ICC prosecution, Duterte defense clash over drug war deaths dataset

The prosecution team of the International Criminal Court (ICC) and lawyers for former president Rodrigo Duterte clashed over a dataset on drug war fatalities on Tuesday.

During the ICC Trial Chamber III’s fourth status conference, Presiding Judge Joanna Korner asked whether the prosecution had reviewed each document for its relevance to the case.

“We have got to try to sort this out. First thing, I need to know, Mr. Nicholls, from you, because it’s not clear from what you say, has the prosecution actually reviewed the database for the relevance of each individual item?” Korner said.

ICC prosecutor Julian Nicholls said the prosecution had reviewed the documents with the help of experts. Based on official Philippine National Police (PNP) records, they had identified more than 3,400 drug war deaths from July 2, 2016, to November 27, 2017.

“The analytical memo, which we have disclosed… they have counted these. These are official PNP documents, turned over… official PNP documents. I’ll leave it at that. And they have counted up to 3,422 deaths. Our proposed agreed facts are that the number is 3,400 deaths,” Nicholls said.

Nicholls added that the findings were also supported by a report from the Presidential Communications Operations Office, now known as the Presidential Communications Office.

However, he said the prosecution and the defense had yet to reach an agreement, despite the prosecution’s invitation for Duterte’s team to review the cases with them individually.

Korner noted that the documents had apparently not been reviewed individually by lawyers, stressing that the process had to be undertaken despite the resources it would require.

“I know it uses a lot of manpower, but it is something you have to do,” she said.

Duterte’s defense counsel, Peter Haynes, meanwhile, argued that the prosecution should refile the documents, raising concerns about the alleged use of artificial intelligence (AI) in reviewing the dataset.

“The Prosecution hasn't done it humanly; they effectively passed it through AI,” Haynes said.

Nicholls disputed the allegation, maintaining that the data had been reviewed entirely by humans.

Korner said the judges had reviewed the prosecution’s summaries but noted that these did not identify evidence that could be exculpatory, or potentially clear Duterte of the charges.

“It seems to us in this stage, there is not a great deal that we can do about this unless both sides get together and reach some agreement however,” Korner said.

“We take the view that the prosecution should review the database and any other documentation that it’s proposing that’s in its possession to indicate clearly to the defense what documents or materials could be considered exculpatory. I think that’s the main and overarching task that the prosecution must carry out,” she added.

She said that defense should take the prosecution’s offer to assist in the examination of the database on the drug war deaths.

“I want to make quite clear that your motion that the evidence should be re-filed in JWP (Judicial Workflow Platform), and the prosecution limit it to 10,000 documents is, at the moment, refused,” Korner said.

However, Korner said that the court could not yet limit the number of evidentiary items the prosecution could present, as doing so could risk violating the prosecution’s disclosure obligations.

Nicholls said the prosecution wants to reach an agreement with the defense on the number of deaths in police operations during a specific period to expedite the proceedings.

“We did talk during the break. We haven’t agreed. But one offer again is to have an independent expert to take a look, that we agree on,” Nicholls said.

In an interview in The Hague, Kristina Conti, an ICC counsel representing victims of the war on drugs, said the dispute over the number of deaths could become a major obstacle in the proceedings.

“Sa ngayon may 57 incidents na pag-uusapan dito, pero labas dito ay may 3,400 killings na gustong ipa-stipulate ng prosecution at mukhang dito tayo sasabit dahil maraming usapin kung ganon kalaking numbers na DIPO (deaths in police operations),” Conti said.

(At present, there are 57 incidents to be discussed here, but outside these are 3,400 killings that the prosecution wants to have stipulated. This appears to be where we could encounter difficulties because there are many questions when dealing with numbers as large as these involving deaths in police operations.”)

Conti said the prosecution and defense needed to resume discussions to resolve their differences over the documents.

“Yung major contention ay yung pag-admit sa bilang killings mula July hanggang November 2017. Sabi ng prosecution, may document for 3,400. Sabi ng defense, ‘Yung inyong database nyo, di nyo naman binasa nang maayos, kaya di namin at all sisilipin yan,’” she said.

(The major point of contention is the admission of the number of killings from July to November 2017. The prosecution says it has documentation for the 3,400 killings. The defense says, ‘You did not properly examine your own database, so we will not even look at it.’)

While acknowledging that both sides had arguments to make, Conti criticized what she viewed as the defense’s lack of cooperation with the prosecution.

“Kailangan sila mag-usap ulit. Medyo nagmamatigas ang defense kasi kailangan nila lumambot kasi di yan magmomove forward,” she said.

(They need to talk again. The defense is being somewhat stubborn, and they need to soften their position because this will not move forward otherwise.)

Conti also questioned the time the defense reportedly expected to need to process the documents, saying the review should not necessarily take a year given the resources available to the parties.

“Hindi ko makita yung point na one year daw ipaprocess. Ngayong hawak mo na yung document, baka naman di aabot ng one year with the resources that they have,” she said.

(I do not see the point of saying that it would take a year to process. Now that they have the documents, perhaps it will not take a year, given the resources they have.)

Meanwhile, Haynes stressed during the status conference that both sides had been cooperating extensively.

“I don’t want you to get the impression that we are miles apart. We are quite collegiate in many ways,” Haynes said. —with Sophia Balod-Lorenzo in The Hague/VBL, GMA News