Spokesman: Issue decided on case-to-case basis
THE spokesman of the International Criminal Court (ICC) yesterday said the Philippine government must first accept “technical measures and conditions” before its judges consider any application for the interim release of former president Rodrigo Duterte.
Duterte is detained in The Hague while waiting for his trial on the crimes against humanity case filed by relatives of the victims of his brutal drug campaign.
ICC spokesperson Fadi El Abdallah told GMA-7 in an interview that the conditions for the interim release of suspects are discussed and set on a case-to-case basis.
In the case of Duterte, he said these need to be discussed before the judges of the Pre-Trial Chamber 1.
“The technical measures and conditions have to be decided on a case-by-case basis by the judges and have to be accepted by a certain state for it to be ordered by the judges,” Abdallah said.
“As a matter of general principle, all these conditions and questions need to be discussed before the judges,” he added.
The ICC official said that in the past, interim release has been granted to detained suspects but clarified that such a decision does not mean that the accused will be acquitted later on.
However, a check with ICC data showed that no accused charged with genocide or crimes against humanity have been granted interim release by the international tribunal in the past.
Duterte’s lead counsel Nicholas Kaufman has said they plan to seek the interim release of the former president before the confirmation of charges hearing that is set on September 23 this year.
“When I make an application for interim release, you’ll know about it because it’ll be published on the court website,” Kaufman has said in an earlier interview.
Under Article 58 of the Rome Statute, the ICC can consider several factors in deciding an application for the interim release of an accused, including the accused’s voluntary appearance during the trial of the case, the risk of obstruction to the investigation, and the possibility of continuing his alleged crimes.
If the 79-year old Duterte is granted interim release, the ICC Pre-Trial Chamber 1, aside from imposing conditions, may also conduct annual case reviews, and, if necessary, reissue an arrest warrant.
Lawyer and assistant to counsel at the ICC Kristina Conti said they will oppose any bid by Duterte’s camp for his interim release.
“We will oppose the move as it will be contrary to the victims’ interests as he himself poses a threat,” Conti said.
Conti earlier said she doubts Duterte will be granted interim release by the ICC because he is both a flight risk and a former president who could go after witnesses and even cover up evidence of his crimes.
MOVE ON
In a related development, Conti urged the Duterte camp, including his family to move on in their efforts to have the Supreme Court reverse the arrest and extradition of the former president and instead focus on his defense before the ICC.
“My unsolicited suggestion is that they talk to each other in their group chat and follow (Vice President) Sara’s lead to move on and engage the ICC directly,” Conti said in a News5 interview.
Conti was referring to the earlier concession of Vice President Sara Duterte that their father may no longer return to the country as she urged their supporters to move on.
Three of Duterte’s children – Davao City Rep. Paolo “Pulong” Duterte, Davao City Mayor Sebastian “Baste” Duterte and Veronica “Kitty” Duterte have filed separate habeas corpus petition before the SC, asking the magistrates to order the release and return of their father from ICC detention.
Conti said the SC petitions are futile.
“Ultimately, the SC proceedings could be an exercise in futility because there’s nothing anyone in the Philippines can do unilaterally and immediately. Not even the president can bring back Duterte without the ICC processes this time,” she said.
ICC JURISDICTION
Abdallah said the ICC has jurisdiction over crimes committed prior to Manila’s withdrawal in 2019 from the Rome Statute that created the ICC.
“The court jurisprudence has already indicated that the ICC retains jurisdiction even after the withdrawal of the state but only for the crimes committed during the period when the state was a state party to the Rome Statute,” he said.
He said that a withdrawal does not affect these obligations and the jurisdiction of the international court.
“It only affects the future,” he said.
The crimes for which Duterte was charged before the ICC were committed between 2011 to 2019 while the Philippines was still a member of the Rome Statute.
PH SOVEREIGNTY
Meanwhile, Senate President Francis Escudero yesterday said that the country’s sovereignty was not compromised when the Marcos administration allowed the former president to be arrested and turned over to the ICC.
Escudero said the charges against the 79-year-old Duterte were filed by Filipinos on their own volition and not with any interference from foreigners.
He said the complainants chose to file the cases against Duterte before the ICC, thinking that they will get justice there.
“Mga Pilipino ang nagsampa ng kaso sa ICC, hindi mga dayuhan. Pilipino rin ang nag-desisyon sabi nga ni Secretary Remulla, hindi ba, na gawin ito? Wala namang dayuhan ang naghimasok dito (Filipinos filed the cases against Duterte in the ICC, not foreigners. Justice Secretary Jesus Crispin Remulla even said that the decision was made by Filipinos alone. There were no foreigners who intervened),” Escudero said at the “Kapihan sa Manila Bay” media forum.
He also said the government did not infringe on the jurisdiction of local courts when it surrendered Duterte to the ICC since there are no pending cases of the same nature in the country against the former president.
“Wala namang pending na kaso dito laban kay dating pangulong Duterte para sabihin mong yung Pilipinong huwes na magpasya sa kasong ito at pinasa natin sa dayuhan dahil nga walang pending case…So, wala akong nakikitang pag-agaw, wika nga, ng jurisdiction ng korte sa Pilipinas kaugnay sa issue at bagay na ito
(There are no pending cases here against the former president to say that we deprived a Philippine judge the chance to decide on the cases because there are no pending cases against him… So, I do not see any basis to the claims that the government took away the chance of local courts to decide on any case against Duterte),” he added.
He also noted Remulla’s statement that the government based its actions on RA 9851, or the “Philippine Act on Crimes Against International Humanitarian Law, Genocide, and Other Crimes Against Humanity,” which allowed it to bring an accused individual to an international court to stand trial.
Escudero was referring to Section 17 of RA 9851 which states: “In the interest of justice, the relevant Philippine authorities may dispense with the investigation or prosecution of a crime punishable under this Act if another court or international tribunal is already conducting the investigation or undertaking the prosecution of such crime. Instead, the authorities may surrender or extradite suspected or accused persons in the Philippines to the appropriate international court, if any, or to another State pursuant to the applicable extradition laws and treaties.”
He also said he found it confusing that the Duterte camp is citing the country’s non-membership to the Rome Statute in claiming that Duterte’s arrest is illegal.
“Ayon sa mga abogado nila, hindi na valid yung ICC at Rome Statute sa Pilipinas dahil umalis na tayo doon. Bakit ngayon Rome Statue ang sina-cite nila na basehan na illegal iyon? Hindi mo puwedeng sabihin na hindi tayo sakop tapos gagamitin mo naman kapag convenient sa iyo (According to their lawyers, the ICC and the Rome Statute is no longer valid after the Philippines withdrew membership from it. But why are they now citing the Rome Statute as basis for the alleged illegal arrest? They cannot argue that the country is no longer under the jurisdiction of the ICC and then cite the Rome Statute when it is convenient for them),” he added.
“So sana maging klaro sila sa posisyon nila kaugnay sa Rome Statute. Binding and valid ba o hindi? Kasi kung binding and valid yun, eh di valid yung warrant of arrest, applicable ang Article 59. Kung hindi binding at valid yun, paano nila magagamit ang Article 59? You cannot have your own cake and eat it too (So, it is best if they will come up with a clear stand on the Rome Statute. Is it binding and valid, or not? Because if it is binding and valid, the warrant of arrest is valid. Section [Article] 59 [of the Rome Statute] is applicable. If it is not binding and valid, they cannot invoke Section [Article] 59. You cannot have your own cake and eat it too, so to speak),” Escudero said.
Article 59 of the Rome Statute discusses the arrest proceedings in the custodial state, where it says that: “A State Party which has received a request for provisional arrest or for arrest and surrender shall immediately take steps to arrest the person in question in accordance with its laws and the provisions of Part 9 (International Cooperation and Judicial Assistance).”
It also states that “a person arrested shall be brought promptly before the competent judicial authority in the custodial State which shall determine, in accordance with the law of that State, that the warrant applies to that person, the person has been arrested in accordance with the proper process, and the person’s rights have been respected.”
Based on past ICC cases, Escudero said there were eight out of 10 cases that the ICC did not look into the mode of arrest of an individual charged before it.
He also noted that the arrest of Duterte was made possible by an Interpol “diffusion notice” and not the actual warrant of arrest issued by the ICC.
“Ang basehan ng diffusion notice na yun ay ICC warrant (The basis of the diffusion notice is the ICC warrant of arrest),” he said.
EVIDENCE
The ICC Office of the Prosecutor said it has sent 181 pieces of evidence against Duterte to his defense team last March 21.
The 3-page document at the ICC website said these items were “organized under Pre-Confirmation INCRIM package 001, which remains confidential and is not publicly accessible.”
It added that the items comprised of materials cited in the warrant of arrest for Duterte “with the exception of those items notified to the Chamber and the Defense in the Prosecution’s related application under regulation 35 of the Regulations of the Court.”
The Pre-Trial Chamber 1 has ordered the prosecution and defense teams to disclose their evidence by April.
In an order dated March 21, the Pre-Trial Chamber directed the prosecution to submit the written evidence it intends to present in the confirmation hearing by April 4.
The confirmation of charges hearing is set on September 23 this year.
Aside from the written pieces of evidence, the prosecution was also directed to submit the number of written evidence it intends to present, and the original language of the evidence, as well as the language in which it will be made available.
The prosecution was also directed to submit the duration and original languages of such evidence and transcripts as well as its translations if it involved non-written pieces of evidences.
The prosecution must also submit how many persons, if any, it intends to present as witnesses to testify viva voce (oral rather than written testimonies).
Duterte’s defense team has until April 11 to submit its observations on the evidence and other submissions by the prosecution.
HONASAN
The Marcos government would not block the plan of former senator Gringo Honasan to submit a petition at the ICC to seek the return of Duterte to the country, but Communication undersecretary Claire Castro advised him to first coordinate with Duterte’s camp.
“Karapatan naman po niya kung anong nais niyang gawin, para ipagtanggol ang dating pangulong Duterte, pero mas mainam po siguro makipag-usap muna siya sa legal team ni dating pangulong Duterte, baka hindi naman po siya pansinin sa ICC (It is his right to do what he wants, to defend former president Duterte, but it would be best if he talks with the legal team of former president Duterte because the ICC might not acknowledge him),” Castro said.
She added that as far as the government is concerned, it would not do anything to support or block Honasan.
“Wala po tayong responsibilidad, wala po tayong gagawin anuman patungkol po sa legal system, legal procedures ng ICC (We do not have any responsibility, we will not take any action regarding the ICC’s legal system or legal procedures),” she said.
Honasan and city mayor Baste Duterte said they plan to submit a petition at the ICC to seek the return of the former president through a people’s initiative signature campaign.
SPARE AFP
The Armed Forces yesterday urged the Duterte camp to spare the military from the “political noise” in relation to the arrest of Duterte.
AFP spokesperson Col. Francel Margareth Padilla made the appeal during the “Bagong Pilipinas Ngayon” days after the vice president called out the military for standing idly by when her father was arrested last March 11.
The vice president, who appeared virtually before the Senate Committee on Foreign Relations’ inquiry into her father’s arrest on Thursday last week, questioned the legality of the former president’s arrest.
The vice president said the silence of the AFP on the issue was disturbing and asked why it merely watched while their former commander-in-chief was taken from a military base “under questionable circumstances.”
“We are a professional organization and our appeal is for us to be insulated from political noise,” said Padilla.
“We are laser focus on our mandate on national security, ensure the security of every Filipino,” she added.
Padilla said the military is also playing a key role in ensuring that the national and local elections in May will be peaceful and orderly.
Padilla reiterated that the arrest of the former president was primarily a law enforcement operation.
“So the role of the Armed Forces of the Philippines there was to assist in that law enforcement operation. That’s the only role played by the AFP,” she said.
“The Armed Forces of the Philippines remains to be a professional organization, we are united. What we are saying is there’s not even a need to conduct loyalty checks among our ranks,” she added, stressing that “our loyalty remains to the country, and to the (Philippine) flag and to our Constitution.”
Padilla reiterated that reports about the resignation of soldiers, supposedly to show support to the former president, that spread on social media are not true.
“There are no resignations in the AFP. If there are those who want to resign, the online platform is not the forum to do it. There are processes that every member of the of the Armed Forces has to go through,” she said. – With Jocelyn Montemayor and Victor Reyes
