ICC prosecution rejects Duterte team’s bid to DQ judges

Former President Rodrigo Duterte’s legal team has taken a step to formally challenge the jurisdiction of the International Criminal Court over his arrest for alleged crimes against humanity. —File photo

MANILA, Philippines — The prosecution of the International Criminal Court (ICC) has refuted the claim of the defense team of former President Rodrigo Duterte that ruling on legal issues more than once will lead to bias or conflict, saying that judges “enjoy a presumption of impartiality.”

In a May 22 filing, the prosecution said that Pre-Trial Chamber (PTC) I judges “regularly adjudicate the same, or similar, legal issues” as allowed by the Rome Statute and they are “aware of the limits” of preliminary findings.

“The defense should be rejected because it fails to call into question the presumption of impartiality attached to the judges,” read part of the eight-page document.

READ: Duterte now wants ICC judges disqualified

“Contrary to the defense’s position, the judges have not ‘already predetermined’ the outcome of the jurisdictional dispute in [the prosecution’s] favor,” it added.

The latest filing of the prosecution was in compliance with the order by the ICC’s plenary of judges to respond to the defense’s May 14 request for the disqualification of PTC I Judges Reine Adelaide Alapini-Gansou and Maria del Socorro Flores Liera, particularly on the challenge of jurisdiction over Duterte.

Both judges were part of the previous chamber that allowed the ICC prosecutor in 2021 to open a probe into the drug war killings and to resume the stalled investigation in 2023.

The prosecution’s response was signed by Deputy Prosecutor Mame Mandiaye Niang, one of the two deputy prosecutors who took over the Office of the Prosecutor after Prosecutor Karim Khan stepped aside two weeks ago to give way to an investigation into allegations of sexual misconduct.

Limited mandate

The prosecution stressed that the PTC, when it issued the arrest warrant against Duterte in March, explicitly recognized the “limited mandate” at the early stage of the proceedings when it said: “The chamber finds, on the basis of the materials submitted and without prejudice to future determinations on the matter, that the case against Mr. Duterte falls within the jurisdiction of the court.”

Presuming that judges “become conflicted” at a certain stage of the proceedings after having issued rulings “is legally untenable” and will mean that a chamber would have to be reshuffled every subsequent decision, including after the issuance of an arrest warrant, it noted.

This, in turn, would “paralyze the functioning of the court” and even new judges could decide on a single issue, the prosecution said.

The move by the defense followed its earlier “invitation” for Alapini-Gansou and Liera to excuse themselves from deciding on the issue of jurisdiction. But this was denied by the PTC I on May 6.

Duterte is currently detained at the ICC detention facility in The Hague, the Netherlands. He is awaiting the proceedings in his murder case as a crime against humanity in connection with the brutal drug war he waged as Davao City mayor and later, as President. He is scheduled to appear before the court again in September for the confirmation of his charges. /cb