International Criminal Court Chief Prosecutor Karim Khan has countered the petition of former president Rodrigo Duterte’s lawyer seeking to disqualify him on allegations of impartiality, arguing that “no grounds exist” for him to recuse himself in the investigation into the ex-leader’s brutal drug war.  

In a 13-page submission dated 18 August, Khan asserted that he still intends to spearhead the probe despite being on a self-imposed leave due to allegations of sexual misconduct. 

Duterte’s lawyer, Nicholas Kaufman, accused Khan of previously handling a case of drug-related killings in the Philippines similar to those raised against Duterte, compromising the fairness of the proceedings.

The defense claimed that Khan represented drug war victims in his capacity as a private lawyer, and did not inform the ICC Pre-Trial Chamber I about it when he assumed the role of lead prosecutor, deeming it a “blatant conflict of interest.” 

One of the unique features of the ICC proceedings is that the prosecutor must “cover all facts and evidence relevant to an assessment of whether there is criminal responsibility under this Statute.” This means that the prosecutor shall gather both incriminating and exonerating evidence against an accused. 

Kaufman argued that Khan violated this principle by continuing to oversee “a fair and impartial investigation” despite his past involvement in a case with the “very same policy of killing.” The defense accused Khan of exploiting the data he had acquired as a drug war victims’ counsel by using it now in the present case against Duterte. 

Khan, however, contended that not every prior involvement in a case before the court merits disqualification, citing previous instances where prosecutors have been appointed by international tribunals despite having involvement in prior investigative proceedings.

Contrary to Kaufman’s accusations, Khan claimed that he was not directly involved in the previous investigation because the review of the submissions was handled by a team of lawyers, within the Office of the Prosecutor (OTP), headed by a deputy prosecutor, not Khan himself. 

“The obligations of the prosecutor are entirely different from the obligations of a legal team…In particular, the prosecutor must investigate incriminating and exonerating circumstances equally,” Khan said.

“The reasonable observer would perceive that this is an entirely different role and hence any opinions formed in the course of the submission would not reasonably impair the prosecutor’s impartiality today,” he added. 

The ICC probe into Duterte’s notorious anti-drug campaign was officially launched on 15 September 2021, just months after Khan assumed the post, replacing lead prosecutor Fatou Bensouda.

Bensouda led the charge in launching the preliminary probe into the drug-war killings in the Philippines as early as February 2018, merely two years into Duterte’s presidency.

The investigation, however, met strong objections from the Philippines and was deferred after two months at Duterte’s request. In January 2023, it was ordered to be resumed notwithstanding the Philippines’ appeal. 

Thereafter, the OTP has continued gathering evidence against Duterte, but “Khan never considered there to be any issue regarding his involvement in the Philippines’ situation” since assuming the post. 

“It is clear that the prosecutor’s prior involvement in the situation in the Republic of the Philippines was not in a capacity by virtue of which his impartiality might reasonably be doubted and was not such that he could be expected to have formed an opinion of the case in question that, objectively, could adversely affect his impartiality,” the filing read.

“Having given due consideration to the matter, the Prosecutor concludes that no grounds for disqualification exist and therefore the Prosecutor is not ‘seeking to be excused’,” it added. 

Duterte, 80, is facing a single charge of murder for crimes against humanity related to his notorious anti-drug campaign, which saw more than 6,000 deaths based on the government’s data.

Rights watchdogs, however, estimate that the actual death toll could exceed 30,000, most of them from low-income communities.

The figure only accounts for the killings during Duterte’s presidency, with ICC records spanning earlier incidents from as early as November 2011, during Duterte’s term as Davao City mayor. 

Duterte 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.

His camp 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, the founding treaty of the ICC, 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.