Ex-president Duterte requests ICC chamber to require resubmission of charges

Former President Rodrigo Duterte’s defense team has requested the International Criminal Court (ICC) Trial Chamber III to direct the Prosecution to refile the charges against him for allegedly violating Duterte’s right.

In an 11-page document dated August 31, Duterte’s team argued that the DCC violates the former official’s right to be informed in detail of the nature, cause, and content of the charges against him.

Due to this, it appealed to the chamber to order the Prosecution to refile a document that frames the charges “in terms of counts with a defined scope, being crimes under the ICC Statute, and with an exhaustive list of underpinning acts.”

“The accused cannot even begin to make strategic decisions about how to approach this case, because he does not know what case he has to meet,” it said.

“The Duterte charges are a literal moving target; a non-exhaustive, illustrative list of events whose proof beyond reasonable doubt may or may not trigger liability for thousands of others, and whose evidential value remains entirely unclear,” it added.

In April, the ICC confirmed the charges against Duterte cover 49 incidents, which are divided into the following three counts:

Count 1: Murder as a crime against humanity in Davao City during the mayoral period of at least 19 victims, between 2013 and around June 2016, through indirect co-perpetration, ordering and/or inducing, and/or aiding and abetting;

Count 2: Murder as a crime against humanity of ‘high-value targets’ in locations across the Philippines during the presidential period of at least the 14 victims between around July 2016 and July 2017, through indirect co-perpetration, and/or ordering and/or inducing and/or 25(3)(c) (aiding and abetting); and

Count 3: Murder and attempted murder as crimes against humanity in barangay clearance operations in locations across the Philippines during the presidential period of at least the 45 victims (43 murders and two attempted murders) between around July 2016 and September 2018, through indirect co-perpetration, ordering and/or inducing, and/or aiding and abetting.

Duterte’s team noted that it received a notice of details of eight additional incidents submitted by the Prosecution, bringing the total list of incidents to 57.

“[C]onsistent practice has been for charging documents to be divided into topical headings, usually geographical areas with corresponding time periods, or overarching events,” it said.

“Under each topical heading, the counts are then listed together with the legal and factual basis being alleged in support of each. In this way, the accused is duly notified of the allegations in detail, as required,” it added.

According to his defense team, the framing of the DCC is “entirely different and entirely novel.”

“The topical headings have been elevated to the status of counts allegedly committed over an extended period and across a large geographical area,” it said.

The defense team said that a “count” has only ever denoted an individual crime under the ICC Statute. Meanwhile, it said the specific charged acts were relegated to the “status of non-exhaustive and illustrative-only incidents without legal characterization.”

“The Prosecution’s decision to frame the charges in this entirely novel way makes it impossible for the defendant to know what case he has to meet at trial,” it said.

The defense said that it would need to be ready to defend against any unlawful killing over a seven-year-plus period.

“Keeping in mind that the Prosecution had disclosed around 5,000 documents as at the date of the confirmation decision, which has now increased by over 400% to over 25,000 items at the date of writing, the Defence team has no chance of even reading this full volume of disclosure before the start of the trial, let alone being aware of every alleged murder or killing contained therein and being ready to defend against them,” it said.

Aside from this, the defense team said the current charges put the Trial Chamber in an impossible position.

It said that the Chamber must examine whether the act is part of the widespread or systematic attack, considered as a whole with due regard to the nature of the act at issue, its aims and consequences and knowledge of that nexus by the perpetrator of the act.

“Where there are no pleaded underlying acts, but rather only ‘non-exhaustive’ and ‘illustrative’ examples of alleged conduct by perpetrators, the Prosecution can circumvent these requirements,” it said.

“Meaning, that the trial could end with the Prosecution having done nothing more than establishing a certain number of ‘illustrative incidents’ but without any of the requisite contextual elements necessary to link the charged acts back to the charged counts,” it added. —LDF, GMA News