Filipino lawyers explain circumstances surrounding Duterte's ICC arrest
Filipino lawyers, including a former judge of the International Criminal Court, weighed in on the circumstances surrounding the arrest of Rodrigo Duterte amid his alleged crimes against humanity as Philippine president and Davao City mayor.
During the "Legal Developments in the Situation of the Republic of the Philippines: A UP Law Faculty Colloquium on the International Criminal Court" livestream on Facebook on March 14, retired ICC judge Raul Pangalangan said international tribunals are a class of themselves as he noted how circumstances surrounding Duterte's arrest were unique.
"Duterte doesn't have a visa entering foreign territory. Yet he was allowed to enter," Pangalangan pointed out.
Though other passengers were prevented from disembarking the plane at first, the Netherlands' immigration authorities intervened. They gave two-day visas to those who escorted Duterte, including his nurse and aide, to allow them to rest and recover for their return flight. Salvador Medialdea, former executive secretary whom Duterte tapped as legal counsel, was issued a 15-day visa.
Pangalangan also noted that the long-standing local practice of lawyers coaching their witnesses for trial is a crime for ICC standards.
"It is simply unthinkable... Lawyers have been jailed for that," he said.
The ex-ICC judge also noted that no criminal case at The Hague can move forward unless there are witnesses, whom he noted are "highly protected" by the court.
He called on Philippine lawyers and organizations to urge witnesses to testify in Duterte's case.
Duterte at the ICC
Duterte's initial ICC appearance is set on March 14 at 9 p.m. local time.
Michael Tiu Jr., the head of the international criminal law program of the UP Institute of International Legal Studies, noted that according to Article 60, Duterte would make an initial appearance before Pre-Trial Chamber I where judges would verify his identity and the language in which he would be able to follow the proceedings. He will be informed of the charges against him and of his rights under the ICC Rome Statute.
The confirmation of charges will follow, during which the judges will decide whether the prosecution has presented enough evidence for the case to go to trial.
He noted that there must be concrete and tangible evidence in support of the charges. If the charges are confirmed, it could be months before the case eventually goes on trial, and years before a final judgment is rendered.
Tiu said Duterte may apply for interim release pending trial under certain conditions. These include not traveling beyond territorial limits, associating with certain persons, not contacting victims or witnesses, engaging in certain professional activities, residing in a specified address, responding to the ICC when summoned, posting bond, and supplying all identity documents particularly the passport.
Duterte also has several rights, including being informed in detail about the charge in a language he fully understands and speaks, to have the assistance of an interpreter, and not being compelled to testify and remain silent.
As for the victims, they may share their views and concerns in the case. They must give their testimonies in person as much as possible, if not do an oral or recorded one.
The prosecutor, according to Tiu, has to prove that the accused killed one or more persons, the conduct was committed as part of a widespread or systemic attack against a civilian population, and that he knew it.
Penalties include imprisonment for a maximum of 30 years, fine, and a forfeiture of proceeds, property, and assets derived from the crime.
The judgment may also be appealed, whether it's a conviction or an acquittal.
Proving crimes against humanity
Ruby Rosselle Tugade of the UP College of Law spoke about how to ground Duterte's crimes against humanity case on a more practical dimension.
In the Philippines, Tugade noted that crimes or felonies are proven using elements found in the Revised Penal Code. But in international criminal prosecutions, she said contextual elements are proven on the first level of analysis in conjunction with the specific act, such as murder, torture, rape, forced disappearance, and persecution.
"In this sense, it is quite inaccurate to say that crimes against humanity is merely a predicate crime," Tugade said. "The crime of humanity against murder is the crime itself."
Tugade said open-source information may count as evidence, like transcripts from the Presidential Communications Office and Duterte's orders, as caught on record, regarding the killing of drug users. Tugade stressed that such crimes must constitute a pattern.
She noted that Duterte was an indirect co-perpetrator, meaning it requires the detailed analysis of the organizational structure through which the crime was committed. It's different from command responsibility, which is more focused on failure to exercise control over something. Article 28 defines it as being "criminally responsible for crimes within a jurisdiction of the court committed by subordinates under his/her effective authority and control as a result of his/her failure to exercise control properly over such subordinates."
Tugade also added the gathering of linkage evidence, which pertains to the chain of command, the reward or incentive system, and who gave the orders.
On Duterte's age and health
As to concerns regarding Duterte's age or health, Tiu noted that the ICC caters to an accused's rights and needs.
Upon arrival in The Hague, Duterte, who's turning 80 his month, an ICC nurse conferred with his personal nurse on his medical condition and requirements. The ICC nurse has relayed the information received to the ICC medical doctor for Duterte's check-up upon arrival at the ICC Detention Center.
Pangalangan also mused over some likely scenarios, casting doubts that Duterte would be allowed hospital arrest due to supposed frailness, noting that he has personally seen the jail facilities in Scheveningen.
"It's a modern facility and it's largely empty," he said. "I don't think sending VIP patients to a hospital fits the situation at The Hague because the jails there have excellent facilities," he said. "Any needs of a patient short of a grave medical emergency can be addressed by existing facilities in their penitentiary."
As the trial could take years, if Duterte dies before conviction and there are no reparations to victims, he noted that there's a trust fund to carry out an award and assistance to the victims.
The accused's assets would also be attached to the case to answer for liabilities to the victims.
Pangalangan also called out criticisms as to why Duterte is being tried overseas now and how people are criticizing the ICC for supposedly meddling in Philippine affairs, especially that it was no longer a member-state in 2019 after Duterte withdrew the previous year. (The ICC has said it has jurisdiction over crimes that happened while the Philippines was still a member-state.)
He noted that the Philippines had the "first shot" to try Duterte for his crimes but didn't conduct any investigation.
"There is simply no case in the Philippines," he said. "There were thousands of killings... the wheels of justice have moved quite slowly."
"If at all, it is the duty of the custodial state," he continued.
Duterte's arrest
Duterte was arrested on March 11 and was brought to the Villamor Air Base upon arriving at the Ninoy Aquino International Airport from Hong Kong.
His arrest had been years in the making, beginning in October 2016 when then-ICC prosecutor Fatou Bensouda said they were watching the Philippines closely as killings under the Duterte administration were on the rise just four months since he assumed office.
As stated in the warrant obtained by The Philippine STAR, he was arrested for murder, torture, and rape—which are part of the 15 forms of crimes against humanity under the Rome Statute—in connection with his administration's bloody war on drugs called Oplan Tokhang that saw the execution of thousands of suspected drug peddlers, users, and small-time criminals.
He left the country at 11:03 p.m. of the same day and arrived at the Rotterdam The Hague airport at 11:54 p.m. (Philippine time) the following day.
At the forum, Ted Te of the UP College of Law took note of petitions filed by Duterte's children before the Supreme Court to challenge the legality of his arrest.
That includes one from Davao City 1st District Rep. Paolo "Pulong" Duterte, who filed a petition for writs of habeas corpus and certiorari, and prohibition with a prayer for a temporary restraining order. It was consolidated with previous filings from his siblings Sebastian "Baste" Duterte and Veronica "Kitty" Duterte. Former police chief Sen. Ronald "Bato" Dela Rosa and ex-president Duterte also filed the same petition.
The high court has raffled the petitions of the Duterte siblings, who seek Duterte's immediate release and return to the Philippines.
The SC had denied Dela Rosa's TRO request not because it was moot and academic (since Duterte was already at The Hague) but because there was no clear legal right that was detailed in the petition, Te noted.
Te noted that the Philippines has no legal precedent yet regarding an order from our local court affecting someone outside the country.
"What has piqued my interest in this situation is the interplay of domestic remedies in relation to the international situation," Te said.
He cited as an example United States President George W. Bush's war on terror case versus Boumediene, in which the U.S. Supreme Court ruled that a non-American citizen who was detained in a U.S. territory (i.e. Guantanamo) is entitled to a federal habeas corpus.
"We don't have yet a similar ruling because this issue has never been presented to the court," Te said of the filings regarding Duterte's arrest. "The question of whether the (Philippine) Supreme Court will scratch that itch is something that I'm also looking forward to."
Te also advised the SC to take the "easier way out," which is to declare the filings as moot and academic simply because Duterte is already under the ICC custody.
In the open forum, Te noted that Duterte's arrest was "by the book" though was still different, as Duterte was read his Miranda rights despite not facing a criminal offense on Philippine soil.
Te also noted that the SC is a "practical court" that "cannot review the ICC warrant," regardless of how "we may think of the court."
"The opportunity was there to prosecute him for many years. They did not," he said. "Had they filed it, they could exactly invoke complementarity and prevent trial at the ICC."
