Sabio ‘drops’ ICC communication vs Duterte, but does it matter?

Lian Buan

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Sabio ‘drops’ ICC communication vs Duterte, but does it matter?
(UPDATED) Experts say it will not affect the ongoing preliminary examination of the Philippine case

MANILA, Philippines (UPDATED) – Filipino lawyer Jude Sabio said on Tuesday, January 14, that he will withdraw his communication before the International Criminal Court (ICC) against President Rodrigo Duterte and about human rights violations in the Philippines.

“I intend to withdraw such communication from the ICC and seek the setting aside of the legal matter at hand,” Sabio said in an affidavit dated Tuesday that was sent to media by suspended lawyer Larry Gadon, who said he is assisting Sabio “for moral support.”

In a message to reporters, Sabio confirmed the withdrawal and said he will submit his affidavit to the ICC personally “anytime soon.”

But will the withdrawal matter? There are many other communications filed with the ICC, and Prosecutor Fatou Bensouda has already said she was relying on many “open sources” for information on the Philippines.

Bensouda is wrapping up her preliminary examination of the Philippines and said last December that a final recommendation will come in 2020. Bensouda will decide whether she will ask permission from the Pre-Trial Chamber to open a formal investigation into allegations of human rights abuses against Duterte. Once granted, the PTC judges can issue summons and even arrest orders.

“You can’t withdraw a communication. A communication has no legal status. The prosecutor does with the information what she wants,” Thomas Verfuss, the Hague representative of the Journalists for Justice and who covers the ICC, told Rappler.

International Law Professor Romel Bagares, lead counsel for the petition before the Supreme Court challenging the constitutionality of Duterte’s withdrawal from the ICC, said Sabio’s communication “is just one of many such open sources.”

“The Office of The Prosecutor’s (OTP) report of 5 Dec 2019 said it drew from open sources on alleged extrajudicial killings in the Philippines. Sabio is just one of many such open sources; as we noted before, his first communication dealt largely with irrelevant matters — of events that happened before Mr Duterte became President,” Bagares told Rappler.

Emerlynne Gil of the International Commission of Jurists (ICJ) told Rappler the same: “The withdrawal of one complaint will not significantly impact the preliminary examination. I think the preliminary examination would still go on.”

“It will not affect the Preliminary Examination since what he filed is not a complaint. The communication he filed is based in facts that can be verified independently,” said lawyer Ray Paolo Santiago, a co-petitioner in the ICC case before Supreme Court.

As of March 2019, there have been 52 communications filed against Duterte before the ICC, including those filed by opposition figures Antonio Trillanes IV, Gary Alejano; human rights lawyers National Union of Peoples’ Lawyers (NUPL), and group of relatives of victims of the drug war, Rise Up.

Why withdraw?

In the affidavit, Sabio cited his case representing confessed hitman Edgar Matobato.

Matobato’s confessions of being part of Duterte’s alleged Davao Death Squad (DDS) in the latter’s term as mayor of Davao City, were largely cited by Sabio in his communication.

Saying that “the same thing with Matobatao would happen,” Sabio said in his affidavit that: “I would be given a pittance when they needed me for the political propaganda, and then later I would be told that there was no more budget due to financial constraints.”

He added: “I fervently request that the legal matter pending with your office in relation to the war on drugs in the Philippines should just be set aside and thrashed for being just a part of the political propaganda of Senator Trillanes, Senator (Leila) De Lima and their Liberal Party-led opposition of which I do not wish to be a part.”

Sabio has had a public tiff with Trillanes over his work representing whistleblowers. At a hearing at the Department of Justice (DOJ) last October, where both are respondents for kidnapping, it appeared Sabio and Trillanes had already patched things up.

The withdrawal will definitely serve to buoy up the confidence of the President’s defenders. But as to its evidentiary weight, to begin with, his initial submission pertained to largely irrelevant matters, as I have said from the beginning,” said Bagares.

Duterte has withdrawn the Philippines from the ICC, but the Court maintains its authority over the case because the examinations were opened before the withdrawal. Those were the rules set by the Rome Statute. Experts, however, warned that the withdrawal will make the examinations difficult. 

‘Fight continues’

De Lima said she felt “sorry” for Sabio as she believed that he had become  “very vulnerable to the machinations from the dark forces.”

“I’m pretty sure there are forces, desperate ones, behind this development. I don’t have to imagine the temptation Atty Sabio must have faced, urging him to put his own interests ahead of those he is supposed to be advocating for. Those voices of temptation could be difficult to resist, and commitments to truth and justice could waver,” the senator said.

She agreed that Sabio’s move came too “too late” and would not have any “significant dent on the progress of the current ICC interventions.”

“There are other communications and information presented before the ICC on the matter of crimes against humanity perpetrated by the Duterte regime. The Sabio Communication  (not a Complaint; no such thing in ICC processes) may be the first, but not the only one under consideration by the ICC,” De Lima said.

“Atty Sabio may have fallen, but the fight continues without him and in spite of his betrayal of the victims,” she added.

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Lian Buan

Lian Buan is a senior investigative reporter, and minder of Rappler's justice, human rights and crime cluster.