ICC: All arrest warrant filings must now be kept 'secret'

MANILA, Philippines — The International Criminal Court (ICC) has revised its court regulations to mandate that all applications for arrest warrants be classified as either "under seal" or "secret".

The tribunal began implementing the amended Regulations of the Court on November 10, adding a subsection to Regulation 23 — which covers documents filed — to make applications for arrest warrants automatically confidential.

"The amendment standardises the existing practice of Pre-Trial Chambers instructing the Prosecution to file applications pursuant to article 58 of the Statute confidentially," the ICC said in a statement. 

The new rule under "Regulation 23 ter" sets out three conditions. First, any application for a warrant of arrest or a summons to appear under Article 58 of the Rome Statute must be filed privately and classified as “secret” or “under seal.”

Second, any related filings, such as amendments to the arrest warrant application, must also be submitted in the same manner.

Finally, the content of these applications must remain confidential unless the Chamber decides to lift the secrecy or change the classification. Still, a pre-trial chamber may opt to release applications for arrest warrants or summons to appear if doing so would "maximize opportunities for arrest" or help prevent further crimes.  

Proposed amendments are reviewed by the Court’s Advisory Committee on Legal Texts, comprising three judges and a representative from the Office of the Prosecutor, the Registry, and counsel members.

The regulation has been sent to state parties for feedback but is already being enforced. It will remain in effect if no objections are raised by a majority within six months.

What this means for Bato

The recent amendment took effect a few days after Ombudsman Boying Remulla said the ICC had already issued an arrest warrant for Sen. Bato dela Rosa, who was a key architect of the Duterte administration’s bloody war on drugs.

It was also on Monday when ICC spokesperson Fadi El Abdallah said he could not confirm whether or not an arrest warrant against Dela Rosa had already been issued by the court. 

For ICC assistant to counsel Kristina Conti, this does not ultimately mean that no warrant of arrest has been issued at all. It could have been done in secret. 

"What this means is that, whether a warrant has indeed been issued or is still to be issued, it is most likely not intended to be made known to the public," she said in a post on Tuesday, November 11. 

She added that arrest warrants would typically be publicized when the suspect appears before the court. This was the case of former president Rodrigo Duterte. His warrant was issued by Pre-Trial Chamber I on March 7, but it was not disclosed until his arrest on March 11. 

"Usually naman nakalagay explicitly kung for public consumption or secret. Case in point, Netanyahu and Putin warrants pinublic din para daw maging signal sa kanila na tumigil. Kahit hindi pa sila nahuli," she told Philstar.com in a message.

(Usually, it is explicitly indicated whether something is for public release or confidential. A case in point is the warrants for Netanyahu and Putin, which were also made public to serve as a signal for them to stop, even though they had not yet been apprehended.)

In Dela Rosa's case, while Remulla said he is aware of an arrest warrant, the Department of Justice said it has not yet received any notification from the Interpol, to which the Philippines still has obligations, even though the country is no longer a member of the Rome Statute. 

The DOJ said on Tuesday that it will comply with the Interpol should there be a request to arrest Dela Rosa, which may be done either through extradition or surrender. 

Since March, former president Rodrigo Duterte has been detained by the ICC over crimes against humanity charges stemming from his anti-drug campaign, which reportedly caused thousands of deaths without due process, according to government data and human rights groups.

Dela Rosa, whom Duterte appointed as police chief in 2016, was the one who oversaw the implementation of Oplan Tokhang, which was part of the administration's "Double Barrel" program against illegal drug users that resulted in extrajudicial killings.

Duterte is still awaiting a fitness check by a panel of three medical experts recommended by the ICC Registry. The assessment follows the indefinite postponement of his confirmation of charges, amid questions on whether he is fit to stand trial.