Duterte bid to disqualify ICC judges opposed

MANILA, Philippines — A deputy prosecutor of the International Criminal Court (ICC) has opposed former president Rodrigo Duterte’s plea to disqualify two pre-trial judges from ruling on the issue of jurisdiction.

In an eight-page response dated May 22, Deputy Prosecutor Mame Mandiaye Niang urged the ICC presidency to reject the defense bid to disqualify Judges Maria del Socorro Flores Liera and Reine Adelaide Sophie Alapini-Gansou from adjudicating its challenge on the tribunal’s jurisdiction over Duterte’s case.

“Contrary to the Defense’s position, the judges have not ‘already predetermined the outcome of the jurisdictional dispute…’ and no objective observer would reasonably perceive bias on the part of the judges based on their prior ‘involvement in the deliberation and adjudication of the jurisdictional question in the Situation’ in the Republic of the Philippines,” the prosecution’s filing read.

“As previously stated, the judges’ prior ruling does not amount to any perceived bias in this case, and any conclusion to the contrary would result in the untenable situation where a judge may be barred from issuing decisions on the same legal issue more than once,” it added.

Duterte, through defense lawyer Nicholas Kaufman, earlier claimed that the conditions were already satisfied to warrant the disqualification of the two judges from ruling on the jurisdiction issue.

“The judges have had prior involvement in the most substantive legal question in the case against Mr. Duterte. As such, the jurisdictional issues at the situational and case levels are not just similar; they are identical: both concern the issue of jurisdiction,” wrote Kaufman.

“It is not reasonable to expect a judge who has recently expressed a highly publicized position on a specific legal issue to depart from that view,” he added.

But in his filing, Niang maintained that judges regularly rule on the same or similar legal issues “in accordance with their mandate and ordinary duties.”

“As such, their prior determinations on legal issues do not, under regular circumstances, create the appearance of conflict or impropriety,” he added.

The deputy prosecutor noted that any conclusion to the contrary would lead to a “nonsensical situation where a judge may be barred from issuing decisions on the same legal issue more than once.”

He stressed that the defense failed to demonstrate that a fair-minded and informed observer would “reasonably perceive bias” based on the previous rulings of the two judges.

“Any prior determinations related to jurisdiction made by the judges in this Situation were preliminary in nature and made for the limited purpose,” the deputy prosecutor said.

“There is no reason why the judges would not be in a position to objectively evaluate this new, and purely legal in nature, question. No fair-minded and informed observer, having considered all the facts and circumstances, would reasonably apprehend bias on the part of the judges in this case,” he added.