ICC prosecutors oppose Duterte bid to disqualify judges

Metro Manila, Philippines - Prosecutors at the International Criminal Court (ICC) have rejected former Philippine President Rodrigo Duterte’s request to disqualify two judges from ruling on his jurisdictional challenge, calling the defense claim “legally untenable” and lacking any valid basis for alleging bias.

In a document dated May 22, the Office of the Prosecutor said Duterte’s bid to remove Judges Reine Adélaïde Sophie Alapini-Gansou and María del Socorro Flores Liera from the case should be denied, arguing that their previous rulings did not compromise their impartiality.

“The Defence Request should be rejected because it fails to call into question the presumption of impartiality attached to the Judges,” the prosecution said. It added that the judges’ earlier involvement in rulings related to jurisdiction and the issuance of an arrest warrant were preliminary and procedural in nature.

Duterte’s legal team had argued that the two judges had effectively “predetermined” the outcome of the jurisdiction issue by previously authorizing the investigation into the Philippine situation and signing off on the arrest warrant for Duterte.

But ICC prosecutors countered that such reasoning would lead to the “untenable” outcome of barring judges from ruling on any issue more than once.

“A high threshold must be satisfied in order to rebut the presumption of impartiality which attaches to judicial office,” the prosecution said. “Judges regularly adjudicate the same, or similar, legal issues… their prior determinations do not, under regular circumstances, create the appearance of conflict.”

The prosecution further pointed out that both judges acted within the scope of their duties and their rulings explicitly recognized their preliminary nature. For example, the Chamber’s decision to authorize the investigation noted that it was made with “limited mandate” and based only on the lowest evidentiary standard - “reasonable basis to proceed.”

Likewise, when the Chamber issued the arrest warrant for Duterte, it stated that it was made “without prejudice to future determinations on the matter.”

In a separate document dated May 23, the Plenary of Judges of the ICC acknowledged receipt of Duterte’s request and the written observations of the two judges concerned. The plenary will deliberate on the matter, excluding Judges Alapini-Gansou, Flores, and Beti Hohler.

Judge Hohler recused herself from the deliberations, citing her previous role as a prosecution trial lawyer involved in the Philippine situation from 2019 to 2022.

The legal proceedings stem from allegations that Duterte committed crimes against humanity in connection with thousands of deaths during his administration’s war on drugs. The ICC issued an arrest warrant for Duterte earlier this year.

A final decision on the disqualification request will be made by the remaining judges of the plenary.