ICC prosecutors silent on Duterte lawyers’ bid

International Criminal Court (ICC) prosecutors neither oppose nor support a petition by the camp of former president Rodrigo Duterte to disqualify three Filipino lawyers of drug war victims on the grounds of “conflict of interest.”

In a submission dated 16 February, Deputy Prosecutor Mame Mandiaye Niang briefly informed the court that they “take no position” on the defense’s request.

“Should it assist the chamber in considering the defense’s request, the prosecution confirms that it will not rely on [redacted] for the confirmation of charges hearing. The prosecution also does not intend to rely on [redacted] at trial,” the prosecution team said in a three-page filing.

Duterte’s lead counsel, Nicholas Kaufman, asked the ICC last week to disqualify court-accredited lawyers for drug war victims Joel Butuyan and Gilbert Andres, as well as Nicolene Arcaina, who was appointed “case manager.”

Kaufman argued that Butuyan and Andres approved the inclusion of Arcaina to the victims’ legal team despite their prior professional connection with her, which he said could affect the fairness of the proceedings.

He alleged that Arcainia had worked closely with 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 who is now allied with Duterte and had served as his spokesperson — might have previously worked with ICC prosecutors during their investigation into the drug war in the Philippines, according to Kaufman.

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

The provision prohibits lawyers 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.

Kaufman implied that Butuyan and Andres deliberately ignored this by processing Arcania’s appointment to their team despite it constituting a “conflict of interest.”

“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,” the defense’s submission dated 11 February read.

“This clearly undermines the fairness of the proceedings,” it concluded.

As a result, the defense filed a petition to revoke the appointment of the three Filipino lawyers and requested the immediate suspension of their access to the case records.

This recent submission by the Duterte camp only adds to the series of defense filings ahead of the confirmation of charges hearing scheduled for 23 to 27 February.

Duterte is facing three counts of murder for crimes against humanity over the killings recorded between 1 November 2011 and 16 March 2019, spanning his time as Davao City mayor and as president.

After a five-month delay, Duterte will face the judges of the ICC Pre-Trial Chamber I anew next week, 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.

The prosecution has admitted 1,242 evidentiary items gathered between 11 September 2025 and 29 January this year to bolster its case against Duterte.