Understanding the ICC's Procedures: Duterte’s First Appearance Before The Hague

Understanding the ICC's Procedures: Duterte’s First Appearance Before The Hague | Daily Tribune

Getting up to speed on the International Criminal Court’s (ICC) precise, brief and efficient procedures is the best thing we non-lawyers can do, now that the international tribunal is firmly entrenched in our everyday consciousness.

And, we should quickly resist the urge “to make (international judicial processes) into familiar categories” when they are not, says retired ICC Judge Raul Pangalangan. Pangalangan is the only Filipino so far to have served on The Hague-based court.

Now, in former strongman Rodrigo Duterte’s first formal appearance before the ICC, all pending legal issues were quickly attended to, addressed and decided on, leaving most of us either clueless or impressed with the court’s logical, methodical and professional proceedings.

But the non-theatrical pre-trial chamber proceedings we saw, says former FEU law dean Mel Sta. Maria in an interesting Facebook post, is “not far from what is done in international arbitrations.”

Sta. Maria directed his post to lawyers. But his pointers also aid us in understanding what happened.

Relevant portions of Sta. Maria’s post follow:

● There is a decorum of formality in the room. Unlike local courts where, before the hearing, opposing counsel can talk, joke and even appear to be happy with each other, in international litigation/arbitration, once you enter the court/arbitration room, the impression is that you are professional adversaries.

● International judges/arbitrators are very strict about schedules and, unless there is truly a very compelling reason, there will be no postponements or reschedulings.

● Unlike in local courts where you can make manifestation after manifestation, there is nothing of the sort in international arbitration/litigation. The reason is that all concerns must have been ventilated prior to the hearing. These concerns will be resolved post-haste so the schedule will not be disrupted.

● You always have to be respectful. If you do not like the forum or you wish to inhibit an arbitrator, you should do it prior to any hearing. They will stick to the schedule.

● Study your case very very very well. I have seen a situation where an opposing counsel asked the arbitrators for a little bit of time to go over his files; the counsel was told that it was just a waste of the arbitration time, and the arbitrators moved to another point.

With Sta. Maria’s pointers in mind, we can, for example, see why the ICC court disallowed a visibly unprepared former executive secretary Salvador Medialdea’s request for a postponement.

In disallowing the request, Presiding Judge Iulia Antonella Motoc told Medialdea, “This first initial hearing does not need much preparation, as I have said to you on a number of occasions.”

The court, in short, was keeping to its schedule and postponement would have delayed affirming the identification and presence of Duterte in order to make him aware of his rights and the charges against him. ICC hearings cannot be conducted in absentia.

Motoc, however, allowed Medialdea his “manifestation” that alleged a “political score-settling” and a protest for the manner by which Duterte was brought to The Hague that was “degrading,” calling it a “rendition,” kidnapping,” and “abduction.”

But Motoc quickly ruled out Medialdea and said that Duterte would have the opportunity to raise all concerns about his arrest and even challenge the court’s jurisdiction at the start of the confirmation hearings on 23 September.

There are other relevant points from Duterte’s initial court appearance. But on Medialdea’s supposedly politically motivated “self-serving manifestation,” it is best to note that Pangalangan says the ICC does not inquire about how suspects are brought to trial or what happened before the person appeared before it.

“ICC rules do not create a duty of the surrendering state to undertake any particular process on the arrest of the person,” says Pangalangan.