To protect 55 witnesses, prosecutors seek 'special measures' during Duterte's ICC trial

THE HAGUE, Netherlands — With less than a month before the International Criminal Court’s (ICC) trial of Rodrigo Duterte, prosecutors are asking for “in-court protective and special measures” for 55 witnesses from the Philippines and abroad from various security risks.

Acting Prosecutor Mame Mandiaye Niang’s public redacted filing, dated November 5, requests that Trial Chamber III allow measures ranging from using pseudonyms and face and voice distortion to holding closed or private courtroom sessions or providing psychological support while testifying.

These special measures are intended to either “protect the witness’s (or another person’s) safety, physical and psychological well-being, dignity, and privacy,” or are warranted “in light of the high vulnerability of these witnesses,” or to “minimize the impact of testimony by providing psychological and emotional support to the witnesses.”

In the filing, Niang cited previous ICC trials to establish the need for protective and special measures, but much of the reasoning remains obscured.

It may be recalled that during the final status conference, senior trial lawyer Julian Nicholls told Trial Chamber III Presiding Judge Joanna Korner that the Office of the Prosecutor would submit its suggestions for in-court protective measures before Friday.

At that session, Korner reminded Nicholls and trial lawyer Edward Jeremy to provide suggestions, citing the need for certainty about concrete deadlines and to address “various ramifications”.

“Objectively justifiable risk”

The prosecution’s request was made under Articles 64 and 68 of the Rome Statute and Rules 87 and 88 of the ICC Rules of Procedure and Evidence that deal with protective and special measures for witnesses appearing before the Court.

During Duterte’s trial, the prosecution said it currently expects to rely on the evidence of around 78 witnesses, including 69 who are expected to face oral examinations or be admitted through Rule 68(3) of the ICC Rules of Procedure and Evidence.

The request covers six categories of witnesses: those in the Philippines who are (1) insider witnesses, (2) crime-based witnesses, (3) another redacted category of witnesses; (4) witnesses living abroad; (5) witnesses admitted into the ICC Protection Program (ICCPP), and (6) prosecution staff members.

Prosecutors said there is an “objectively justifiable risk” to the witnesses, who have flagged concerns about providing evidence, “with some making their cooperation contingent upon being provided anonymity.”

“The reported experiences of witnesses demonstrate that [REDACTED], witnesses face significant objective risks which require protection.”

Insider witnesses’ evidence: implicating Duterte and Bato

Some of the strongest security concerns the prosecution raised in the filing involved Philippine-based insider witnesses whose evidence concerns alleged extrajudicial killings during Duterte's term as mayor of Davao City and his presidency.

Their evidence also concerns specific charged incidents and, in some cases, those that prosecutors say directly implicate Duterte.

The filing states some insider witnesses may also provide evidence on the implementation of an alleged policy to neutralize people perceived or alleged to be involved in drug-related or other crimes through violence, including murder.

Prosecutors said some of this evidence may also implicate former Philippine National Police chief and current Senator Ronald “Bato” Dela Rosa, whom the filing describes as a co-perpetrator wanted by the ICC.

“[Dela Rosa] maintains sufficient influence and support in the Philippines to evade arrest based on an ICC warrant — which has now been public for five months, yet he remains at large,” the filing noted.

“Insider witnesses may further be at risk and the focus of renewed attention because of the unsealing of Dela Rosa’s arrest warrant.”

For some insider witnesses, prosecutors are asking judges to allow pseudonyms, face and voice distortion and limited private sessions.

For another redacted group of highly vulnerable insider witnesses, the prosecution is seeking pseudonyms and closed sessions throughout their testimony.

Other Philippine-based witnesses

The filing stated that the “vast majority” of prosecution witnesses reside in the Philippines.

“Crime-based” witnesses, who are all currently in the Philippines, are among those for whom prosecutors seek protection.

Their expected evidence likewise concerns alleged extrajudicial killings during the mayoral and presidential periods, charged incidents and, in some cases, allegations directly involving Duterte.

Prosecutors are asking for pseudonyms, face and video distortion, and private sessions where necessary for members of this group.

“In-court protective measures for witnesses in this category will ensure that they can give evidence freely without fear for their personal safety and without compromising their security or the security of their family members.”

For another group of witnesses residing in the Philippines whose category is redacted, prosecutors are seeking pseudonyms and closed sessions for their entire testimony.

The filing says these witnesses are considered particularly at risk because their evidence implicates Duterte and because of other circumstances withheld from the public version.

The prosecution said numerous witnesses have expressed concerns about giving evidence, with some making their cooperation conditional on remaining anonymous.

Some testimony may be closed to the public

The prosecution is asking for three broad types of measures: protecting witness identities from the public, holding closed or private sessions for sensitive portions of testimony, and providing psychological support.

The filing says private sessions may be treated as a protective measure under Rule 87 or a special measure under Rule 88, depending on the circumstances.

For some witnesses, prosecutors want pseudonyms along with face and voice distortion.

They said closed or private sessions would generally be requested only for limited portions of testimony when necessary, although the prosecution is asking that several highly vulnerable witnesses give their entire testimony behind closed doors.

Those witnesses living outside the Philippines are also covered by the request for pseudonyms, face and voice distortion, and private sessions when necessary.

Other witnesses included in the same request for protective measures have already been admitted into the ICC’s witness protection program.

The filing says revealing their identities could undermine the protection already afforded to them and potentially expose them and their families to continuing risks.

“[I]f any of [the ICCPP witness] identities were to become known, the whole purpose of their protection which has been afforded to the witnesses would be undermined, and they, together with their families would be at risk for an indefinite period of time. The accused has been given the full identifying details for these and is able, therefore, to deal with their evidence without restriction.”

Prosecution staff witnesses

The prosecution is also seeking protective measures for witnesses P-1439 and P-1440, both prosecution staff members.

P-1439 had previously testified in another ICC proceeding under protective measures, including a pseudonym, face and voice distortion, and private sessions.

For P-1439, prosecutors also cited the court’s Regulation 42(1), arguing that protective measures previously ordered in another ICC proceeding should continue to apply in Duterte’s case.

Prosecutors said P-1439 will be called to testify in Duterte’s case and asked that those existing measures remain in place.

P-1439’s testimony will corroborate the evidence from Rule 68(3) witness P-1161 and Rule 68(2)(b) witness P-1348.

No further information was mentioned about P-1440, as this witness has never been mentioned or referenced in any of the fourteen previous filings for Rule 68(2)(b) or Rule 68(3) applications.

The request remains subject to the approval of Trial Chamber III.

Duterte’s trial is scheduled to begin on November 30 before Presiding Judge Joanna Korner and Judges Keebong Paek and Nicolas Guillou.

He is facing three counts of crimes against humanity involving murder and attempted murder allegedly committed during his terms as Davao City mayor and Philippine president. — BAP, GMA News