The camp representing the victims of the notorious bloody drug war under then-president Rodrigo Duterte has petitioned the International Criminal Court (ICC) to junk the ex-leader’s appeal to disqualify Chief Prosecutor Karim Khan on grounds of impartiality.

In a submission dated 26 August, Principal Counsel Paolina Massida of the Office of Public Counsel for Victims asserted that the defense did not meet the “stringent requirements” under Article 42(7) of the Rome Statute, the ICC’s founding treaty, which outlines grounds for disqualification of a prosecutor.

The provision permits the disqualification of a prosecutor found to have been previously involved, in his/her private capacity, in the same case or a related one involving the same person being investigated or prosecuted.

Although Nicholas Kaufman, Duterte’s lead legal counsel, had already withdrawn their petition—claiming that there is “no ostensible reason” to doubt Khan’s impartiality, contradicting their prior accusations—the ICC Appeals Chamber has yet to render a decision on the matter. 

Kuafman had earlier petitioned the court to immediately disqualify Khan from further handling Duterte’s case, citing his past link to victims of the “very same” drug-related killings in the Philippines involving Duterte.

He accused Khan of exploiting the information he had acquired as a victims’ counsel to prosecute the former president, leading to his arrest on 11 March in Manila on the ICC’s warrant. 

One of the unique features of the ICC proceedings is that its prosecutor shall disclose both incriminating and exculpatory evidence against an accused. 

Hence, Khan’s prior role in a similar case compromised the fairness of the present proceedings, in violation of the principle, Kaufman claimed.

Massida, in response, countered that aside from failing to meet the “high threshold” in proving the presumption of partiality, she dismissed the defense’s appeal as “moot” and “untimely.”

Citing ICC rules, she maintained that the Duterte camp should have filed for Khan’s disqualification at the earliest stage of the proceedings. The nearly five-month delay in the filing, she contended, shall be considered a waiver or a forfeiture of their right to a timely request for disqualification. 

“Hence, waiting for four months to file the request after gaining knowledge of the potential grounds of disqualification of the Prosecutor (especially after positively informing the Pre-Trial Chamber of his intention not to seek Mr. Khan’s disqualification) cannot possibly be considered as raising the matter with the Appeals Chamber at the earliest possible moment,” Massida’s submission read. 

Moreover, she claimed that even if the defense succeeds in its efforts to disqualify Khan, it “will serve no practical purpose” given that the chief prosecutor is currently on a self-imposed leave due to allegations of sexual misconduct. 

Deputy prosecutor Mame Mandiaye Niang has taken over the investigation while Khan remains on leave. The latter previously clarified that this don't suggest that he has already withdrawn from Duterte's case and that he still intends to spearhead the probe after returning.

“Not only such disqualification proceedings will cause unnecessary distraction or erosion of confidence in the court as a whole among victims and the general public but will also waste precious time and resources of the Court. Therefore, on this ground alone, the request should be dismissed as moot,” the filing further stated. 

Furthermore, the majority of the evidence to be presented against Duterte at the confirmation of charges hearing on 23 September does not include those obtained by Khan while he was still the counsel of drug war victims, according to Massida. 

Thus, she said, “there is nothing else to suggest that he is not free to depart from previous, if any, factual findings which he has made in relation to that [REDACTED].”

“The disqualification of the prosecutor is not a step to be undertaken lightly and a high threshold must be satisfied in order to rebut the presumption of impartiality…In the present circumstances, the defence’s allegations fall short of meeting this high threshold and thus should be rejected,” Massida concluded.

Khan has already denied being directly involved in the previous investigation related to drug war killings, claiming the review of the submissions against Duterte was handled by a team of lawyers within the Office of the Prosecutor (OTP), 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 ICC probe into Duterte’s brutal anti-drug campaign was officially launched on 15 September 2021, just months after Khan assumed the post, replacing lead prosecutor Fatou Bensouda.

Bensouda initially 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. 

Subsequently, 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. 

Duterte, 80, is facing a single charge of murder for his role as an indirect co-perpetrator in the drug war killings waged by his administration, which saw thousands killed, mostly from poor communities.

He will remain detained at the Scheveningen Prison in The Hague, Netherlands, while awaiting the pre-trial hearing, unless the ICC grants his request for a temporary release. Kaufman earlier told the tribunal that an undisclosed country has already agreed to host Duterte.