Piecing together the defense strategy of former President Rodrigo Duterte’s lead counsel, Nicholas Kaufman, based on the latter’s statements, his client could be home before 23 September.

The defense strategy as shaped by Kaufman would hinge on the argument that Duterte was “denied all his rights” during his arrest on 11 March.

A multi-pronged legal approach is expected which — based on Kaufman’s statements, his experience, and ICC procedures — will have the defense team take on the legality of Duterte’s arrest and transfer.

Kaufman’s assertion that Duterte was denied his rights during his arrest points to a potential challenge using Article 59 of the Rome Statute, which governs arrest procedures in the custodial state which is the Philippines.

The article requires that a person arrested at the ICC’s request be brought before a competent judicial authority in the custodial state to ensure that the arrest complies with domestic law and respects the individual’s rights, such as the right to be informed of the charges and the right to legal representation.

The particular Statute provision was the bone of contention during the Senate hearing on Thursday as senators pounded those who enabled the swift travel of Duterte to The Hague and ICC detention about his being denied his right to be presented before a local court.

Kaufman could argue that the swift arrest and transfer of Duterte, within hours of his arrival from Hong Kong, violated the procedural safeguards that would have afforded the former president a proper hearing in the Philippines to contest the arrest warrant.

He was also not given adequate time to prepare a defense before his transfer. The argument points to a crack in the legitimacy of the ICC’s custody over Duterte.

Demonstrating that the arrest process breached international legal standards and Philippine law, despite the country’s withdrawal from the ICC, the case could be dismissed and Duterte returned to the Philippines for a reassessment of the arrest process.

The confusion over the Red Notice which the government is now claiming was a Red diffusion notice — that is not on the level of the Interpol blacklisting the Philippines if it is not given due course — may work in Duterte’s favor.

The administration has framed the arrest as a fulfillment of international commitments.

The cornerstone of the defense would be a challenge to the ICC’s jurisdiction.

The government withdrew from the Rome Statute effective 17 March 2019, which Duterte pointed out nullified the ICC’s authority over the country.

Asserting that the arrest and transfer were unlawful would dwell on the withdrawal since as a non-member state, the Philippines is not obliged to cooperate with the ICC under Article 59 and other provisions of the Rome Statute.

The ICC’s case which relies on crimes allegedly committed between 2011 and 2019, when the Philippines was still a member, does not extend to enforcement actions, especially given the absence of a domestic judicial review.

The ICC rejected a similar jurisdictional challenge from the Philippine government in 2023, ruling that it retained authority over crimes committed when the country was a member.

Kaufman will also likely argue that the rapid extradition prevented Duterte from preparing an initial defense in a meaningful way that prejudiced his ability to receive a fair trial as provided for in ICC safeguards to legal remedies such as additional time, resources, and even a stay of proceedings.

Kaufman’s previous defense of high-profile figures like former Congo government official and rebel leader Jean-Pierre Bemba and former minister of disarmament of the Central African Republic Maxime Mokom suggests Kaufman’s proficiency in exploiting procedural irregularities.

In Mokom’s case, Kaufman challenged the state cooperation with the ICC, though he withdrew before the prosecution dropped the charges due to insufficient evidence.

In Bemba’s case, procedural errors by the prosecution ultimately led to an acquittal on appeal. Kaufman vowed to secure an acquittal for Duterte “at the earliest stage possible.”

He may fulfill that promise even before ICC’s confirmation of charges hearing scheduled for 23 September.