Lawyer says ICC asked him about witnesses vs. Duterte drug war; decision may be out soon

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Metro Manila (CNN Philippines, March 8) — The International Criminal Court (ICC) may decide to launch an investigation into President Rodrigo Duterte's drug war next week, according to a lawyer who said he was contacted by the tribunal.

Speaking to CNN Philippines on Friday, lawyer Jude Sabio said "it is possible that the ICC will decide to open an investigation" before March 17, when the Philippines' withdrawal from the international tribunal takes effect.

Sabio is the lawyer of self-confessed hitmen Edgar Matobato and Arturo Lascañas who said they killed people in Davao City upon the orders of then Mayor Rodrigo Duterte.

In April 2017, Sabio submitted to the ICC a 77-page document on the killings, formally called by the tribunal as a "communication." This was followed by supplemental information from opposition lawmakers Senator Antonio Trillanes and Magdalo party-list Rep. Gary Alejano. They said over a thousand were killed by the so-called Davao Death Squad, while thousands more were killed in the war on drugs since Duterte became president.

In March 2018, Duterte pulled the country out of the ICC, a month after the international court announced a preliminary examination on alleged extrajudicial killings in the country. A preliminary examination will determine whether there is cause to go on a full-blown investigation.

Sabio believes the Philippines will have the same fate as Burundi, where the ICC handed its decision to open an investigation just two days before the country's withdrawal took effect.

READ: PH withdrawal from ICC brings case closer to a criminal investigation, lawyer says

'ICC securing witnesses'

What further convinced Sabio of an impending investigation was when a high-ranking official at the ICC Office of the Prosecutor contacted him in December 2018 in response to a letter he sent to the tribunal in February 2018. In that letter, Sabio asked the ICC about protective measures it can provide to whistleblowers Matobato and Lascañas.

"We talked about the two whistleblowers – Edgar Matobato and Arturo Lascañas. More specifically he asked me about the exact status and location of the two witnesses," Sabio said.

"I divulged details about them to assure that official that the witnesses are still alive and will be able to testify when needed," Sabio added.

Sabio believes the ICC wanted to ensure that they have vital witnesses so the possible case against the Philippines will prosper.

Duterte has repeatedly said he would not submit to the jurisdiction of the ICC and has mocked its Prosecutor, Fatou Bensouda, threatening to arrest her if she comes to the Philippines.

Sabio, however, said there's no stopping the ICC probe since "interested parties" like him and some opposition lawmakers can present evidence.

Impending withdrawal

The ICC, in an e-mail to CNN Philippines said a country's pullout, processed by the United Nations Secretary General, "is a sovereign decision, that can be reversed only by the national authorities themselves, as it has happened in the cases of South Africa and the Gambia."

According to the Philippine Coalition for the International Criminal Court, only two things can stop the country's withdrawal from the ICC - if Malacañang changes its mind, or if the Supreme Court nullifies the government's pullout.

Its co-chairman, Arpee Santiago said any of the two "should come before because when the withdrawal becomes effective and this will be by March 17, then by March 18 the Philippines has already withdrawn."

However, a source from the Supreme Court told CNN Philippines there is no scheduled action on the case in next week's en banc session. If a ruling is not made before March 17, the issue would become moot, Santiago said.

The ICC could also hand down its ruling after March 17, since the Rome Statute that has formed it states that a state "shall not be discharged, by reason of its withdrawal, from the obligations arising from this Statute while it was a Party to the Statute."

READ: ICC review to proceed despite PH withdrawal

Malacañang, meanwhile, has claimed that the withdrawal was not needed in the first place because the Philippines was never a member of the ICC. They argued the country's ratification of the Rome Statute, the treaty that formed the ICC, never took effect as it was not published in the Official Gazette.

The High Court, however, has conducted oral arguments on the petition of oppositon lawmakers who said the executive cannot pull the country out of the international tribunal without the Senate's concurrence.