The camp representing drug war victims has petitioned the International Criminal Court (ICC) to extend them some leeway to file their defense to the request of former president Rodrigo Duterte’s lawyer to disqualify the lead prosecutor who spearheaded the rigorous investigation into the so-called extrajudicial killings. 

Duterte’s lead legal counsel, Nicholas Kaufman, has asked the ICC to disqualify chief prosecutor Karim Khan, citing concerns of impartiality. The British-Israeli lawyer accused Khan of previously handling an identical case to Duterte, and hence, must be eliminated for violating several provisions of the Rome Statute and the ICC. 

In a submission dated 15 August, Principal Counsel Paolina Massida of the Office of Public Counsel for Victims argued she was not immediately given access to Kaufman’s request following its filing on 6 August. The filing included documents that primarily formed the basis of Duterte’s camp to disqualify Khan. 

Massida therefore petitioned the ICC Appeals Chamber to extend the deadline for her response to the defense’s bid, claiming she only obtained access to the said documents five days later, leaving her insufficient time to file her defense, given the required 10-day window. 

“Considering the ten days deadline established by regulation 34(b) of the Regulations of the Court to file a response, and, in light of the importance of the matter under litigation for the interests of the victims, the Legal Representative requests the Appeals Chamber to vary the standard time limit for filing her a response so that the relevant time limit starts running from the date of notification of the said documents,” the filing read. 

To recall, Massida also opposed the defense’s petition for Duterte’s temporary release, asserting that it would be a “great destabilizing factor to the volatile security” in the Philippines, and pose a direct and significant danger to the victims” of this notorious anti-drug campaign.

Kaufman earlier told the ICC that Khan, who is on a self-imposed leave due to allegations of sexual misconduct, had represented drug war victims in his capacity as a private lawyer.

The defense asserted that this violated Rule 34(1)(b) of the ICC’s Rules of Procedure and Evidence, which warrants the disqualification of a judge’s or prosecutor’s due to “involvement, in his or her private capacity, in any legal proceedings initiated prior to his or her involvement in the case, or initiated by him or her subsequently, in which the person being investigated or prosecuted was or is an opposing party.”

ICC proceedings differ significantly from those in other courts. One unique feature is that the prosecutor must “cover all facts and evidence relevant to an assessment of whether there is criminal responsibility under this Statute,” pursuant to Article 54 of the Rome Statute.

This means that the prosecutor shall gather both incriminating and exonerating evidence against an accused. 

Kaufman contended that Khan “may have exploited the information that he had acquired as a victims’ representative,” and this “blatant conflict of interest” warrants his disqualification.

“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],” the defense submission dated 7 August read.

Further, Kaufman alleged that Khan did not seek a waiver from his former clients before spearheading the bloody drug war probe, 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.

Khan assumed his post in 2021, succeeding then-chief prosecutor Fatou Bensouda, who began the preliminary probe into the drug-war killings as early as February 2018, nearly two years into Duterte’s presidency.

It took more than two months before the investigation officially began on 15 September 2021 under Khan’s leadership. Two months later, the probe was deferred at Duterte’s request.

Kaufman accused Khan of withholding his former involvement from the Pre-Trial Chamber or the Appeals Chamber and continued to oversee “a fair and impartial investigation of that very same policy of killing.”

Last week, human rights lawyer and ICC assistant to counsel Kristina Conti, one of the Filipino legal counsels of the drug war victims, said Khan’s removalwould have little impact on the case against the former leader since Deputy Prosecutor Mame Mandiaye has already taken over to ensure proceedings continue.

Duterte, 80, has been detained at Scheveningen Prison in The Hague, Netherlands, since his arrest on 11 March in Manila for a single charge of crimes against humanity committed between 1 November 2011 and 16 March 2019, spanning his time as mayor of Davao City and his presidency.

He will remain there while awaiting the confirmation of the charges hearing on 23 September.

The drug war killings saw more than 6,000 dead, based on the government’s data. That figure covers only Duterte’s presidency, but rights watchdogs estimate the actual death toll could exceed 30,000, most from low-income communities.