Former ICC judge says tribunal does not allow trials in absentia

The presence of an accused before the International Criminal Court is essential for the wheels of justice to turn in the tribunal and one's arrest is the means to assure this, a former ICC magistrate has said.

Lawyer Raul Pangalangan, now a member of the Permanent Court of Arbitration in The Hague, said the arrest of the individual was "indispensable."

"The stand of the court confronts a very practical need. The wheels of justice will not move forward until the person is within the jurisdiction of the court. The arrest is indispensable to that," Pangalangan said in an online forum conducted in the wake of former President Rodrigo Duterte's arrest on an ICC warrant.

Duterte is now under the custody of the ICC and has been detained at The Hague penitentiary. He will face charges of crimes against humanity in connection with the killings committed under his administration's war on drugs.

The UP College of Law organizes the forum in partnership with the Office of the Dean and the Institute of International Legal Studies.

"Fundamental principle: The ICC does not allow trials in absentia... So the presence of the accused is indispensable to the procedure in the ICC, the warrant of arrest is the mechanism by which that presence is ensured," Pangalangan said.

"So we must interpret these rules in the context of that imperative, an imperative which is actually not just for the benefit of the accused that he should be present when he is being tried in court but also the integrity of the proceedings before the court," he added.

Pangalangan served as an ICC judge from 2015 to 2021. He was also a dean of the UP Law.

"Since I retired in 2021, I found that the real challenge of explaining the ICC in the Philippines is that we tend to make it fit into familiar categories. In other words, we have old tools and we see them in familiar boxes that we know," Pangalanan said.

"We have to recognize, in many ways, International Criminal law or in Criminal tribunal are in a class of themselves, they are sui generes," he added.

Warrant of arrest

"In the history of international criminal law, the biggest cases in this field have not inquired into the legality of the manner by which the accused is brought before the tribunal," Pangalangan said.

He cited Adolf Eichmann, who was "basically kidnapped" from Latin America and brought to Israel to be tried for the crimes committed in WWII.

"The court basically said, we have jurisdiction over the crime charged, material jurisdiction. Jurisdiction over the person accused. Personal jurisdiction, he was there personally."

This was affirmed, he added, in the case of US versus Álvarez Machaín, a Mexican doctor who was implicated in the torture of American DEA agents, who was also basically kidnapped from Mexico and brought to the US for trial.

"The case went all the way to the US Supreme Court which did not inquire on how he was brought to trial. He was guaranteed fair trial, but the court did not inquire as to what happened before the person appeared before it," said the former ICC judge.

Pangalangan also related a case in which he was a member of the trial member, that of Dominique Ongwen, a rebel commander in Uganda who was tried by the court and convicted.

The record of the pre-trial chamber showed that there was a question about how the court got jurisdiction over Ongwen.

Ongwen was captured by troops of the Central African Republic in cooperation with the US Armed Forces and brought in a US helicopter and brought to the ICC.

"What did the pre-trial chamber say, I will read: "The rules on the proceedings to be met by the custodial state, meaning the state that arrested him. These rules do not in themselves create a duty of the surrendering state to undertake any particular process upon the arrest of the person."

"Towards the end, the court said in validating the arrest, "to do otherwise is a disincentive to constructive cooperation between the court and the state to the detriment of the ICC itself," he said.

Duterte arrival

On the circumstances surrounding the arrival of Duterte in the Netherlands.

"Duterte arrived in the Netherlands, he did not have a visa. Can you imagine any of you entering a foreign territory without a visa? And yet he was allowed to enter, was welcomed at the airport, of course he was no sooner brought to jail," said Pangalangan.

The other members of the party were prevented from disembarking because they did not have a visa. They were allowed only with representations of the embassy and were given the usual consular assistance to any Filipino arriving in the country.

A visa was then issued for the lawyer, arresting party, a nurse, and for the companions.

If you follow the familiar rules, he underscored, Duterte would have been treated like the other persons in the plane or not allowed to disembark.

"The host country is the Netherlands, The Hague... part of the deal... I myself as a judge... We acquitted someone in jail for ten years. If we release him, he steps out of the gate. He becomes an illegal alien. This is a practical, down to earth explanation as to why we can't deal with the situation with the familiar rules that we know," he said.

Legal proceedings are different

The legal procedure followed by the ICC is different from the courts in the Philippines.

"In the Philippines, first we have the filing of information then the court issues a warrant of arrest. In ICC, it's the other way around, if you notice the next stage after the arrest of former president Duterte is the confirmation of charges. The hearing tomorrow (tonight) is not a confirmation of charges," he explained.

"The hearing is called the initial hearing wherein the court just familiarizes itself, to confirm the identity of the person who was arrested and to make sure the identity corresponds with the person subject of the order," he added.

The sequence is reversed with the mixed origins of ICC law and procedure and the American-influenced procedure of Philippine laws.

"The person is now in the custody of the court. In a short time, there will be the confirmation of charges hearing can be scheduled. And we will have what we in the Philippines consider arraignment. We don't use those terms at The Hague. When he is read the charges, when he assures the court he has read, that he understands and he will be asked how he pleads to these charges," said Pangalangan.

The plane carrying Duterte departed the Philippines on Tuesday evening heading to The Hague in the Netherlands.

Early Thursday morning (Philippine time), Duterte entered the Hague Penitentiary Institution or the Scheveningen Prison where he is set to be held while awaiting trial.

Duterte's first appearance at the ICC has been set for Friday evening (Manila time). — BAP/RSJ, GMA Integrated News