ICC prosecutor: No proof showing ‘perceived bias’ of judges

MANILA, Philippines —  For International Criminal Court (ICC) prosecutor Karim Khan, the defense team of former president Rodrigo Duterte failed to demonstrate what they claimed were the “perceived bias” of two of the three pre-trial judges handling the case.

Khan, who objected to the defense suggestion that Judges Reine Ade?laïde Sophie Alapini-Gansou and Mari?a del Socorro Flores Liera excuse themselves from ruling on the jurisdiction issue, maintained ICC judges are “professional and enjoy a presumption of impartiality.”

“The Defense fails to demonstrate that perceived bias would arise on the basis of the Judges’ prior rulings touching upon jurisdiction in this Situation,” read Khan’s five-page observation that was reclassified as public on May 6.

“Judges’ prior legal determinations on legal issues, made in the course of carrying out their ordinary duties, do not amount to bias, nor should they create the appearance of conflict or impropriety,” it added.

The ICC prosecutor was responding to the “invitation” of Duterte’s lead counsel Nicholas Kaufman for Alapini-Gansou and Liera to petition their “partial excusal” from exercising their functions in relation to the jurisdiction issue.

In its ruling on May 6, the Pre-Trial Chamber I denied the defense’s request, saying “a judge’s excusal from the exercise of a function may only be sought by the concerned judge directly before the (ICC) Presidency.”

“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.

In his submission, Kaufman cited the judges’ previous rulings that touched on the issue of jurisdiction, particularly when the ICC Pre-Trial Chamber I authorized the opening of the investigation into the situation in the Philippines in 2021.

But according to Khan, whose office is leading that investigation, the defense’s concern regarding possible bias are “further dispelled by the safeguards” such as the “explicit caveat made by the Judges when issuing their preliminary findings on jurisdiction for the limited purpose of issuing the arrest warrant in this case.”

In the ruling, the Pre-Trial Chamber said that its findings are based on “materials submitted and without prejudice to future determinations on the matter.”

“It is important to note that any prior determinations related to jurisdiction made by the Judges in this Situation were done in the absence of any Defense observations on the issue,” Khan said in his observation.

No offense meant

In his submission, defense lawyer Kaufman said his invitation for the judges to excuse themselves was “formulated with the maximum of respect and deference.”

“There is no intention whatsoever to create a shadow of a doubt as to the Judges’ integrity,” he wrote.

“The Defense does not wish to offend the judges by taking the unnecessarily aggressive step of seeking public disqualification, with the accompanying media circus, when the same result may be achieved by confidentially inviting excusal,” he added.

The submissions of both Kaufman and the prosecutor were both initially filed as confidential and were later ordered classified by the chamber as “public.”

According to Kaufman, the issue of jurisdiction “is a contentious – if not the most contentious – issue in the Case.”

“Deciding this matter in favour of the Defence will have far-reaching consequences on the future of the Situation. The ICC judiciary has already shown that it is divided on the issue,” he said.

“This matter should be not decided in the case by judges who have formulated a firm opinion on the question sub judice prior to hearing Defense submissions,” added Duterte’s defense counsel.

Imee’s complaint

Meanwhile, Justice Secretary Jesus Crispin Remulla said he would discuss with his co-respondents their legal defense in the complaint filed by Sen. Imee Marcos before the Office of the Ombudsman over the arrest and turnover of former president Duterte to the ICC.

Remulla said he and his co-respondents, including his brother Interior Secretary Jonvic Remulla and Philippine National Police chief Rommel Marbil, are expected to meet at the Department of Justice today to coordinate their legal defense.

Remulla questioned the process that led to the case being filed, saying it was not based on a committee report but by a report of Marcos, who chairs the Senate committee on foreign relations. –  Daphne Galvez