Digong camp touts ‘exculpatory’ proof

The International Criminal Court (ICC) has granted both the prosecution’s and the defense’s bid to submit additional pieces of evidence a little over a week before the confirmation of charges hearing on the crimes against humanity against former President Rodrigo Duterte in connection with his bloody war on drugs. 

Duterte’s lawyer, Nicholas Kaufman, sought the court’s permission to submit 78 additional pieces of evidence he deemed “highly relevant” that would strengthen their defense against the murder charges brought by the prosecution. 

The prosecution reviewed and did not object to the defense’s request to submit additional evidence, but on condition that they would also be allowed to file two additional pieces of evidence. 

The new evidence would be added to the prosecution’s 1,242 evidentiary items gathered between 11 September 2025 and 29 January this year to bolster its case against Duterte. 

Of the items, 376 could be material to Duterte’s camp to build their defense, while nine were deemed by his camp to be “potentially exculpatory” in proving his innocence.

Judges of the ICC Pre-Trial Chamber I (PTC-I), tasked to determine Duterte’s innocence or guilt of the crimes charged, granted the requests to submit additional evidence of both camps, citing the lack of objection by the lawyers of the drug war victims. 

“Noting the limited extent of the requested additions, the nature of the material concerned and its relevance to the charges brought against the suspect, as well as the absence of objection from the parties and participants to both the defense’s and prosecution’s requests, the chamber considers that there is good cause to grant such requests without causing undue prejudice to either party,” the four-page decision dated 10 February read. 

Counsels’ ouster sought

As a result, the defense and the prosecution would be given until 13 February to update their respective evidence lists.

Duterte is set to face the judges of the pre-trial chamber anew on 23 February, almost a year after his arrest in Manila on 11 March 2025, to determine if the charges brought against him are sufficient to proceed to a full-blown trial.

Meanwhile, in the latest round of filings ahead of the pre-trial hearing, the defense petitioned the court to disqualify three legal counsels for the victims of Duterte’s drug war, citing a “conflict of interest.”

Kaufman argued that ICC-appointed lawyers Joel Butuyan and Gilbert Andres approved the inclusion of Nicolene Arcaina in the victims’ legal team as case manager, despite their having had a previous professional connection with her, which he said could affect the fairness of the proceedings. 

The submission alleged that Arcainia worked alongside Butuyan and Andres from March 2019 to December 2023 as a fellow and staff lawyer at CenterLaw Philippines. 

The law firm, co-founded by lawyer Harry Roque — now allied with Duterte and who had served as his spokesperson — might have previously worked with ICC prosecutors during their investigation in the Philippines into the drug war, Kaufman said. 

Furthermore, he pointed out, as the victims’ case manager, Arcania might have gained access to sensitive information from the prosecution in violation of Article 12 of the ICC Code of Professional Conduct for Counsel. 

Opposing interests

The provision prohibits counsels from taking on cases that are substantially related to another case in which they or their associates had representation or former representation, especially if they had opposing interests.

“Even if the Pre-Trial Chamber should be persuaded that there exists no impediment to representation arising out of the appointment of the three external legal representatives, a conflict of interest arises with respect to Nicolene Arcaina’s current role as a victim’s case manager and [redacted],” Kaufman argued. 

“These roles are structurally incompatible. The practical effect of [redacted] is that [redacted] may access and retain potentially exculpatory evidence or information material to the defense outside the disclosure regime which, as shown above, is indeed the case. This clearly undermines the fairness of the proceedings,” the submission read.