THE HAGUE, Netherlands – The second day of the confirmation of charges hearing at the International Criminal Court (ICC) was spent on the prosecution laying down how they can link specific incidents of killings to former Philippine president Rodrigo Duterte, the alleged indirect co-perpetrator.

Day 2 was dedicated to the submissions on merits of the prosecution and the victims’ representatives. Day 3 on Thursday, February 26 will be the turn of defense counsel Nicholas Kaufman to make his submission on merits.

Insider witnesses

For the first time, we saw more details on the insider witnesses that the prosecution has on hand. They are still unidentified at this point, but trial lawyer Edward Jeremy at least confirmed they were insider witnesses who were privy to the inner operation of the Philippine National Police’s Oplan Tokhang. Tokhang, from the Visayan words, knock (tok) and plead (hangyo), was the catchphrase of the Duterte administration’s war on drugs.

One of the testimonies Jeremy presented was an insider witness saying that Oplan Tokhang targets “had to be poor – those who do not have the means to file a complaint or to complain.”

That we can now confirm there are insider witnesses in the war on drugs is significant. Previously, we only reported on two witnesses who were insiders of the Davao Death Squad.

 “You have heard yesterday and the day before an important word for us, which is ‘insider.’ The insider is someone who was in the circle of Mr. Duterte  and who became a prosecution witness,” said Paolina Massidda, the foreign lawyer of the ICC’s Office of the Public Counsel for Victims or OPCV.

The OPCV is like the Public Attorney’s Office in the Philippines. The defense equivalent is the OPCD or the Office of the Public Counsel for the Defence.

Method to madness

An important element the prosecution must prove is Duterte’s link to specific incidents in the charges.

Jeremy presented a methodical link beginning with Duterte’s public speeches. For example, Jeremy presented video clips of Duterte threatening that he would kill Albuera City, Leyte mayor Rolando Espinosa, and Ozamiz City mayor Reynaldo Parojinog.

The prosecution obtained an excel sheet containing the mayors’ names, included in what Duterte called back then as “narco list.” It’s also called the PRRD list, or the President Rodrigo Roa Duterte list.

Espinosa and Parojinog were both killed in police operations.

Then, Jeremy showed that after the killings, the mayors’ names were marked in the excel sheet as “neutralized.” It was Jeremy’s way to prove that neutralize meant to kill, and not what the Duterte government said as being open to interpretation. (Neutralize, Duterte officials said, could also mean to disarm, or detain.)

Espinosa, for one, was not marked neutralized when he was arrested and jailed. He was marked neutralized after his death.

“Notably, one insider witness explained the significance of the use of this word, neutralize, in this command memorandum. The witness stated as follows: ‘they used the word neutralize to emphasize the kill order of president Duterte’,” Jeremy said.

Jeremy was referring to police circular No. 16-2016 issued by then-police chief and now Senator Ronald “Bato” Dela Rosa to operationalize Oplan Tokhang in 2016. Dela Rosa has been named by the prosecution as co-perpetrator, although there’s no confirmation if arrest warrants had been sought against them. Warrants can be under seal, or in secret, until implemented per new ICC rules.

Does it amount to crimes against humanity?

In the ICC, the prosecution has to identify what mode of criminal liability is being used against the suspect. Because Duterte did not pull the trigger and was not the one who actually killed the victims in the charges, he is charged as an indirect co-perpetrator.

To be an indirect co-perpetrator, the Rome Statute under Article 25 3(a) says the suspect must be proven to commit the crime “whether as an individual, jointly with another or through another person, regardless of whether that other person is criminally responsible.”

Trial lawyer Robyn Croft presented this legal theory to the judges, saying that “Mr. Duterte indirectly co-perpetrated the crimes, ordered and or induced the crimes and or aid and abetted the crimes.”

“First, he agreed to a common plan to neutralize alleged criminals. Second, he and his fellow co-perpetrators jointly controlled a structure of power, namely the Davao Death Squad and the National Network, which they used to pursue the common plan. Third, Mr. Duterte made an essential contribution to the crimes within the framework of the common plan. And fourth, he did this with the requisite intent,” said Croft.

The national network refers to the war on drugs when he was president of the country.

How did the prosecution do?

For the former Duterte Cabinet members who are in The Hague, banking on the word “neutralize” is a recycled legal theory.

“Every time he utters the word kill, it only means one thing: that he will run after, hunt those involved in the drug syndicate and other criminals to the ends of the earth, and prosecute them and put them behind bars. That is what the word kill means, not the literal meaning of murdering people,” said Salvador Panelo, Duterte’s former presidential legal counsel who helped him withdraw the Philippines from the ICC in 2018, made effective in 2019.

But for Massidda, it’s not enough to say that Duterte’s words should not be taken literally.

“And there is jurisprudence, by the way, at the court, in relation to this kind of terms, because neutralized, it’s not the first time that it is being used… There is jurisprudence of the court on the interpretation of these kind of terms, which are normally interpreted in the context in which they were pronounced,” said Massidda.

There are pending petitions in the Philippine Supreme Court that seek to declare the war on drugs unconstitutional. One of the two petitions was actually filed by the group of Joel Butuyan and Gilbert Andres, who were appointed by the court as common legal representatives for drug war victims, along with Massidda.

A Supreme Court decision on the word neutralize “would have helped,” said Butuyan.

“There are so many police statements that you can cull the meaning of neutralized as a language used by the police. And it’s really killing and physical elimination,” said Butuyan.

– Rappler.com