1 day ago
2
All parties involved in the crimes against humanity case against former Philippine president Rodrigo Roa Duterte have begun preparing for the September 23 confirmation of charges hearing and beyond, if it goes to trial.
The team of Prosecutor Karim Khan has until April 4 to send to the International Criminal Court (ICC) pre-trial chamber the list of evidence that it plans to present on September 23, including if they would want to request protection programs for witnesses.
Duterte’s defense team, led by British-Israeli lawyer Nicholas Kaufman, has until April 11 to tell the chamber what they anticipate they would do at the hearing — if they are prepared to present an alibi, call in their own witnesses, or present their own evidence.
Before September 23, the defense and the prosecution could go back and forth with requests, and there’s still a possibility that the date could be moved. Kaufman told Rappler he will seek to have the case terminated even before the confirmation of charges hearing.
If the confirmation of charges hearing pushes through, it’s possible that Duterte still won’t know who the prosecution’s witnesses are, because the list would be anonymized and represented only by numbers, said Filipino lawyer Ruben Carranza, a senior expert at the International Center for Transitional Justice (ICTJ).
“What he will learn and what his lawyers will learn are what the testimonies are about, and not who. The problem of course is if the testimony is very specific to an event, to a location, to a date,” Carranza told Rappler on Saturday, March 22.
Witnesses in general will be part of the prosecution’s evidence. Victims are of a different character and will be represented by counsels who will be appointed by the ICC later on.
Three of the six Filipino ICC-accredited counsels and assistant to counsels are known lawyers of victims — Kristina Conti of Rise Up, and Joel Butuyan and Gilbert Andres of the Center for International Law (CenterLaw). ICC will appoint one or even all of them as victim’s representatives.
Right now, victims are in the process of registering so they could formally be admitted and be able to address the court later on.
No threshold for crimes against humanity
In applying for the warrant, the prosecution presented evidence of 43 killings — a non-exhaustive list, said the pre-trial chamber when they approved it. They are “a representative sample of the multiple acts of violence referred to in article 7(1) [crimes against humanity],” said the prosecution’s application for warrant.
While human rights groups estimated the drug war killings under Duterte’s presidency to have reached between 27,000 to 30,000, the covered scope of killings in the ICC case would definitely be lesser because jurisdiction ended in 2019, the year when Duterte’s withdrawal from the ICC took effect. The alleged killings by the Davao Death Squad (DDS) from 2011 — the time when Duterte was Davao mayor — are covered because that’s when the Philippines became an ICC member.
There is no number threshold for systematic attacks to constitute crimes against humanity. To compare, the Lord’s Resistance Army (LRA) of Ugandan warlord Joseph Kony was estimated to have killed 1,200 people according to the United Nations Office of the High Commissioner on Human Rights. However, LRA commander Dominic Ongwen was convicted of only 61 counts of crimes against humanity and war crimes. In the Philippine case, even if vigilante killings are excluded, the police killings in the drug war already reach between 5,000 as noted by the prosecution, and 7,000 as reported to media.
The challenge for the prosecution is to establish the nexus between the individual crime (for example, a killing by the police in the drug war, or a killing by a DDS assailant) and the attack. The theory of the prosecution is that Duterte devised a “common plan” and that the individual crimes were committed as part of that common plan. Part of the proof are Duterte’s statements encouraging policemen to kill, along with admissions of DDS hitmen. Self-proclaimed hitmen Arturo Lascañas and Edgar Matobato are known to be witnesses.
We don’t know if there are insider witnesses who will implicate Duterte in the extrajudicial killings in the drug war. All we know is that the prosecution presented evidence that “police who killed a target on the list could access a covert reward system (which existed outside of the regular formal rewards system) and receive a payment ranging from P50,000 to P1 million, depending on the level of the target.”
“[The prosecution] may not have other evidence yet because it’s not over. It can still continue to collect evidence,” said Carranza.
What may be included in the additional case buildup are those for Duterte’s co-perpetrators, which may or may not include his police chief, the drug war architect, Senator Ronald “Bato” dela Rosa who was repeatedly mentioned in the application for Duterte’s warrant. “The other co-perpetrators who are determined to be the most responsible as well could be subject of a separate and collective warrant. They could do it methodically or one person at a time,” said Conti.
“There are different circumstances per person. In a sense, it depends on the facts on hand and I think even the political situation,” added Conti.
Interim release, jurisdiction
Many international law practitioners see it unlikely for the ICC to grant Duterte interim release because the conditions for it don’t seem to favor him. One of the three main conditions is that there should be no risk of Duterte obstructing justice by intimidating witnesses.
“You can imagine releasing Rodrigo Duterte to the Philippines will create a nightmare for monitoring restrictions…The reason why you arrest a person is to prevent him from obstructing justice…Giving an accused person who is still about to be tried interim release is very, very unlikely,” said Carranza.
Even if the interim release is not granted, Duterte can seek to drop this case outright by arguing that the ICC has no jurisdiction.
In July 2023, the appeals chamber majority of three voted to allow the investigation to continue, but skipped the question on jurisdiction. Two dissenting judges voted there is no jurisdiction.
The two dissenters said that under Article 127 of the Rome Statute, what is not affected by a country’s withdrawal is a procedure started by the court, not the prosecutor. When the withdrawal took effect in 2019, the prosecutor had started a preliminary examination only. The investigation was approved by the court only in 2021.
“Very technical for Filipinos, but I think it’s important to say that this is a substantial argument that I’m almost certain will be raised by Rodrigo Duterte’s lawyers. And they will be raised as soon as possible. They will be raised in the next couple of weeks and they will be raised before the September 23 confirmation of charges hearing,” said Carranza.
“It’s important to already rule on it because if the court were to say it has no jurisdiction, then there will be no trial,” Carranza added.
Conti said she’s confident the ICC chamber will rule it has jurisdiction. “I’m 100% confident…because even with the learned arguments, the court clearly had jurisdiction at the time the crimes were committed. Member na tayo ‘nung nangyari ‘yung krimen (we were members when the crimes happened),” Conti, who’s currently in The Hague to prepare victims’ representation, told Rappler on Saturday.
Preparing victims
Since Duterte was arrested, his supporters have been harassing victims who have appeared in the media. The Facebook accounts of the harassers seemed legitimate, one victim said, accusing families of being drug addicts.
Pro-Duterte supporters feasted on images of victims who were killed outside of the scope of the investigation, with one victim killed during the time of President Ferdinand Marcos Jr. Human rights groups want to send the message that everyone killed and persecuted under Duterte are victims, even though they will technically fall outside of the ICC’s coverage.
“What people fail to appreciate or understand is that the term victim could have technical meaning before the ICC, but for the Filipinos, it should include as many people as possible because we cannot diminish their victimhood,” said Conti.
Conti said they are anticipating to find out what the prosecution’s actual charges would be so they can begin briefing victims if they are technically part, or not part, of the ICC case.
“They have a lot of questions and apprehensions. Especially if we frame it in the context of work to do and possibilities. It sorts of clips their wings, and I didn’t want to do that at first, but we need to be as up-front with the victims as possible,” said Conti in a mix of English and Filipino.
If Duterte is convicted, reparations would extend only to those covered by the charges. Part of the preparations, Conti said, is to brief victims that reparations could come in the form of collective compensations, such as funding for a memorial, or even livelihood programs for communities.
Carranza, who specializes in transitional justice, said it’s important to have parallel efforts domestically to include the thousands of other victims who would fall out of the ICC scope. The Philippines passed a law, for example, to provide compensation to Martial Law victims even if the dictator Ferdinand E. Marcos was never convicted of similar crimes.
“And so in the work I do, for example, we help truth commissions that are not courts, that are not going to issue punishments, but will possibly name names, will unearth fact and history and talk about what happened from the perspective mostly of victim,” said Carranza. – Rappler.com
