ICC Tracker: Two judges have no bias on Duterte case, says plenary of judges

The International Criminal Court’s plenary of judges ruled that two judges of the Pre-Trial Chamber I who were the subject of disqualification from the defense exhibited no bias on the case of former President Rodrigo Duterte.

Judge Tomoko Akane, president of the plenary of judges, on July 3 detailed the reasons behind their June 9 dismissal of the defense move to disqualify Judges Reine Adélaïde Sophie Alapini-Gansou and María del Socorro Flores Liera.

The defense wanted the two judges disqualified from deciding on its motion challenging the court’s jurisdiction on Duterte’s case.

“The plenary of judges, acting unanimously, considers that no actual nor reasonable apprehension of bias arises in respect of Judges Alapini-Gansou and Flores,” Akane said.

The plenary of judges considers that the “judges acted, at all times, in accordance with the judicial duties assigned to them” under the Rome Statute, he added.

“The plenary of judges, acting unanimously, considers that the Rome Statute recognizes that Judges Alapini-Gansou and Flores may exercise the functions assigned to them under both article 15 and article 19 of the Statute and finds that no appearance of bias or lack of impartiality arise from the ordinary exercise by the judges of legal functions assigned to them,” Akane said.

In a July 1 communication to the Pre-Trial Chamber I, Deputy Prosecutor Mame Mandiaye Niang said they have disclosed 1,062 items of evidence to the defense on June 27.

The defense has petitioned the Pre-Trial Chamber I to allow it to comment on the prosecution’s opposition to its request for the interim release of former President Rodrigo Duterte.

In a June 27 communication, Nicholas Kaufman said a reply was necessary to address the prosecution’s assertions about the risks posed by the interim release.  

“The Defense is considerably concerned by the Prosecution’s apparent volte-face in paragraphs 33 to 35 of its Response,’’ the counsel for Duterte said.

“These paragraphs seem to intimate that the Prosecution had always intended that interim release must be denied while agreeing to terms and conditions for release to [REDACTED] merely as a default position on the ‘off-chance’ that the Pre-Trial Chamber (and not the Prosecution) should find that interim release is appropriate,” he added.

Victims of former President Rodrigo Duterte’s drug war have also opposed his bid for interim release, arguing that this could allow him to evade justice and even pose danger to their security.

In a June 25 response, the principal counsel of the Office of Public Counsel for Victims asked the Pre-Trial Chamber I to reject the defense request for Duterte’s release from the International Criminal Court’s prison in The Hague, Netherlands, to an undisclosed country.  

Paolina Massidda argued that Duterte’s detention remained necessary given the gravity of the charges against him, his access to evidence and identities of witnesses, and the power that he continues to wield.

“Victims also oppose the Request on the basis that their security and well-being will be in danger in the event that Mr. Duterte is released. In this regard, victims have expressed their strong concerns about the possibility that the suspect enjoys interim release, even with conditions, fearing reprisals,” she said.

“Indeed, Mr. Duterte’s supporters are very active and he still has strong connections with individuals in power. Victims are equally concerned by the fact that the Suspect has the means to evade justice,” she added.

Besides, no humanitarian reasons have been established to justify his interim release, Massidda said.

The prosecution has asked the Pre-Trial Chamber I to dismiss the defense request for the interim release of former President Rodrigo Duterte to an undisclosed country.

In a June 23 response, Deputy Prosecutor Mame Mandiaye Niang argued that Duterte’s continued detention is necessary to ensure that he appears at trial and does not obstruct investigation, and prevent him from committing crimes within the court’s jurisdiction.

“No agreement whatsoever was reached with the Defense on conditions of interim release to any country other than [REDACTED]. For absolute clarity: the Prosecution has not agreed in any way to conditions for interim release to [REDACTED], or anywhere else in the world, other than [REDACTED],” Niang added.

Former President Rodrigo Duterte has requested interim release from the International Criminal Court while charges of crimes against humanity against him are pending.

“Mr. Rodrigo Roa Duterte respectfully requests, in accordance with Article 60(2)
of the Rome Statute, interim release to [REDACTED]. The Government of [REDACTED] has expressed to the Defense its advance and principled agreement to receive Mr Duterte onto its territory for the term of his interim release and will act, in accordance with its domestic law, to implement such conditions as deemed appropriate by Pre-Trial Chamber I,” according to a June 12 request filed by Nicholas Kaufman, Duterte’s counsel.

Kaufman said discussions with Chief Prosecutor Karim Khan on the interim release began immediately after the initial appearance.

Since then and after Khan had gone on leave, the prosecution has confirmed its non-opposition to the interim release “on the understanding that the terms and conditions set out in Annex A to this filing would be met,” he said.

“Mr Duterte is not a flight risk, and custody is not necessary to ensure his appearance before the Court,” Kaufman said.