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MANILA, Philippines — Rodrigo Duterte's confirmation hearings before the International Criminal Court have elicited mixed reactions, partially reflecting political allegiances. Supporters say the defense successfully undercut the prosecution's theory of the case, while those aligning with the drug war victims' families believe the evidence shown clearly warrants a full trial.
For former ICC judge Raul Pangalangan, a professor at the University of the Philippines College of Law, the arguments on the merits appear to satisfy the court's standard of "substantial grounds to believe" required to proceed to trial.
In an interview with ANC's "Headstart" on Tuesday, March 3, Pangalangan said the evidentiary threshold at the confirmation stage "is not as high as that for conviction," where the prosecution's evidence must establish guilt "beyond reasonable doubt".
"What we have here is merely the confirmation of charges, just the prosecutorial viability of the case. So I think we must also recognize that the function of the defense here is merely to punch holes in the case of the prosecution," he said.
Holes in Duterte's defense
Pangalangan explained that while prosecutors were able to present proof showing that killings occurred during Duterte's drug war, their biggest challenge was establishing the "modes of attribution" — the legal basis for linking the alleged crimes against humanity of murder and attempted murder directly to Duterte.
That, he said, was the question raised by Duterte's lead counsel, Nicholas Kaufman, who asked whether the former president had in fact ordered the killings. The line of argument was consistent with the defense's position, which, as Pangalanan said, bears no burden to prove anything under the presumption of innocence afforded to the accused.
However, the former ICC judge also believes that some of the defense's counterarguments, including how the term "neutralize" meant "arrest" rather than "kill", could be challenged. He argued that even if the word did not, in theory, mean to kill, Duterte would at some point have been aware that it was being "interpreted as kill".
"If they say neutralize didn't mean kill, what about all the other 100 times where Duterte actually used the word kill, the word 'patay,' 'patayin'?" Pangalangan said.
"But even assuming those words were not taken editorially, in the context of murder as a crime against humanity, he (Duterte) already knew that it was being construed as kill by his people at Davao," he added.
Pangalangan also argued that illegal drug users or suspected criminals are legally considered civilians, and that attacks directed against them may constitute crimes against humanity.
He then stressed that the "scale of the killings," involving thousands of deaths, could satisfy the requirement that the murders were committed as part of a widespread attack against a civilian population.
Why the prosecution named co-perpetrators
About a week before Duterte's confirmation hearings, the prosecution released a less-redacted version of the document outlining the charges, which revealed the names of eight identified co-perpetrators allegedly involved in the common plan that carried out the war on drugs.
Kaufman raised this issue during the defense’s counterarguments, finding it difficult to build a more compelling defense when insider witnesses' identities remained protected by the court, while those of the alleged co-perpetrators were no longer confidential.
Pangalangan said he believes the prosecution publicly disclosed the names of the eight other co-perpetrators to make it easier to present their arguments about the common plan, allowing them to refer to the accused by name.
He said this was evident when the prosecution presented clips and statements from co-perpetrators who held high government positions during Duterte’s administration, including Senators Bato dela Rosa and Bong Go.
"I suppose they felt it was more difficult to establish the common plan if the only name they can mention the co-perpetrators, or what we call in the Philippines co-conspirators," Pangalanan said.
Working judicial system in the Philippines?
Ahead of the confirmation hearings, debate had already emerged over whether the drug war's extrajudicial killings should have been tried domestically.
While some said Philippine courts should have taken the lead, others — largely Duterte supporters — insisted that local courts remain fully capable of handling the cases and that the ICC no longer has jurisdiction.
Meanwhile, families of drug war victims and human rights advocates argued that shortcomings in the domestic justice system make the ICC's intervention all the more necessary.
According to Pangalangan, the assertion that the local justice system was operating properly is challenging to defend. In the face of thousands of reported killings, he said, the judicial system did not stop them, nor did they conduct exhaustive investigations into the killings. It was precisely for this reason that the ICC was created.
"So for me, to say that this judicial system was working is quite a stretch," he said.
He said the most likely reason some prefer Duterte's trial to be held in the Philippines is "the fact that they know the chances of acquittal would be higher" in local courts.
"Our judicial institutions are vulnerable to their power, their pressure. So sa akin, before we talk about what ideally should happen, let's face the fact that this is a very practical strategic wish of these parties," Pangalanan said.
"They know they can get away with it in the Philippines and that's why they want to be tried in the Philippines," he added.
Duterte's confirmation of charges hearings were held from February 23-27. The prosecution charged him with three counts of crimes against humanity of murder and attempted murder, covering a total of 49 incidents and 78 victims.
The Pre-Trial Chamber I has 60 days from the day it concluded hearings to decide whether or not Duterte's case should proceed to a full trial.
