Prosecutor Karim Khan will likely be successful in confirming the crimes against humanity charges against former Philippine president Rodrigo Duterte in the upcoming September hearing at the International Criminal Court, one of the world’s leading experts in crimes against humanity told Rappler.

“At the confirmation stage, I’m fairly confident, given what I’ve seen even in the public domain, that the prosecutor ought to be successfully able to confirm these charges,” Professor Leila Sadat of the Washington University School of Law said in a Rappler Talk interview.

Sadat served as special adviser on crimes against humanity to the ICC prosecutor from 2012 to 2023. She currently chairs the American branch of the International Law Association (ILA) and Washington University’s Crimes Against Humanity Initiative.

On September 23, the pre-trial chamber will be applying the higher standard of “substantial grounds to believe” when it decides to either confirm or not the charges that Duterte is allegedly an indirect co-perpetrator of murders in his war on drugs from 2016 to 2019, and of murders by his Davao Death Squad (DDS) from 2011 to 2016. The covered period — 2011 to 2019 — was when the Philippines was an ICC member.

“Indirect co-perpetration is when they committed the crime through another person. And we use that
for top ranking officials, even though it’s a very strange locution in the English language. We use it because the top person isn’t usually the person pulling the trigger. They’re not the ones on the street identifying the people, pulling them into the truck, you know, killing them,” said Sadat.

Libyan dictator Muammar Gaddafi was also charged as an indirect perpetrator of crimes against humanity, until the ICC terminated his case in 2011 following his death in the hands of anti-Gaddafi militias. It was Nicholas Kaufman, Duterte’s lead defense lawyer now, who represented Gaddafi’s daughter Aisha in her bid to have the ICC prosecutor also investigate her father’s death. They were not successful.

‘Policy element would not be much of a hurdle’

In Duterte’s case, the warrant against him says that there was “an attack directed at a civilian population pursuant to an organizational policy,” pertaining to his drug war and DDS killings. The policy is one of the elements of crimes against humanity under the Rome Statute.

“The policy need not be formal. It need not be in writing. And it can be established by evidence showing that there was a pattern, that the killings had a certain, that a pattern was repeated…that there was a certain modus operandi that accompanied all the killings,” said Sadat.

“Obviously, the prosecutor will look for evidence of absolute direction or intent, but that’s not necessary under the ICC elements of crimes…. The objective there is just to show that the killings were not random. Given the fact that the estimates of the killings in the Philippines are so high, we’ve seen them anywhere from eight to 30,000 individuals, it’s very unlikely that the policy element would be much of a hurdle to the prosecutor in this particular case,” said Sadat.

Under the Rome Statute, the ICC will also be looking at the “mental element” where they will check if the suspect was aware of the alleged policy to attack. They will also check the “nexus” or the connection between the specific killings attributed to Duterte (there are 43 at this stage) and the overall design of the attacks.

“I think that’s not going to be difficult to show again in the particular instance. One of the things with the former president that’s true is that the same pattern of killings had emerged when he was the mayor of another city in the Philippines. So in other words, this isn’t the first time we’ve seen a pattern of killings under his leadership,” said Sadat.

It also does not help Duterte that he had made public statements, and even testimonies under oath at the Senate and the House of Representatives, that he had taught cops to goad suspects to kill so they can justify their killing.

“It certainly is what a prosecutor dreams of getting. Often you don’t get an accused that actually admits that they’re going to commit a crime. Now, sometimes, even when you have language that clear, the accused on the stand will say, well, I didn’t really mean that, or that wasn’t really my intent, that was just a manner of speaking. I suspect his defense lawyers will try to walk back from some of those statements,” said Sadat.

On jurisdiction

Duterte’s newest defense lawyer, Dov Jacobs, is an international criminal lawyer whose writings on jurisdiction had actually been used as a source by the two dissenting appeals judges in 2023. Jacobs believes, as the judges agreed, that jurisdiction is preserved when an investigation has already been opened before withdrawal. In the Philippines’ timeline, only a preliminary examination — the low-threshold step 1 into any situation — had been opened before Duterte withdrew from the ICC.

Sadat disagrees. The Rome Statute’s Article 127 says withdrawal will not affect the continuation of “any matter” that was already started in the court. What is “any matter?” If there’s ambiguity in the Rome Statute, Sadat said “we look at other sources of international law and the practice of other international courts.”

“And uniformly, in all cases, the International Court of Justice, the Inter-American Court of Human Rights, and the ICC have concluded that unless there’s a specific statutory bar, the rule is the court’s jurisdiction remains attached so long as, in the ICC case, there were some proceedings that were open and that the crimes were committed while the state was still a party to the Rome Statute,” Sadat said.

“I think the courts have been getting it right,” said Sadat, referring to previous decisions made by different chambers thus far, ruling in favor of jurisdiction in the Duterte case.

Kaufman earlier told Rappler they are going to file a jurisdictional challenge soon, and that he seeks to terminate the case even before September 23. – Rappler.com