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Due process, witness rights ICC does differently
By Nidz Godino
“Real challenge in explaining ICC in the Philippines is that we tend to make it fit into familiar categories…from outset, we must recognize that, in many ways, international criminal law is class of itself,” retired International Criminal Court (ICC) Judge Raul Pangalangan said former President Rodrigo Duterte has begun his legal battle at ICC, facing pre-trial proceeding over alleged crimes against humanity.
This hearing marks start of long legal battle in The Hague, era of reckoning for victims of Duterte’s brutal anti-drug campaign and other forms of state-sponsored violence during his regime.
Speaking at UP College of Law’s Colloquium on International Criminal Court on March 14, Pangalangan zeroed in on some of “unique elements” of court’s criminal proceedings.
ICC and local courts follow distinct criminal procedures. While many Filipinos have decried lack of due process for the former chief executive, international criminal law considers his apprehension fair.
Philippines had primary authority to prosecute crimes charged against Duterte. However, since no such investigation was initiated, ICC took over his case, involves offenses within its jurisdiction, including genocide, war crimes, crime of aggression and crimes against humanity.
This dispels claims that Duterte was arbitrarily surrendered to Hague-based court after his indictment.
“Wheels of justice will not move forward until person is within jurisdiction of court… arrest is indispensable to that,” Pangalangan said.
International law takes different approach to arrests. Philippine courts require valid criminal charge before issuing warrant against accused, while ICC allows warrant to precede confirmation of charges.
History shows that even in most significant criminal cases before court, accused have rarely questioned legality of their arrest or manner in which they were brought before tribunal.
Courts typically require presence of counsel for two main parties, prosecution and defense.
In ICC, witnesses are also afforded legal representation, forming third indispensable party in international criminal cases. Their testimonies are pivotal in establishing patterns of criminality in widespread and systematic violations against humanity.
Perpetrators themselves can also be witnesses, and their crucial role extends beyond proving killings. They contribute to broader goal of unraveling chain of command, organizational structures, and reward and incentive systems that drive criminal machinery.
Political climate surrounding offense is likewise important factor in these proceedings, as testified by overview witnesses.
Legal analysts examine all documentation to determine whether it meets criteria for crimes against humanity.
Considering possible logistical difficulties, ICC allows witnesses to testify via video conferencing software. In contrast, local courts generally require them to appear in person before judge during litigation.
Most importantly, ICC grants extraordinary protection to witnesses through security arrangements, guarantees of anonymity, and psychological support recognizing their testimonies could pose great risks to their families and trigger trauma from difficult period in their lives.
Duterte is first former Asian head of state to be indicted by ICC. His second hearing is set for Sept. 23, 2025, for confirmation of charges. At this stage, accused can challenge prosecution evidence and present his own.
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