The criminal charge that former president Rodrigo Duterte is facing before the International Criminal Court (ICC) may be augmented once the confirmation of the charges scheduled for 23 September begins, an ICC-accredited lawyer disclosed Wednesday.

Currently, there is only one charge against Duterte. He was ordered arrested by the ICC on 11 March for crimes against humanity of murder allegedly committed between 1 November 2011 and 16 March 2019.

However, lawyer Gilbert Andres, one of the five Filipino lawyers accredited by the ICC, explained that this could still be modified should the prosecution establish additional evidence, potentially leading to the filing of separate or additional criminal acts.

“Remember, the confirmation of charges, that’s also the stage wherein the prosecutor will define the metes and bounds of the final charges against Mr. Duterte, and in fact, it's potentially, it's theoretically possible that the charge can also include other charges such as for example torture, arbitrary detention, or even rape," he said in an interview.

“That’s actually the significance of the confirmation of charges. It’s actually the definition of the metes and bounds, the boundaries of the documents containing the charges against Mr. Rodrigo Duterte,” Andres added.

Article 7 of the Rome Statute, the treaty that established the ICC, outlines the criminal offenses that constitute crimes against humanity. This includes murder, torture, rape, enforced disappearance of persons, and other inhumane acts intentionally causing great suffering, or serious injury to the body, among others.

According to Andres, if the prosecution presents evidence that any of the said offenses were committed by Duterte, “That can be separate charges."

Deadline

Both the prosecution and the defense team of Duterte have been given less than a month to submit their respective evidence ahead of the scheduled confirmation of charges hearing on 23 September, during which the judges will determine whether the evidence against the accused is substantial enough to carry on with the trial.

Duterte had his pretrial hearing on 14 March, three days after being arrested.

The prosecution had already furnished the ICC Pre-Trial Chamber I and Duterte’s camp with the set of evidence, totaling 181 items, though they still have until 4 April to submit additional pieces of evidence.

Duterte’s defense team, meanwhile, was given until 11 April to submit its counter-evidence.

Duterte’s lead legal counsel, Nicholas Kaufman, earlier expressed hope that there might be no more confirmation of charges if they succeed in asserting that the court lacks jurisdiction over Duterte’s case, echoing the thesis of the former president’s camp that he was “kidnapped.”

Hence, the British-Israeli lawyer posits that there was a “compelling” reason for throwing out Duterte’s case before it even came to trial.

Despite the Philippines’ withdrawal from the Rome Statute on 17 March 2019, the ICC asserted that it still retains jurisdiction over crimes against humanity allegedly committed by Duterte before the country officially pulled out as a state party.

The country’s withdrawal was pursuant to Duterte’s marching order and was made after learning that the ICC launched a preliminary investigation into his brutal anti-drug campaign, which saw more than 6,000 killed, based on the government’s data.

Human rights organizations, however, estimated that the actual death toll probably exceeded 30,000, affecting predominantly low-income families and communities.

The 80-year-old Duterte is currently in ICC’s custody following his arrest on 11 March in Manila upon his return from Hong Kong. He is facing charges of crimes against humanity for 43 extrajudicial killings under his drug war, including those executed by the Davao Death Squad when he was still the Davao City mayor.

Disparity

His daughter, Vice President Duterte, a lawyer herself, has questioned the veracity of the prosecution’s submitted number of 43 victims. She argued that the disparity of the figures in the purported actual death toll of 30,000 would belie the allegations of widespread and systematic killings.

She also argued that the prosecution has to provide the names of the 30,000 EJK victims to substantiate their allegations.

Lawyers of the drug war victims, however, disputed that the 43 cases were only a representation and did not mean the number of charges would be limited to that figure.

ICC spokesperson, Dr. Fadi El Abdallah, explained that the number of cases may still pile up depending on the course of the judicial process.

“This doesn’t mean that these are the only incidents that may be included in the charge. These were a sample of incidents that are related, that were, for the purpose of issuing an arrest warrant, sufficient from the point of view of the judges, to sustain the charge of murder as a crime against humanity,” he pointed out.

“Next step, which is the confirmation of charges hearing scheduled in September, would look deeper, and after hearing also the defense, to decide whether this case should go to a trial or not,” El Abdallah added.

Further, the ICC’s mouthpiece stated that a request from the prosecution for additional cases and witnesses may still be accommodated subject to the approval of the ICC judges.

“It would be for the judges to decide whether they can be admitted or not,” El Abdallah averred.

Previously, Andres disclosed that witnesses who could possibly be called by the court to testify on the trial of Duterte are now being carefully selected and vetted.

He, however, said that only two to three witnesses may be presented before the ICC. Nonetheless, he mentioned there have been continued discussions between them and the families of the victims and that the timetable is already being laid out.