Duterte's confirmation of charges at ICC: What to expect, what's next

Former President Rodrigo Duterte is set to face the International Criminal Court (ICC) Pre-Trial Chamber in the coming days for the confirmation of the charges against him, months since he was first presented before the tribunal.

Speaking with GMA News Online, University of the Philippines (UP) Law Assistant Professor Michael Tiu Jr. explained that Duterte's crimes against humanity case cannot proceed to a trial without the confirmation of charges on September 23.

"Ipre-present o babasahin ng prosecution 'yung charges, similar doon kapag binabasa 'yung information in our local courts, kung ano 'yung sakdal and then they'll present evidence," Tiu said in a Zoom interview.

(The prosecution will present or read the charges, similar to when the information is read in our local courts, what the charge is, and then they'll present evidence.)

"So the standard that they have to satisfy is that there should be sufficient evidence to establish substantial grounds to believe that [the] former president committed these crimes," he added.

(So the standard that they have to satisfy is that there should be sufficient evidence to establish substantial grounds to believe that the former president committed these crimes.)

Tiu is a key figure in the UP College of Law Institute of International Legal Studies. He was recently selected as Assistant to a Commissioner at the International Law Commission in Geneva, the UP College of Law has said.

According to the ICC, the Pre-Trial Chamber may decide to do the following at the close of the confirmation of charges hearing:

• Decline to confirm the charges; such a decision does not prevent the Prosecution from presenting a subsequent request for confirmation of the charges on the basis of additional evidence
• Adjourn the hearing and request the Prosecution to consider providing further evidence or conducting further investigation, or amending the charges
• Confirm the charges and commit the case for trial; upon confirmation, the Presidency of the Court constitutes a Trial Chamber responsible for the subsequent phase of the proceedings: the trial.

Duterte is facing charges for crimes against humanity over his controversial drug war, where government records showed that around 6,200 drug suspects were killed while human rights organizations say that numbers reach up to 30,000 due to unreported related slays.

To proceed, or not

According to Tiu, should the Pre-Trial Chamber decline to confirm the charge due to insufficient evidence, the trial will not proceed.

"In which case, while it's not a dismissal, ang epekto niya parang dismissal kasi hindi matutuloy 'yung kaso. Walang paglilitis na magaganap if hindi ma-confirm 'yung charges," he said.

(In which case, while it's not a dismissal, the effect is like a dismissal because the case will not proceed. There will be no trial if the charges are not confirmed.)

"Sometimes may mga charges na hindi maco-confirm. Mayroon din iba na ma-co-confirm. Isa lang naman ang kailangan, 'di ba, para magpatuloy sa trial," he added.

(Sometimes there are charges that cannot be confirmed. There are also others that can be confirmed. Only one is needed, right, for the trial to proceed.)

He said the confirmation of charges may take place in a single day or last a few days.

Starting the trial

Meanwhile, the ICC said that should the Pre-Trial Chamber confirm the charge, it will then commit the case for trial before a Trial chamber, which will conduct the subsequent phase of the proceedings: the trial itself.

The trial will take place in The Hague, unless otherwise decided.

The ICC said the accused must be present and the trial must be held in public, except when the Chambers decide otherwise to protect the safety of victims and witnesses or sensitive information.

The accused may then make an admission of guilt or plead not guilty.

The ICC said that if the accused pleads guilty, the Trial Chamber will consider the admission together with any additional evidence and may convict the accused.

However, if it is not satisfied, the Trial Chamber may consider the admission of guilt as not having been made and the trial will continue under ordinary procedures.

Presentation of evidence

The trial will then take place, where the parties may present evidence.

"Sa proocedings ng trial, I think medyo nagmi-mirror [ang Pilipinas at ICC], meaning 'yung prosecution maunang magpresenta, tapos puwedeng mag cross-examine 'yung defense, and then defense naman pagkatapos," Tiu said.

(In the proceedings of the trial, I think [the Philippines and ICC] somewhat mirror each other, meaning the prosecution presents first, then the defense can cross-examine, and then it's the turn of the defense afterwards.)

According to Tiu, the presentation of evidence will be different in the ICC compared to the Philippines, wherein hearsay and other types of evidence are inadmissible.

"Dito, kasi hindi ito strictly civil law, hindi din ito common law—, parang halu-halo 'yung mga legal tradition sa ICC, puwede 'yung mga hearsay [at] hindi kailangan ng corroboration all the time," he said.

(Here, since this is not strictly civil law, nor is it common law—, it's like a mixture of legal traditions in the ICC, hearsay can be allowed [and] corroboration is not always required.)

Assessing the evidence

Due to this, Tiu said the proceedings will "boil down to credibility and probative value." 

"Maraming puwedeng tingnan 'yung Korte tapos bahala na siya 'kung mabigat ba 'yung weight o pinaniniwalaan ba niya 'yung evidence," he said.

(There are many things the Court can look at and then it will decide whether the weight is substantial or whether it believes the evidence.)

So far, the ICC Prosecutor has submitted 12 batches of evidence, each containing items that range from hundreds to thousands.

More than 300 drug war victims have also applied to participate in the case.

Voice of victims

Meanwhile, another difference in the trial proceedings between the ICC and the Philippines, according to Tiu, is the legal representative of victims in the ICC.

He said victims may present observations during the trial.

"'Yung victims, through their common legal representatives, pupuwede sila mag-file ng mga observations. So kung mayroon silang—, halimbawa, may pinag-aawayan na isyu ang prosecution at defense, pupuwede magsumite 'yung common legal representative ng kanilang mga pananaw doon sa mga pangyayari," he said.

(The victims, through their common legal representatives, can file observations. So if, for example, there's an issue between the prosecution and the defense, the common legal representative can submit their views on those matters.)

How long will the trial last?

Tiu, meanwhile, said trials in the ICC may last from one to two years. He said he expects Duterte's trial to end within a year should the ICC focus on it.

According to the international tribunal, the promulgation of the sentence will be made in public and if possible, in the presence of the accused, victims, or their legal representatives.

Compensating the victims

If the accused is found guilty, the ICC may also provide reparations to victims. Victims may receive this individually or as a group.

"Magpre-presenta din 'yung prosecution and the common legal representative of victims nu'ng either mag-agree sila na sa lahat ng kaso ng murder ito 'yung kailangan matanggap ng pamilya o dahil sa isang kaso na ito, mas malala 'yung nangyari sa kanya… so magkakaiba sila ng amount," Tiu said.

(The prosecution and the common legal representative of victims will also present whether they agree that all victims in the murder cases should receive this amount, or that in a particular case, because something worse happened to the victim, the amount should be different… so the amounts may vary.)

Based on a video explainer of the ICC, this includes the giving of monetary compensation, rehabilitation, or medical support.

Who pays?

However, Tiu said the accused will solely shoulder the reparation and will not be passed down to his children.

"I suppose mahahagip din 'yung mga assets nila, 'di ba kasi magmamana naman sila. Pero hindi ito mapapasa kasi hindi naman sila 'yung nilitis," he said.

(I suppose their assets will also be affected, right, since they would inherit. But this will not be transferred because they are not the ones on trial.)

Tiu also said that if the assets of the accused are not enough, the ICC has a trust fund for the reparation of victims.

Duterte was arrested on March 11 at the Ninoy Aquino International Airport in Manila after arriving from Hong Kong. Shortly after, he was transferred to ICC in The Hague. 

His allies and children have filed various petitions with the Supreme Court over his arrest and transfer, arguing that the ICC has no jurisdiction in the country.

The Philippines withdrew from the Rome Statute, which established the ICC, in March 2019 during the Duterte administration. — VDV, GMA Integrated News