Duterte camp seeks to disqualify ICC prosecutor who led drug war probe

The camp of former president Rodrigo Duterte has petitioned the International Criminal Court (ICC) to disqualify the lead prosecutor who spearheaded the ex-leader’s bloody drug war crimes, citing his previous involvement in an identical case that “casts doubt” on his impartiality. 

In a 14-page submission dated 7 August, Duterte’s lead legal counsel, Nicholas Kaufman, told the ICC that Karim Khan — the chief prosecutor currently on a self-imposed leave due to allegations of sexual misconduct — had previously handled a case relating to Duterte’s war on drugs, representing some of its victims in his capacity as a private lawyer.

At the time, Khan had yet to assume the post as the lead prosecutor probing the drug war killings. However, when he did so, Khan allegedly failed to disclose such information and continued to oversee “a fair and impartial investigation of that very same policy of killing.”

The defense argued that this contravenes Rule 34(1)(b) of the ICC’s Rules of Procedure and Evidence, which prohibits a judge or a prosecutor’s involvement in his or her private capacity, in any legal proceedings initiated prior to his or her participation in the case, and warrants disqualification.

“In his subsequent role as Chief Prosecutor, Mr. Khan seemingly exploited the information that he had acquired as a victims’ representative,” the document read. “Mr. Khan relied on information obtained while defending the independent interests of the victims to support actions falling under an entirely separate mandate — one that also carries the obligation to disclose exculpatory evidence.”

Furthermore, Kaufman alleged that Khan did not seek a waiver from his former clients before spearheading the investigation, thereby “abus[ing] the criminal process to push forward an investigation in which he had an undeclared personal interest.”

“When assuming the role of Chief Prosecutor…Mr. Khan took on the statutory obligation of actively seeking exculpatory evidence. Yet such exculpatory evidence could, by its very nature, cast doubt on the testimony provided by the same people whose interests he had been charged to protect,” Kaufman said. 

In June 2021, Khan succeeded then-chief prosecutor Fatou Bensouda, who led the charge in launching the preliminary probe into the drug-war killings as early as February 2018, just nearly two years into Duterte’s presidency.

It was only on 15 September 2021 that the investigation was set in motion, spearheaded by Khan as the newly appointed head prosecutor. Two months later, the investigation was deferred pursuant to then-president Duterte’s request. 

Deputy prosecutor Mame Mandiaye Niang has temporarily taken over the investigation while Khan remains on leave.

Kaufman argued that Khan’s failure to disclose this “blatant conflict of interest” from the beginning until the ICC Pre-Trial Chamber issued a warrant against Duterte on 6 March raises serious questions about his impartiality, in violation of Article 42(7) of the Rome Statute, the ICC's founding treaty.

The provision prohibits a prosecutor from participating in any case where their impartiality might reasonably be doubted. A disqualification is warranted if they have been found previously involved in the same case or a related one involving the same person being investigated or prosecuted.

“Mr. Khan continued to supervise the Philippines’ investigation unabated until the very eve of the submission of an application for the arrest of Mr. Duterte. As far as the defence is aware, Mr. Khan did not notify either the Pre-Trial Chamber or the Appeals Chamber of his former involvement in [REDACTED],” Kaufman said. 

“Mr. Khan should, as a result, be disqualified from any further involvement in the case against Mr. Duterte.” 

Duterte, 80, is facing a single charge of crimes against humanity related to his notorious bloody war on drugs. He has been detained at Scheveningen Prison in The Hague, Netherlands, since his arrest on 11 March in Manila, and will remain there while awaiting the confirmation of his charges on 23 September.

The government logged more than 6,000 drug-related deaths covering only Duterte’s tenure as president, though rights watchdogs estimate that the actual death toll could exceed 30,000, most of them from low-income communities.

ICC records, however, also covered the summary killings carried out since November 2011, during Duterte’s term as Davao City mayor. 

Duterte’s defense has since contested the jurisdiction of the ICC to prosecute him, considering that the Philippines is no longer a state party to the Rome Statute as early as March 2019.

The ICC, however, asserted that it still retains jurisdiction over the killings committed prior to the country’s withdrawal, emphasizing that the preliminary investigation had already commenced even before the country departed the treaty.