MANILA – The prosecutor of the International Criminal Court (ICC) said it has at least 421 documents, nine photos and nearly 16 hours of audio and video files that it would use as evidence against former President Rodrigo Duterte when he faces the tribunal again in September.

These were among the details of the evidence that the prosecution had at hand in its response to an order by the Pre-Trial Chamber 1 of the ICC to disclose information ahead of the confirmation of charges hearing on Sept. 23.

The confirmation of charges would determine whether the court would proceed with the trial of Duterte for murder as a crime against humanity in connection with his war on drugs, the signature campaign of his presidency that led to thousands of alleged extrajudicial killings.

In an April 4 document filed with the ICC, the prosecution, led by Karim Khan, said that it was “still in the process of determining the overall quantity of written and non-written documentary evidence that it intends to rely upon at the confirmation hearing.” The document, with redactions, was made public on the ICC website on Wednesday.

8,565 pages

Khan noted that the “majority of the evidence” will comprise those cited in its application for an arrest warrant, which included 421 pieces of written evidence, equivalent to 8,565 pages; nine photographs; and almost 16 hours of audio and video recordings.

Khan did not specify the contents of the documents, pictures, videos and audio recordings.

He said that the prosecution would likely use more evidence gathered in the course of the investigation of the drug war killings—a huge pile of approximately 168,575 items that had either been reviewed or were still under review.

All of the written or spoken evidence are in English, Filipino or Cebuano, he said.

“The prosecution will ensure all material is made available in its original language, with a transcription [or] translation into English where necessary,” he added.

Earlier submissions

On March 28, the prosecution submitted to the defense 181 items, equivalent to 2,878 pages of evidence implicating Duterte in allegedly masterminding an antinarcotics campaign that supposedly could curb the proliferation of illegal drugs in the country.

Evidence against Duterte started to surface after allegations of “continuing mass murder” in his war on drugs first reached the ICC on April 24, 2017, when Jude Sabio, lawyer for confessed Davao Death Squad (DDS) hit man Edgar Matobato, filed a complaint, called a communication, against him in the tribunal based in The Hague.

By June 6 of the same year, then Sen. Antonio Trillanes IV and former Magdalo party list Rep. Gary Alejano brought a supplemental communication, asking the ICC to step in and urgently conduct a probe into the drug war killings.

With her own review of reports documenting alleged crimes potentially falling within the jurisdiction of the ICC, then ICC prosecutor Fatou Bensouda decided in February 2018 to open a “preliminary examination” of Duterte’s bloody war on drugs.

‘Exculpatory evidence’

In September 2021, the Pre-Trial Chamber 1 authorized the Office of the Prosecutor headed by Khan, Bensouda’s successor, to investigate the alleged crimes committed in the context of the antinarcotics campaign from Nov. 1, 2011, to March 16, 2019, when the Philippines was still a state party to the Rome Statute, the treaty that established the ICC. The period includes several years when Duterte was mayor of Davao City.

Duterte was arrested on March 11 and flown to The Hague, where he arrived the next day. He is being held in a cell at an ICC detention center in Scheveningen district near the ICC headquarters.

In addition to the initial set of evidence, Khan said his team identified 160 more items that could be turned over to the defense soon as it would “require limited standard redactions.”

The prosecution is still gathering “potentially exculpatory evidence” that the prosecution will also have to submit to Duterte’s legal team, as required by the Rome Statute, he said. The defense is led by British-Israeli lawyer Nicholas Kaufman.

At least one statement from a prosecution witness, who is not identified as part of a confidentiality agreement, is deemed possibly exculpatory evidence, Khan said.

Two may take the stand

The prosecution informed the court that it would be able to complete the review and disclosure of its evidence “no later than 30 days before the confirmation hearing.”

Two witnesses of the prosecution would likely take the stand to testify against Duterte in the confirmation hearing, Khan said. But he refused to disclose the number of witnesses whose statements would be used.

To give the witnesses further protection, the prosecution sought protective measures provided by the ICC Rules of Procedure and Evidence and the nondisclosure of their identities which it would formally request in the coming weeks.

Under the Rules, the court may order appropriate measures “to protect a victim” or to “facilitate the testimony of a traumatized victim or witness” upon the request of the prosecutor, defense or the witness or victim themselves.

It has not been easy for the relatives of those who died in the brutal campaign, or the “indirect victims” as they are described by the ICC. They are those who suffered psychological trauma from the death of their loved ones in the drug war.

“It’s like the trauma piles up one after the other—my trauma from the death of my brother, and now the online harassment, bashing, fake news, manipulation of facts,” said Sheerah Escudero, whose brother Ephraim went missing for five days before he was found dead in 2017.

Emboldened

She said that she had been called a “drug addict who deserves to be beheaded, too.”

But all this has only emboldened her to push back and speak out even louder about their grief and against the killings.

“It has given me more reason to speak out and stand up because if we’re not gonna speak, if we’re just gonna let them create false claims against us, what will they think of us?” Escudero said.

“We’ll do whatever we can to be heard,” she told the Inquirer. “We are hopeful about the proceedings in the ICC. It is a huge development for those of us who have been seeking justice for almost a decade now.”

“Somehow, it has eased the weight we’ve been carrying knowing that Duterte is brought to and detained at the ICC … and that he is not here anymore,” she said.

Asia News Network/Philippine Daily Inquirer