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Explainer: Why Trillanes' threat to impeach Duterte by May 2017 is nothing but a bluff

As expected, the ever brilliant Sass Rogando Sasot gives us the full picture to understand how serious the threats from Trillanes are.
Noah Luchansky
PTPA Noah Luchansky
FROM: For the Motherland - Sass Rogando Sasot

YOU CANNOT SELECT WHEN YOU WILL HAVE A TRIAL AT THE ICC

There's an FB post sent to me by several people, and appearing on my newsfeed as it's being reposted by people I know.
To summarise it: The post says that Trillanes' plan is to have Duterte tried at the ICC this May.

The problem with that is you cannot determine when you will have a trial at the ICC. There is a LOOOOONG process before a trial starts at the ICC.

There are three possible ways the ICC Prosecutor investigates a case:
1. The situation is referred to the ICC by the UN Security Council.
2. The situation is referred to by a Member State of the ICC
3. Own initiative of the ICC Prosecutor

In the case of Duterte, #1 is impposble because China will surely veto any UNSC resolution authorising that referral. #2 is quite hard. The likely suspect, the United States, cannot do it because it's not a Member State of the ICC. #3 is the likely path.

Kenya's Uhuru Kenyatta is the first incumbent president to be tried at the ICC. He was accused of five counts of crimes against humanity. In order to appear in court, Kenyatta had to leave his country and hand over powers to his deputy president.

It was also the first time the ICC Prosecutor investigated a case on his own initiative. What happened to Kenyatta could happen to Duterte.
Being issued a warrant of arrest by the ICC would be the worst thing that could happen to Duterte. If Duterte gets issued a warrant of arrest, he would be arrested and detained here in The Hague.

After issuing the warrant, the ICC would send to the Philippines a “Request for Cooperation,” requesting the Philippines to arrest and surrender Duterte. The ICC doesn't have its own police force. The court only relies "on the cooperation of States and international organizations to arrest" people and bring them here in The Hague (See: http://bit.ly/2ejuRWa). Anyone who would like to bring Duterte down would certainly do everything for Duterte to be issued a warrant of arrest. Why? It would legitimise to the international community a coup d'etat against Duterte.
But what's the second best thing? A summon to appear. Instead of a warrant of arrest, Kenyatta was just issued a summon to appear here in The Hague because the ICC didn't perceive Kenyatta "to be a flight risk and that nothing [indicated that he] would evade personal service of the summons or refrain from cooperating if summoned to appear" (See: http://bit.ly/2etxRwP). If issued that summon, Duterte would need to come here in The Hague; he wouldn't be detained in prison, but would have his freedom of movement restricted. If Duterte ignored the summon, it would be changed into a warrant of arrest.

A warrant or a summon would mean one thing: Duterte needs to devolve powers to VP Robredo,while being tried here in The Hague, just like what Kenyatta did. So how long before this could happen?

Here's the timeline of the Kenyatta Case:
1. PRELIMINARY EXAMINATION
December 2007 - ICC Prosecutor conducted preliminary examination of the situation in Kenya

2. REQUEST FOR INVESTIGATION
26 November 2009 - ICC Prosecutor filed to the Pre-Trial Chamber Court II a "Request for authorisation of an investigation"

3. REQUEST FOR INVESTIGATION GRANTED
31 March 2010 - ICC Pre-Trial Chamber Court II granted authorisation (Read decision: https://www.icc-cpi.int/CourtRecords/CR2010_02399.PDF)

4. ICC PROSECUTOR SUBMITTED APPLICATION FOR A SUMMON AGAINST KENYATTA ET AL

15 December 2010 - ICC Prosecutor submitted the Application requesting the Chamber to:
"a) Find that there are reasonable grounds to believe that....
UHURU MUIGAI KENYATTA...committed crimes
within the jurisdiction of the International Criminal Court and find that the issuance of summonses to appear is appropriate;

b) Issue summonses to appear for....UHURU MUIGAI
KENYATTA..."

The Summon was granted on 8 March 2011. Ordered Kenyatta et all to appear on 7 April 2011.

(Read decision: https://www.icc-cpi.int/CourtRecords/CR2011_02586.PDF)
For lawyers, that decision is a good read, specially the dissenting opinion of one judge.

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In sum, the ICC Prosecutor took 2 years to conduct a preliminary examination of the situation in Kenya. It took 4 months before an authorisation to investigate was granted by the pre-trial chamber. The investigation took 9 months. And it took 3 months before a summon to appear was issued.
So, based on this, it would take around 3 years and 4 months before a summon to appear would be issued against Duterte. That's around 2020. BUT global pressure could shorten that. So expect international media character assassination against Duterte to intensify in the coming months...
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So at what stage is the ICC threat now? It's still at its very, very, very, very early stage. The ICC Prosecutor has not yet announced that she would conduct a preliminary examination of the situation.


Trillanes, the sundalong kanin, try harder.

Explainer: Why Trillanes' threat to impeach Duterte by May 2017 is nothing but a bluff Explainer: Why Trillanes' threat to impeach Duterte by May 2017 is nothing but a bluff Reviewed by Raelyn Luchansky on 5:25:00 AM Rating: 5

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