Raising the issue of a perceived bias, the lawyer of former President Rodrigo Duterte has petitioned the International Criminal Court (ICC) to disqualify Karim Khan, the lead prosecutor in the drug war case, 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 counsel, Nicholas Kaufman, told the ICC that Khan, who is currently on a self-imposed leave following allegations of sexual misconduct, had previously handled a case similar to Duterte’s, representing some of the victims as a private lawyer.

At the time, Khan had yet to assume the post of lead prosecutor probing the Duterte drug war killings.

When he took the ICC assignment, Khan allegedly failed to disclose the earlier information and continued to oversee “a fair and impartial investigation of that very same policy of killing.”

The defense argued that this contravened Rule 34(1)(b) of the ICC’s Rules of Procedure and Evidence, which prohibits a judge’s or prosecutor’s involvement in their private capacity in any legal proceedings initiated before their participation in the instant case, warranting their disqualification.

“In his subsequent role as Chief Prosecutor, Khan may have exploited the information that he had acquired as a victims’ representative,” the defense argument went.

“Khan relied on information obtained while defending the independent interests of the victims to support actions falling under an entirely separate mandate — one that carries the obligation to disclose exculpatory evidence,” the defense continued.

No waiver sought

Further, Kaufman alleged that Khan did not seek a waiver from his former clients before spearheading the Duterte 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 Fatou Bensouda, who had handled the preliminary probe into the Duterte drug war killings since February 2018, two years into Duterte’s presidency.

But 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 under then President Duterte’s request.

Deputy take over

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

“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 defense is aware, Mr. Khan did not notify either the Pre-Trial Chamber or the Appeals Chamber of his former involvement in [redacted],” according to Kaufman.

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

Duterte, 80, is facing a single charge of crimes against humanity related to the war on drugs during his presidency.

He has been detained at Scheveningen Prison in The Hague, Netherlands, since his arrest on 11 March in Manila. He will remain there while awaiting the confirmation of charges hearing on 23 September.