ICC does not lack witnesses vs Digong — Conti

A lawyer representing alleged drug war victims on Sunday brushed off speculations that the murder case for crimes against humanity against former President Rodrigo Duterte pending before the International Criminal Court (ICC) is “weak,” as made evident by the prosecution’s call for more witnesses.

Kristina Conti, counsel for the “victims,” said the prosecution’s witness appeal is a “natural course of business” for the tribunal and does not necessarily indicate that the evidence against Duterte is insufficient, given that the case is still at the pre-trial stage.

She said similar developments were also observed in the United States (US) and the United Kingdom, where ICC prosecutors call for more witnesses to gather additional evidence against an accused.

Conti did not elaborate on her comparison, one that may be disputable, as the US is not a state party to the Rome Statute, which created the ICC.

“This is not an indication that the evidence is weak. The ICC is just being thorough in its investigation. In fact, the investigation and search for the truth is still ongoing until the so-called investigation phase of the ICC is completed,” Conti said in Filipino in a radio interview.

ICC prosecutors over the weekend urged direct witnesses of Duterte’s bloody war on drugs, including members of the Philippine National Police and other law enforcement, to coordinate with the prosecution ahead of the confirmation of charges against the erstwhile president.

A microsite, shared on the ICC’s official Facebook page, was launched to allow potential witnesses to submit their testimonies online.

Similarities

ICC proceedings differ significantly from those in local courts. One unique feature is that the prosecution must disclose both incriminatory and exculpatory evidence to the defense, which may help the accused.

On the other hand, a common feature is that the investigation can continue while the case is already ongoing.

This allows the prosecution to scout for additional witnesses and obtain further evidence, provided the evidence has not yet been presented in court.

“While they haven’t been able to present evidence in the case yet, there is still an opportunity to look for witnesses. So, it’s somewhat wrong to claim that the investigation is only starting now; they have been investigating for a long time,” she said.

The prosecution, she said, has produced more than 5,000 items of evidence against Duterte, copies of which were furnished to the defense.

As of now, the prosecution has about 100 witnesses to testify in the trial, according to Conti, citing a previous statement by Duterte’s lawyer, Nicholas Kaufman.

Kaufman slammed the ICC for publicizing the prosecution’s appeal for witnesses, asserting that it must be a “neutral body” and that such a move constitutes preferential treatment “detrimental” to the defense.

The British-Israeli lawyer has persistently appealed to the court to temporarily release the 80-year-old Duterte pending the hearing for the confirmation of charges, initially scheduled for 23 September. 

However, it was indefinitely moved in favor of the defense after claiming that Duterte is unfit to stand trial due to his advanced age and alleged deteriorating health.

Both the ICC Pre-Trial Chamber I and Appeals Chamber unanimously rejected the defense’s request, citing Duterte’s continued risk of flight and obstruction of the proceedings.

Kaufman, however, argued that these risk factors under Article 58(1)(b) of the Rome Statute — outlining the grounds for continued detention — no longer apply to Duterte due to his alleged debilitating cognitive condition and unexplained weight loss, thereby warranting his interim release from ICC detention.

The ICC is expected to hand down a ruling determining whether Duterte is still fit to stand trial, as found by court-appointed medical experts.

In the meantime, Duterte will remain in the Scheveningen Prison in The Hague, Netherlands, where he has been detained since his arrest on 11 March in Manila.