The defense team of former president Rodrigo Duterte intends to spend at least five hours arguing his case before the judges of the International Criminal Court, where he is facing a single charge of murder for crimes against humanity. 

In a submission dated 22 August, Duterte’s lead counsel, Nicholas Kaufman, stated that they will allocate 30 minutes each for opening and closing statements, and three to four hours for oral presentation during the confirmation of charges on 23 September. 

This is a crucial stage as this is where the magistrates determine whether the case against the former leader is solid enough to proceed with a full-blown trial; otherwise, it will be dismissed.

The lawyers of Duterte intend to exhaust the majority of the hearing to argue “a number of core legal issues,” primarily concerning the modes of liability imputed to the erstwhile leader as well as whether he met the requirements of crimes against humanity to be convicted for such. 

Article 7 of the Rome Statute, the ICC’s founding treaty, outlines the criminal offenses that constitute crimes against humanity. This includes murder, torture, rape, enforced disappearance of persons, and other inhumane acts intentionally causing great suffering, or serious injury to the body, or to the mental or physical health of the victims, among others. 

At present, Duterte faces a single charge for crimes against humanity, specifically murder, allegedly committed between 1 November 2011 and 16 March 2019, covering his tenure as Davao City mayor and as president.

The charges, however, could still be expanded if the prosecution can produce additional evidence to substantiate other offenses during the pre-trial hearing, where 303 drug war victims are expected to attend.

Kaufman, meanwhile, contended that the allegations against Duterte have no merit, strongly denying that he committed crimes against humanity related to his notorious anti-narcotics campaign. 

“For the sake of clarity and the historical record, Mr Duterte did not commit any criminal offence. Mr Duterte served his city and country, faithfully and with pride, for many years,” Kaufman said in the filing. 

Disqualification vs Khan dropped

As this developed, the defense withdrew its petition to disqualify ICC Chief Prosecutor Karim Khan, whom they alleged of impartial over his prior involvement in a drug-related killing case against Duterte.

Kaufman told the court that they will no longer seek Khan’s disqualification due to lack of “ostensible reason to doubt the prosecutor’s impartiality or his assertions that he is not conflicted on account of his former representation of [redacted].”

This is contrary to the assertions by Duterte’s camp that Khan’s prior involvement, as a private lawyer, in a similar issue raised against Duterte compromises the fairness of the proceedings and thus must be disqualified.

The defense earlier accused Khan of exploiting the data he had acquired as a drug war victims’ counsel to now prosecute Duterte, in violation of 42(7) of the Rome Statute, which prohibits prosecutors from participating “in any matter in which [his] impartiality might reasonably be doubted on any ground.”

In response, Khan denied that he was 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, headed by a deputy prosecutor, not Khan himself. 

Furthermore, Khan argued that not every prior involvement merits disqualification, citing previous instances where prosecutors have been appointed by international tribunals despite having involvement in prior investigative proceedings.

“The defen[s]e, for its part, will not impede the smooth running of proceedings by seeking the prosecutor’s disqualification,” Kaufman said in response in a submission dated 15 August.

Despite the Philippines’ withdrawal from the Rome Statute on 17 March 2019, the ICC has maintained jurisdiction over the crimes committed during Duterte’s anti-drug campaign before the country departed the treaty.

To recall, the Philippines, under Duterte’s watch, exited from the Rome Statute after the ICC launched a preliminary investigation into his brutal drug war, which saw over 6,000 deaths based on government data. Human rights war, however, estimated the actual death toll exceeded 30,000, mostly from poor communities.