9 hours ago
2
“It’s a done deal,” said Justice Secretary Jesus Crispin “Boying” Remulla, which is the Marcos government’s signal that any legal fight to bring home former president Rodrigo Duterte will have to be done in the International Criminal Court (ICC) in The Hague, and not domestically — whether in the political scene or in the Supreme Court.
Duterte’s longtime aide, Senator Bong Go, said as much as he called the Senate’s foreign affairs committee hearing on Thursday, March 20, “Too late the hero…useless if we cannot bring Tatay Digong home.” Tatay Digong, or Father Digong, is what supporters call Duterte.
Interim release and Article 59
The most immediate remedy for Duterte would be to file an application for interim release pending trial, and this could be filed and decided in theory even before the September 23 schedule for the confirmation of charges hearing.
The propriety of his arrest and surrender will likely be raised by the defense. Article 59 of the Rome Statute, which requires that a suspect be brought to a local judge first, may be the first contention and has repeatedly been brought up by Duterte’s camp. The Philippine government maintains that as a non-member, they were not bound to follow Article 59, and that they were instead just following their commitments to the Interpol and local law Republic Act 9851, or the International Humanitarian Law, which allows for the surrender to an international court of a suspect of crimes against humanity.
Duterte’s lead lawyer, veteran ICC trial lawyer Nicholas Kaufman, has argued before, using Article 59 for a former client, Central African Republic (CAR) minister Maxime Jeoffroy Eli Mokom Gawaka. But CAR is an ICC member, and Chad, where Mokom was arrested, is also an ICC member.
One thing going against Duterte is that the ICC had once validated the arrest of a suspect who was not brought to a local judge. Ugandan rebel leader Dominic Ongwen was snatched by CAR rebels, brought to US forces, who then turned him over to the ICC. In a later ruling, the ICC said a burdensome process would disincentivize countries from arresting potential war criminals.
That’s not only the ICC but international criminal tribunals in general. There’s a reason why Duterte’s camp uses the word “kidnapping” — it’s because former international criminal defendants have used the same defense before.
Take for example Dragan Nikolić who claimed that his abduction to be delivered to the International Criminal Tribunal for the former Yugoslavia (ICTY) was an illegal arrest. The ICTY basically said that the end justifies the means.
To quote: “The damage caused to international justice by not apprehending fugitives accused of serious violations of international humanitarian law is comparatively higher than the injury, if any, caused to the sovereignty of a State by a limited intrusion in its territory, particularly when the intrusion occurs in default of the State’s cooperation.” Nikolić eventually pleaded guilty to the killing of detainees in the camp for Bosnian Muslims and non-Serbs.
The case of Nikolić was pointed out to Rappler by David Donat Cattin, an adjunct associate professor of International Law at the New York University (NYU) Center for Global Affairs.
“While in the Nikolić case there was such an intrusion, in the Duterte one there was not, as he was the recipient of an arrest warrant circulated via Interpol and duly served on him. Hence, the relevant Chambers of the ICC will most likely proceed with the case,” Donat Cattin told Rappler.
When it comes to ensuring that suspects are brought to the custody of the Court, the ICC tends to be practical, said retired ICC judge Raul Pangalangan in an earlier forum.
But it’s this same practicality that Duterte can also take advantage of, such as filing for immediate reliefs even before September 23.
“I can only say that the Rome Statute affords the widest possible spectrum of the rights of the accused to any individual who is brought before the ICC,” said Donat Cattin.
The ICC has not been known to grant interim release to crimes against humanity suspects, only to obstruction of justice suspects. The suspects currently in the ICC’s custody have been detained there anywhere from four to seven years.
Mokom, Kaufman’s former client, only spent a year in detention because in October 2023, Prosecutor Karim Khan dropped the charges because of the difficulty in obtaining more evidence and getting more witnesses, making prospects of conviction dim.
In the ICC, the court does not want to waste its time, and the time also of suspects and victims, so they consider likelihood of conviction in the interest of a fair trial. Khan withdrew those charges without prejudice to opening another one if more evidence comes to light.
Admissibility
At the Senate, Go echoed a growing call from the Duterte camp, which is to bring him home and try him here. “Meron naman na tayong umiiral na hustisya sa bansa, meron tayong sariling mga batas at korte, bakit pinayagan ng gobyerno na dakpin ang Pilipino sa sarili nating bayan?” Go said. (We have a working justice here, we have our own law and our own court, why did the government allow the abduction of a Filipino in our own country?)
That falls under admissibility, another important element of an ICC case. Under Article 17 of the Rome Statute, the case is not admissible if the country has already investigated and prosecuted the person for the crimes he is accused of in the ICC. There has been no such investigation nor prosecution against Duterte in any local court, whether for ordinary murder, or crimes against humanity as defined in RA 9851.
What if political winds again change, and there are local complaints against Duterte, what will happen?
A comparable case is that of Duterte’s fellow ICC detainee, Alfred Yekatom who is a rebel leader of CAR also accused of crimes against humanity by murder. In 2020, Yekatom challenged the admissibility of his case, saying that the local Special Criminal Court in CAR was now “working” and that “under these circumstances, the CAR authorities should be given an opportunity to open an investigation and prosecution.”
Only a month after, the ICC’s trial chamber rejected Yekatom’s challenge because local justice was only theoretical — that it could, not that it had been applied. The chamber said it couldn’t defer to the local system just to “promote a theoretical and presently non-existent investigation or prosecution of his alleged crimes.”
If Duterte wants to use this defense, what might work in his favor is, if the Marcos government would now start genuine criminal investigations into his alleged crimes. The House of Representatives quad committee recommended the prosecution of Duterte for crimes against humanity, but there has been no follow-up to that recommendation.
It’s a “let’s cross the bridge when we get there” scenario. As retired judge Pangalangan said: “Assuming that it is after the prosecution has completed the presentation of evidence, the court will already have enough information, I assume, to surmount the test of proof beyond reasonable doubt. I’m completely at a loss — what motion will be filed?” said Pangalangan.
Jurisdiction
As far as the two chambers of the ICC were concerned, the Court preserved jurisdiction over the alleged crimes that were committed when the Philippines was still a member, or from 2011 to 2019. Ironically, it was the Marcos government, with the help of Solicitor General Menardo Guevarra, who tried to attack jurisdiction in a last-ditch effort in 2023. But the appeals chamber in July 2023 skipped the question on jurisdiction, and voted 3-2 to allow the case to continue.
Apart from maintaining that they only followed the Interpol and the ICC, it seems that the Marcos government has formulated a new explanation. The ICC prosecutes and tries the acts of individuals, and it’s the United Nations court, the International Court of Justice (ICJ), that prosecutes and tries the acts of states.
“We surrendered an individual to the ICC who is a subject of a warrant of arrest, that’s what we did. We did not surrender as a country,” said Remulla. “We can be very technical about it if you wish to be, but the fact is — it is our accession to the Interpol which made all of this possible,” added Remulla.
Duterte can take advantage of the two dissenting opinions in July 2023, and bring these up again this time. But what he has going against him is that when the pre-trial chamber I issued the warrant of arrest, the judges approved the jurisdiction, agreeing with previous rulings that “as the alleged conduct has taken place between 1 November 2011 and 16 March 2019 on the territory of the Philippines, it falls within the Court’s jurisdiction.”
Confirmation of charges
The confirmation of charges hearing set for September 23 will mean that the judges will now raise their standard. In issuing the warrant, the judges used the standard of “reasonable grounds to believe.” In deciding whether or not to confirm the charges, judges will use the higher standard of “substantial grounds to believe.”
Here is where Duterte can object to the charges and offer defense that he did not commit the crimes he is accused of. “All the self-incriminating statements pronounced on many occasions by the suspect are making his position very weak and his defense very difficult, but the burden of proving the allegations will be only and exclusively on the prosecution,” said Donat Cattin.
It’s not all or nothing for Prosecutor Khan and Duterte at this point.
“If the judges decide that there is not enough evidence to confirm some or all of the charges, the prosecutor can submit additional evidence and request a new confirmation of charges hearing,” Maria Elena Vignoli, a senior international justice counsel at Human Rights Watch, told Rappler.
“The judges could also adjourn the hearing and ask the prosecution to consider providing more evidence or conducting further investigations in relation to a particular charge. In addition, they could ask the prosecutor to consider amending a charge if it appears that the evidence presented establishes a different crime,” said Vignoli.
For the current detainees of the ICC, their confirmation of charges hearings lasted from anywhere between three to nine days. Their charges were confirmed in full or in one to two months.
“While the case against Duterte is just beginning, it is a hugely significant moment that should remind us all of the importance of the ICC as a court of last resort, standing for equality before the law, with the potential to reach even those thought to be untouchable,” said Vignoli. – Rappler.com
