Duterte team fails in bid to remove 2 ICC judges

Reine Alapini-Gansou (left) and Socorro Flores Liera. —Photos from the ICC website

MANILA, Philippines — The pretrial chamber handling the case of former President Rodrigo Duterte in the International Criminal Court (ICC) has dismissed the petition filed by his legal team to remove two of the three judges from the case.

The ex-president’s lawyers last week sought the “excusal” of Judges Reine Adélaide Sophie Alapini-Gansou and Maria del Socorro Flores Liera, saying their continued involvement after making a prior ruling on the ICC’s jurisdiction over the case could create a “perception of bias.”

In a four-page decision dated May 6, the ICC Pre-Trial Chamber I denied the appeal made by Duterte’s lawyers to excuse Alapini-Gansou and Flores Liera from ruling on the ICC’s jurisdiction over the Philippine case.

READ: Duterte lawyers question ICC jurisdiction, seek his release

“The Chamber recalls that, pursuant to article 41 of the Rome Statute and rules 34 and 35 of the Rules of Procedure and Evidence, a judge’s excusal from the exercise of a function may only be sought by the concerned judge directly before the Presidency, as opposed to disqualification for which the Prosecution or the person being investigated or prosecuted may submit a request before the Presidency,” said the decision issued by the all-female chamber headed by Judge Iulia Antoanella Motoc.

“The possibility for that person to invite or request judges to seek excusal before the Presidency is thus not contemplated in the statutory texts. As stated by the Presidency, ‘no preemptive request may be made by the parties that a judge request his or her excusal’ and such course of action ‘lacks procedural propriety,’” it added.

On May 1, Duterte’s defense team filed a challenge to the exercise of jurisdiction by the ICC in the Philippine case.

That same day, it also filed a petition for a “partial excusal” of the two judges from exercising their functions in the chamber, specifically on the jurisdiction issues raised by the defense.

It argued that “[a] partial excusal in the Case is justified and, moreover, appropriate given the possibility of perceived bias,’ which would arise ‘out of the Judges’ prior ruling on substantially the same issue in the Situation in the Republic of the Philippines.’”

On May 5, the prosecution opposed the petition and requested that the chamber dismiss it.

The two judges signed the arrest warrant against Duterte, paving the way for his arrest and transfer to The Hague on March 11.

Alapini-Gansou, who hails from Benin, was appointed to the ICC in March 2018. She was one of the judges who issued arrest warrants against Moscow’s proxies in South Ossetia over alleged war crimes during the 2008 Georgia war.

Flores Liera, a Mexican, joined the ICC in March 2021. She was involved in the process that led to the creation of the ICC since 1995, including the negotiations that led to the Rome Statute and to the adoption of the Elements of Crimes and Rules of Procedure and Evidence.

‘Delaying tactic’

According to Neri Colmenares, cocounsel for the families of the drug war victims, the defense lawyers were “wrong” in filing such an appeal since they needed to prove the “specific act actually committed” by the judges for them to show their purported biases.

“They did not mention anything specific except for the fact that [the judges] previously ruled on the [jurisdiction] issue, but such need not necessarily means that they are biased,” Colmenares told the Inquirer.

He also echoed the court’s decision on seeking disqualification, which he said is “more stringent.”

“This is yet another delaying tactic if they (Duterte’s defense) want the two judges to inhibit and appoint new judges,” Colmenares said. “It is only right that the ICC denied it.”

The chamber has provisionally scheduled the hearing on the confirmation of charges to begin on Sept. 23. The court will then determine whether there is sufficient evidence that Duterte committed the crimes he’s accused of. If charges are confirmed, the case will proceed to trial. /cb/abc