THE International Criminal Court (ICC) has ordered prosecutors to remove one alleged incident from the case against former president Rodrigo Duterte after finding that it fell outside the time frame of a confirmed charge, while rejecting the defense’s broader challenge to the form of the charges.
In a decision dated Oct. 9, Trial Chamber III ruled that Incident 57 could not be included under a charge covering the alleged murders of high-value targets across the Philippines between around July 2016 and July 2017.
The chamber directed the prosecution to update its list of witnesses, list of evidence and trial brief by Oct. 16 to reflect the incident’s removal.
The ruling partially granted Duterte’s second motion challenging eight additional incidents introduced by the prosecution on Aug. 31.
The chamber, however, rejected his first motion seeking to compel prosecutors to refile the Document Containing the Charges (DCC).
Incident 57 was alleged to have occurred on or about a redacted date. The chamber found that it fell outside the temporal scope of Count 2, which covers the alleged murder of high-value targets between around July 2016 and July 2017.
The judges held that the period specified in the confirmed charge established a defined beginning and end. Although the word “around” allowed some flexibility in determining when a particular incident occurred, it could not be used to expand the overall period covered by the charge.
“The Prosecution cannot now be permitted to broaden the temporal scope of the confirmed charges beyond the defined period the Prosecution itself established,” the chamber said.
It added that maintaining the limits of the confirmed charges protected Duterte’s right to understand the factual basis of the accusations against him and prepare his defense.
The chamber found that six other incidents, numbered 50 to 55, fell within the factual, geographical and temporal scope of Count 3. Incident 56 was also found to fall within the scope of Count 2.
Count 3 concerns murder and attempted murder as crimes against humanity allegedly committed during barangay clearance operations across the Philippines between around July 2016 and September 2018.
Defense challenge rejected
In rejecting Duterte’s first motion, the chamber said it had no authority to order prosecutors to refile the DCC before the ICC Pre-Trial Chamber.
The defense, in its Aug. 31 motion, argued that the use of illustrative and non-exhaustive incidents made the charges uncertain and violated Duterte’s right under Article 67(1)(a) of the Rome Statute to be informed in detail of the nature, cause and content of the charges against him.
It described the charges as a “moving target” and argued that the scope of alleged crimes in the case was “virtually unlimited.”
The chamber found, however, that the defense’s arguments essentially challenged the form, scope and specificity of charges that had already been confirmed by the Pre-Trial Chamber.
It noted that Article 61(9) of the Rome Statute allows the prosecutor to amend charges before trial with the Pre-Trial Chamber’s permission, but prosecutors had not sought such an amendment.
Citing previous Appeals Chamber rulings, the trial judges said a trial chamber does not have appellate jurisdiction over a pre-trial chamber.
Ordering an updated charging document, they added, would undermine the authority of the confirmation decision, which remains the operative document for trial.
The chamber also noted that the defense had previously litigated the same issues before Pre-Trial Chamber I, including an unsuccessful request for leave to appeal.
On the right to notice, the judges found that the confirmed charges, together with additional information supplied during confirmation proceedings and other pre-trial documents, provided Duterte with sufficient information to prepare his defense.
They also noted that witnesses connected to the eight additional incidents were not expected to testify during the first months of trial.
The decision was issued in public redacted form and signed by Presiding Judge Joanna Korner and Judges Keebong Paek and Nicolas Guillou.
