In the middle of the International Criminal Court’s pre-trial hearings for former president Rodrigo Duterte’s crimes against humanity cases, 18 marines claimed in an affidavit that they made cash deliveries to former senator Antonio Trillanes IV intended for the ICC probe.

The marines also claimed that they were asked to be security escorts to the ICC personnel in the country.

While all of these allegations were circulating locally, Duterte’s lawyer Nicholas Kaufman used his platform at the pre-trial chamber to claim that there’s a person “acting as President [Ferdinand] Marcos, Jr.’s silent partner for channeling witnesses to the ICC. He also said that the ICC was cooperating through this so-called “silent partner.”

“That was certainly deliberately done to intimidate us because I think that normally, our missions…shouldn’t be in the open public and that’s something that shouldn’t be done,” Deputy Prosecutor Mame Mandiaye Niang told Rappler in a one-on-one interview.

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“I admit that since 2017, I have been cooperating with the ICC. I help in collecting evidence, witnesses, and documents to develop this case against Duterte. There is nothing illegal or criminal in that. But, I will say and I deny — I did not receive $2 million or any kind from Zaldy Co,” Trillanes told Rappler in a phone interview.

To everyone’s surprise, Marcos’ former justice secretary and now Ombudsman Jesus Crispin “Boying” Remulla confirmed that he, in fact, met with ICC personnel for its probe into Duterte’s cases.

“I said, I talked to them (ICC personnel). So what?” Remulla said in Filipino. “It was after that incident (Duterte’s arrest), when we talked to them, that was in 2025, after March.”

But did Remulla’s acts violate any rule? They did not, according to several experts.

Nothing’s wrong, actually

ICC assistant to counsel Kristina Conti said that the ICC has to cooperate with governments, be they ICC member-states or not. She explained that Remulla might have been asked by the ICC as the then-head of the Department of Justice, and not as an individual.

“I don’t think he’s being asked as someone who is an insider or someone who was involved in the war on drugs per se,” Conti told Rappler. “So it’s about the position, it’s not about him per se.”

Conti said that the ICC approaching the Philippine government at a time of heightened investigation is not irregular. The timing may have been based on the convenience of the Marcos administration or when it was more viable for the ICC personnel to come in.

Since the ICC is an international body, it heavily relies on the cooperation of its member-states.

Article 86 of the Rome Statute — the statute that created the ICC — mandates all ICC member-states to fully cooperate with the court’s investigation and prosecution of crimes under its scope or jurisdiction. The Philippines is no longer a member-state when Remulla cooperated with the ICC because Duterte had severed its ties with the court in 2019, but this is where Article 87(5) of the statute applies.

Under the said provision, the ICC may invite non-member states to provide assistance through an ad hoc arrangement or agreement.

Niang said the prosecution is cooperating with many groups for the investigation, be it a “private person, or even officials of any government including the Philippines.”

“We of course, in our cooperation, be it civil society organization, be it private person, or even member, you know, officials of any government including the Philippines. We can accept cooperation but even in so doing, we retain our independence even you know in terms of who we interview, whether the witnesses we have access to can be important for our case, that’s something we do independently,” the ICC deputy prosecutor explained.

Another reason

Conti said that the ICC probe is generally confidential and anything related to the ICC Office of the Prosecutor’s investigation is not for public consumption.

Article 87(3) of the Rome Statute states that requested states shall keep confidential the request for cooperation “except to the extent that the disclosure is necessary for execution of the request.”

“It’s unusual for someone who is part of the investigation to disclose these details. However, Remulla is not disclosing the contents of the background of the discussion. So I would say it’s a very narrow line that he’s treading on. Because he’s not violating confidentiality of what was disclosed, just affirming that it happened,” the ICC assistant to counsel explained.

When Duterte was arrested in March last year, the Marcos administration justified its cooperation by noting its relationship with the Interpol. Even if the Philippines was no longer an ICC member-state, the country took part in the arrest since the ICC coursed its warrant through the Interpol.

A few months later, Remulla confirmed that the Marcos administration was providing protection and support to the witnesses. In September of the same year, Remulla also confirmed drug war whistleblower Royina Garma, who revealed Duterte’s reward system in his drug war, will be a key witness in the ICC cases.

Meanwhile, Trillanes also warned that individuals who hamper the ICC proceedings may face possible violation of Article 70 of the Rome Statute. The said provision punishes those who are “impeding, intimidating or corruptly influencing an official of the Court for the purpose of forcing or persuading the official not to perform, or to perform improperly, his or her duties.”

According to ICC assistant to counsel and international law expert Ross Tugade, the ICC may also reach out to Philippine authorities if indeed it is also investigating the possible violation of Article 70.

“So in the event that there are possible Article 70 offenses, then we can expect the ICC to speak with local authorities to possibly investigate these cases,” the international law expert said.

Political tone

Clearly, the local attacks against the ICC’s supposed cooperation with the Marcos government is connected to Kaufman’s arguments before the pre-trial chamber.

Kaufman’s submissions to defend Duterte had political aspects as he had remarks attacking the political rivals of his client. Duterte’s lawyer also put the blame on Marcos, whose administration had facilitated his client’s arrest, then took a swipe at the two parties’ cooperation.

The defense lawyer also claimed that drug-related killings also continued under Duterte’s successor. It’s true the killings continued under Marcos — with 342 incidents from July 1, 2022 to June 20, 2023 — but this number is lower compared to numbers under Duterte’s first months in office.

In the first three months of the Duterte presidency alone, over 700 people were killed in the drug war, according to human rights groups. By the end of Duterte’s term in 2022, nearly 30,000 people were killed in the government’s campaign.

For National Union of Peoples’ Lawyers president Ephraim Cortez, it was clear that Kaufman’s goal in highlighting these information was not to destroy the prosecution’s arguments but rather for another purpose.

“At the same time, we can clearly see that the goal here of the defense lawyer is to just incite the public to have a very good soundbite probably or something. But as regards the defense, I don’t think that it has actually destroyed the evidence as presented by the prosecution,” Cortez said in a Rappler panel on February 26.

“I think more than anything, it reinforces the idea that any trial that would be done in the Philippines would be heavily political and might be compromised. So the ICC, so any proceedings before the ICC could possibly be a more objective set of proceedings rather than having proceedings done domestically. And we would see these kinds of political maneuverings from different camps,” Tugade explained. – Rappler.com