges Reine Alapini-Gansou and María del Socorro Flores Liera for alleged bias.
Kristina Conti, one of the lawyers assisting families of the victims of the ruthless drug war waged by the previous administration, said this was a positive step for the case against Duterte to move forward and to remain “on track.”
“A plenary of judges was convened … in order to consider the application. (It), acting unanimously, decided to reject the application,” the plenary said.
The three-page ruling did not state the basis for the rejection, although the plenary said a “fully-reasoned decision” would be released soon.
The plenary is composed of all 18 judges of the tribunal based in The Hague, the Netherlands.
On May 6, the PTC junked the petition of Duterte’s defense team, led by British-Israeli lawyer Nicholas Kaufman, to have the two magistrates excuse themselves from adjudicating on the specific issue of jurisdiction.
‘Perceived bias’
Duterte’s lawyers had cited “perceived bias” from Alapini-Gansou and Liera, arguing that both were previous members of the chamber that allowed the ICC’s Office of the Prosecutor (OTP) in 2021 to start an inquiry into the Duterte administration’s bloody campaign against illegal drugs and for the same to resume the inquiry in 2023 after it was stalled by appeals by the Philippine government.
But the PTC pointed out that asking a judge to excuse oneself from judicial functions “lacks procedural propriety.”
In another development, the PTC on Tuesday released a redacted version of the prosecution’s response to the move of the defense to challenge the jurisdiction of the ICC to try Duterte for the thousands of drug killings during his terms as mayor of Davao City and as the country’s president.
Echoing the Office of the Public Counsel for Victims, the prosecution refuted the defense’s interpretation of two key provisions—Articles 12(2) and 127(2)—arguing that the Rome Statute includes safeguards precisely to prevent states from withdrawing in order to avoid investigation or prosecution.
The prosecution stressed that the two provisions establish three things: that the Rome Statute is in line with the principles of the Vienna Convention of the Law of Treaties, which affirms that a “withdrawal does not discharge a state party from its obligations under the Statute;” that it “regulates cooperation” after a withdrawal takes effect; and that the ICC “shall not be prejudiced” in taking up matters that were already “under consideration” at the time of the country’s exit from the Statute.
The Philippines became a party to the Rome Statute, the treaty binding member nations to the ICC, on Nov. 1, 2011. But in March 2018, in response to the ICC prosecutor’s announcement that it was initiating a “preliminary examination” of the Philippine drug war, Duterte ordered the country’s withdrawal from the Statute. This took effect a year later, in March 2019.
Refuted on all points
Lawyers of the families of drug war victims argue that the antinarcotics campaign of Duterte as Davao mayor and later, as chief executive of the country, was in full force and led to mass killings while the Philippines was still under ICC jurisdiction.
For the prosecution, the preliminary examination it initiated in February 2018, well before the Philippines’ exit from the Statute took effect, should be regarded as a “matter of law.”
Conti and her fellow human rights lawyer Neri Colmenares said the arguments raised by the prosecution were “strong.”
“They refute the defense arguments on all points,” Conti told the Inquirer.
