ICC piles up evidence against Duterte

The prosecution has submitted new evidence against former President Rodrigo Duterte to the International Criminal Court (ICC), bringing to 320 the total pieces of evidence to be presented in the pre-trial stage in September.

A document, dated 5 May, showed that lead prosecutor Karim Khan has submitted 139 additional pieces of evidence against Duterte, including documents that formed the basis for his arrest warrant.

The new evidence submitted on 30 April was organized into four categories: contextual elements, modes of liability, murders during Duterte’s tenure as mayor, and murders under barangay clearance operations during his presidency.

The 139 items were part of the prosecution’s second disclosure of evidence, with the first accounting for 181 items.

The evidence aims to strengthen the case against Duterte — to portray him as an “indirect co-perpetrator” in the deadly war on drugs — in preparation for the confirmation of charges hearing on 23 September which would pave the way for a full trial.

The prosecution has until 1 July to complete the disclosure of its evidence.

Earlier, Khan said that prosecutors were preparing 16 hours of audio and video recordings, nearly 9,000 pages of documentary evidence, and testimonies from two witnesses to support the confirmation of charges.

The 80-year-old Duterte has been in ICC custody in The Hague, Netherlands, since his arrest on 11 March in Manila. He faces a single count of crimes against humanity that took place between 1 November 2011 and 16 March 2019 during his tenure as Davao City mayor and as president.

ICC records showed that during that time, Duterte shared the so-called “common plan” with his co-perpetrators, including members of the Philippine National Police, Philippine Drug Enforcement Agency, National Bureau of Investigation, and high-ranking government officials.

The “common plan” referred to Duterte’s policies to eradicate illegal drugs, which allegedly involved systematic killings, torture, and other crimes to eliminate suspected drug offenders.

According to the ICC, the operations were implemented during his tenure as mayor of Davao City and later expanded nationwide upon his assumption to the presidency in 2016.

The government officially reported over 6,000 drug-related deaths during Duterte’s presidency, although rights watchdogs estimated the actual death toll exceeded 30,000 of mostly poor people.

Duterte’s lawyers — Nicholas Kaufman and Dov Jacobs — had contested the ICC’s authority to detain the former president, citing its supposed lack of jurisdiction.

They argued that the ICC “is not in a position to exercise jurisdiction in the Philippines situation after the country’s effective withdrawal from the Rome Statute.”

However, according to ICC-accredited lawyer Gilbert Andres, this argument merely echoes the same grounds the Philippines previously used in its bid to block the ICC’s reinvestigation of the drug war after it withdrew from the Rome Statute.

The Philippines officially withdrew from the Rome Statute — the treaty that established the ICC — in March 2019 on Duterte’s orders.

The ICC has insisted, however, that it retained jurisdiction over crimes committed while the Philippines was still a state party to the treaty.

Defense bid to excuse judges junked

Meanwhile, the Pre-Trial Chamber I of the ICC has rejected the request of Duterte’s defense team to excuse two judges from his case.

In a four-page decision posted on its website on 6 May, the international tribunal denied the defense’s 1 May request entitled, “Defence Invitation for the Excusal of Judge Reine Adélaide Sophie Alapini-Gansou and Judge María del Socorro Flores Liera from Adjudicating on the Issue of Jurisdiction.”

The filing of the request coincided with the defense team’s earlier petition questioning the jurisdiction of the international tribunal over the Philippines, its first formal move to halt the proceedings against Duterte.

According to the defense lawyers, Alapini-Gansou and Liera should be partially excused from their functions in Pre-Trial Chamber 1 due to the “possibility of perceived bias.”

They argued that the two were among the judges who approved the preliminary investigation of Duterte.

The defense request was opposed by the Prosecution on 5 May.

The Pre-Trial Chamber said the request to excuse the two judges was not allowed, citing Article 41 of the Rome Statute and Rules 34 and 35 of the Rules of Procedure and Evidence.

“[A] judge’s excusal from the exercise of a function may only be sought by the judge concerned directly before the Presidency, as opposed to disqualification for which the Prosecution or the person being investigated or prosecuted may submit a request before the Presidency,” the ICC decision read.

“The possibility for that person to invite or request judges to seek excusal before the Presidency is thus not contemplated in the statutory texts. As stated by the Presidency, ‘no preemptive request may be made by the parties that a judge request his or her excusal’ and such course of action ‘lacks procedural propriety,’” it added.

It continued: “For these reasons, the chamber hereby dismisses the invitation in limine (at the threshold).”