What ICC prosecution, defense should prep for Sept. 23 hearing
(First of two parts)
In judicial bodies like the International Criminal Court (ICC), which follows proceedings largely unfamiliar to Filipinos, ways on how to proceed in a case of alleged crimes against humanity could be confusing even to lawyers who have dealt only with local cases.
For one, former President Rodrigo Duterte’s own counsel, former Executive Secretary Salvador Medialdea, a lawyer not previously accredited by the ICC, attempted to get a quick decision from the Pre-Trial Chamber in Friday’s hearing when he presented a “manifestation” to raise issues on the legality of the arrest as well as the health status of the accused.
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Immediately at the conclusion of the initial appearance hearing, Presiding Judge Iulia Antoanella Motoc of the Pre-Trial Chamber 1 informed Duterte, who joined virtually, and Medialdea about the “next procedural steps” leading up to the hearing on the confirmation of charges set on Sept. 23 or six months later.
This includes the opportunity for Duterte to “raise matters with regard to the arrest warrant, the charges, and the jurisdiction of the court,” some of which Medialdea had raised in his manifestation.
These, Motoc noted, would have to be tackled in “status conferences” to be held by the chamber to “ensure a small exchange of information under satisfactory conditions.”
She also explained that these would be conducted either “ex officio, or at the request of the prosecutor or the defense.”
Presentation of evidence
But what has to be done immediately in the following week of the March 14 hearing is to finish the turnover of the evidence that had been used by the ICC’s Office of the Prosecutor (OTP) as grounds for its request for an arrest warrant.
“The chamber orders the prosecutor to begin disclosing today the information on the basis of which the warrant of arrest was issued and to complete this disclosure no later than within the next seven days,” Motoc said in the courtroom.
According to Ruben Carranza, senior associate at the International Center for Transitional Justice, this step is crucial since Duterte’s defense team should be able to use the succeeding weeks to come up with a response to the gravity of the prosecutor’s allegations based on the evidence it gathered.
“The criminal procedure at the ICC relies on the prosecutor presenting the nature of their evidence, including potentially exculpatory evidence,” Carranza told the Inquirer.
The defense lawyers would then be given ample time for their reply to the prosecution, he added.
Human rights lawyer Kristina Conti, who is accredited at the ICC as assistant to counsel, also emphasized the “responsibility” of the OTP to share with the defense camp its evidence, including those that are “exonerating, exculpating or mitigating” in nature.
“What will remain [as evidence in the next hearings] is whatever was put on record,” Conti explained in a news forum on Saturday.
“This will reflect the diligence not only of the prosecutor, but also of the defense. If they know there’s a counter to the evidence at hand, then they should raise it [before the court],” she added.
Families of drug war victims
The burden to present evidence would solely fall on the prosecutor, not on the victims or their families, Conti stressed, noting that witnesses who suddenly recant their testimonies would not affect the strength of the case against Duterte.
Families of victims of the drug war would also have participation at the pretrial stage.
However, the legal team that would represent them has yet to be formed, said Conti.
“The [families of the] victims will choose one common legal representative. It is also possible that something like our PAO (Public Attorney’s Office), which is the Office for the Public Counsel for Victims, would represent all the victims. [This lawyer] would be in charge of representing the interests of the victims,” she said.
This is in line with Motoc’s pronouncement in last week’s hearing that the pretrial court would issue a decision on the participation of the families of the victims who, at this stage of the proceedings, are “authorized to present their views and concerns.”
Duterte is facing the consolidated charge of crimes against humanity in connection with the killings of at least 43 suspected drug users.
The safety of the families of the victims is of utmost consideration for the ICC, as shown by the redacted version of the OTP’s urgent application for the arrest warrant.
The identities of the slain victims were stricken out to ensure the protection of their families, leaving only the manner by which the victims were killed and where the crimes happened.
Question of jurisdiction
For the Duterte camp, the issue of jurisdiction would likely be its main legal challenge in the case.
Harry Roque, who has already sought to be officially recognized as a member of Duterte’s legal team, said after the initial hearing that the question of jurisdiction, especially its “implications” on what Duterte’s team claims as his “kidnapping” as well as its insistence that the Philippines’ withdrawal from the Rome Statute took effect in 2019, would be raised earlier than the September hearing.
The Rome Statute is the 2002 legal framework which formed the ICC and which binds its member countries to the Hague-based court.
“We believe that confirmation of charge is necessary… [and] relevant, particularly on the elements of the crime. But we would want that the issue of jurisdiction be ruled upon at an earlier date. Because, as we know, if the court has no jurisdiction, it is pointless to proceed to [the] confirmation of charges,” Roque told a group that include the media as well as Duterte’s supporters.
Conti said the kidnapping claim could also be a tactic by the defense to convince the court to allow the former president interim release.
Existing Philippine laws on crimes against humanity, a 2021 decision by the Supreme Court on ICC jurisdiction and a split decision by the Appeals Chamber in 2023 on the Philippine government’s appeal arguing loss of jurisdiction with respect to the OTP investigation, could serve both the prosecutor and the defense when talking about these highly contentious matters.
