ICC allows seven more drug war incidents in Duterte case
MANILA, Philippines — The International Criminal Court has allowed prosecutors to add seven more incidents to the crimes against humanity case against former President Rodrigo Duterte, but struck out an eighth because it fell outside the time period of the charge it was filed under.
In the same October 9 decision, the ICC Trial Chamber III also rejected a defense request to order the prosecutors to rewrite the charges against Duterte as a closed list of killings. Duterte’s lawyers had argued that because the prosecutors treat the listed incidents as examples, he cannot know which specific incidents he will have to answer for at his trial, which opens November 30.
The ruling brings the Duterte case's incident count to 56. The 49 incidents confirmed by the Pre-Trial Chamber in April charge Duterte with 76 murders and two attempted murders. The public version of this latest decision does not say how many murders or attempted murders are in the seven new incidents.
Police reported at least 6,252 deaths in anti-drug operations during Duterte's presidency, but rights groups estimate the true number is up to 30,000, including vigilante-style killings.
The charges
Duterte faces three counts, or separate charges, of murder as a crime against humanity.
Prosecutors must prove each count on its own and the judges are expected to rule on each separately, so Duterte could be convicted on one and acquitted on another. The counts are divided by time period and by type of killing.
- Count 1 covers killings in Davao City from 2013 to around June 2016, while Duterte was mayor. Prosecutors attribute these killings to the Davao Death Squad, which it accuses Duterte of having ultimate command over. This count lists 19 people killed in Incidents 1 to 9.
- Count 2 covers killings of "high-value targets," or alleged major drug figures, from July 2016 to July 2017, Duterte's first year as president. The count lists 14 people killed in Incidents 10 to 14.
- Count 3 covers killings of low-level suspects in police raids to clear barangays of drugs as part of "Oplan Tokhang," from July 2016 to September 2018. It lists 43 people killed and two who survived in Incidents 15 to 49, and is the only count that also charges attempted murder.
The eight new incidents
Prosecutors gave notice of Incidents 50 to 57 on August 31, the deadline the chamber set in May, and detailed them in their trial brief filed September 4.
On September 11, the defense asked the ICC judges to strike them or make prosecutors seek the Pre-Trial Chamber's approval, arguing that all eight involved new locations, victims, perpetrators and dates.
The chamber admitted Incidents 50 to 55 under Count 3 and Incident 56 under Count 2. It found that each falls within its count's time period and within the charges' scope of "locations across the Philippines."
However, the judges decided to reject Incident 57, filed under Count 2, because it falls outside the July 2016 to July 2017 period that Count 2 covers.
Witnesses for the new incidents are not expected to testify in the first months of the trial, and the chamber told both sides to ensure none is called before the defense has had reasonable time to prepare.
Request to refile charges rejected
Lead defense counsel Peter Haynes argued in an August 31 motion that charges built on "illustrative" and "non-exhaustive" incidents violate Duterte's right under the Rome Statute to be told in detail what he is charged with. He called the charges a "moving target" and asked the chamber to order prosecutors to refile them before the Pre-Trial Chamber with a complete list of acts.
However, in its decision, the chamber's judges said they have no power to do that as only the prosecutor can seek to change confirmed charges, and only with the Pre-Trial Chamber's permission.
Trial chambers cannot review pre-trial decisions on appeal and the motion re-argued issues Pre-Trial Chamber I had already settled, including when it refused the defense permission to appeal on May 21, the decision read.
The judges also rejected the argument that prosecutors need pre-trial approval for each new incident. The charges were confirmed as covering "at least" the named victims, and the pre-trial judges had called incident-by-incident approval "practically unworkable."
The chamber found that the confirmed charges, the confirmation proceedings and the trial brief give Duterte enough detail to prepare his defense.
Why the exact number of incidents matter
To convict, prosecutors must prove beyond reasonable doubt that the killings happened, that they were part of a widespread or systematic attack on civilians under a state or organizational policy, and that Duterte is responsible for them.
Each incident names a date, place, victim and alleged perpetrators that the defense must prepare to answer during the trial.
What's next
Prosecutors must file their revised trial brief, witness list and evidence list by October 16. The defense must file its list of contested issues by October 30.
Duterte has been ruled fit to stand trial.
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