FORMER president Rodrigo Duterte’s defense has asked the International Criminal Court (ICC) to strike out the charges against him, arguing that the prosecution’s case is a “literal moving target” because its list of incidents can expand and the defense does not know precisely what it must contest.
In a motion filed Aug. 31 but only made public over the weekend, Duterte’s defense asked the ICC Trial Chamber to order the prosecution to re-file its document containing the charges with clearly defined counts and an exhaustive list of the acts underlying the charges.
Duterte is charged with murder and attempted murder as crimes against humanity. The prosecution’s charging document initially identified 49 incidents as examples supporting three charges, but the defense said it was notified on Aug. 31 of eight additional incidents, bringing the proposed list to 57.
The defense, led by British lawyer Peter Haynes, argued that the prosecution’s treatment of these incidents as “illustrative” and “non-exhaustive” violates Duterte’s right to be informed in detail of the nature, cause and content of the charges against him under Article 67(1)(a) of the Rome Statute.
It said the current structure leaves Duterte uncertain about what the prosecution must prove to obtain a conviction.
The three charges cover alleged murder as a crime against humanity in Davao City during Duterte’s mayoral period from 2013 to around June 2016; alleged murder of “high-value targets” in locations across the Philippines during his presidential period from around July 2016 to July 2017; and alleged murder and attempted murder in barangay clearance operations across the Philippines from around July 2016 to September 2018.
The defense said the third charge encompasses murder and attempted murder over more than two years and across an area of about 300,000 square kilometers.
It argued that the three charges were framed as broad topical headings rather than specific crimes supported by defined facts and circumstances.
The defense said 19 victims spanning nine incidents were listed under the first charge, 14 victims in five incidents under the second, and 45 victims in 35 incidents under the third.
It stressed, however, that these incidents were characterized as non-exhaustive examples of the alleged criminal conduct.
This, the defense argued, makes it unclear whether the prosecution must prove every incident, most of them, more than half, or only one incident under each charge.
It also questioned what effect failure to prove a significant number of the 57 incidents would have on the prosecution’s broader allegations of “at least hundreds” of murders during Duterte’s mayoral period and “thousands” during his presidency.
The defense warned that if the prosecution could secure a conviction based on only one illustrative incident, Duterte could potentially be held individually responsible for thousands of other alleged killings without those killings themselves being proven.
“This cannot be reconciled with basic principles of individual criminal responsibility,” the defense said.
The lawyers also raised concerns about the volume of evidence disclosed by the prosecution.
They said the prosecution had disclosed about 5,000 documents when the charges were confirmed but that the number had increased by more than 400 percent to more than 25,000 items.
The defense said it would not be able to review the entire disclosure before trial, which is set to start on Nov. 30, and noted that some newly disclosed materials appeared to concern alleged killings unrelated to the 57 listed incidents.
The defense said this raised the possibility that it could be required to prepare for allegations involving killings not specifically identified in the charging document.
It warned that, in practice, it could be forced to defend against any alleged unlawful killing in the Philippines over a 7-year-plus period.
The lawyers also argued that the prosecution’s approach could allow it to prove selected “illustrative incidents” without establishing the necessary connection between each charged act and the alleged widespread or systematic attack against a civilian population.
The defense cited ICC jurisprudence recognizing the right of an accused to be informed in detail of the charges and the connection between that right and the ability to prepare a defense.
It asked the Trial Chamber to declare the current document containing the charges unfit and order the prosecution to re-file it before the Pre-Trial Chamber.
The new charging document, the defense said, should define the charges as crimes under the Rome Statute and provide an exhaustive list of the underlying acts that constitute the entirety of the charges against Duterte.
