Former president Rodrigo Duterte’s camp remains firm in its bid to disqualify three Filipino external counsel representing drug war victims, seeking a reversal of the International Criminal Court’s recent ruling retaining their appointment despite the defense’s allegations of conflict of interest.

Duterte’s lead counsel, Nicholas Kaufman, asked the ICC to revoke the appointment of Joel Butuyan, Gilbert Andres and Nicole Arcaina as common legal representatives for victims and case manager, respectively, “even if it is too late to remove them” from the confirmation of charges hearing scheduled from 23 to 27 February.

He argued that their continued retention poses a “clear impediment to representation” that “contaminates the entire process and affects the fairness of the proceedings.”

“This issue directly affects not just the fairness of the present proceedings, but the fairness of all proceedings at the International Criminal Court and the deontology of all independent counsel appearing before this institution,” the defense said in its request for leave to appeal dated 20 February.

“Prompt appellate resolution will ensure that the future proceedings will proceed on a sound basis, will avoid any future litigation on the matter, and will remove doubts as to the correctness of the impugned decision,” it added.

The petition challenges the Pre-Trial Chamber I’s decision issued the same day dismissing the defense’s motion to disqualify Butuyan, Andres and Arcaina on alleged grounds of conflict of interest.

The chamber ruled that Kaufman failed to clearly establish the legal basis of the petition and said the defense’s argument was misplaced because Arcaina serves as a case manager, not as counsel for the victims.

Kaufman alleged that Butuyan and Andres approved Arcaina’s appointment despite prior professional ties, which he said could affect the fairness of the proceedings and violate Articles 7(4) and 12 of the ICC’s Code of Professional Conduct for Counsel.

He told the court that Arcaina worked closely with Butuyan and Andres as a fellow and staff lawyer at CenterLaw Philippines from March 2019 to December 2023 and may have worked with ICC prosecutors during their investigation into the Philippines’ drug war.

Arcaina’s role, according to Kaufman, is “structurally incompatible,” and she might have obtained sensitive information from the prosecution.

He accused Butuyan and Andres of deliberately disregarding the provisions by approving Arcaina’s appointment despite what he described as a “conflict of interest.”

Pre-Trial Chamber I, however, said the defense failed to demonstrate the existence of a conflict of interest under Article 16 of the Code.

The provision bars counsel — not case managers — from handling cases substantially related to matters in which they previously represented opposing interests.

The chamber also underscored that “differences in roles, mandates, or obligations of these two entities do not per se indicate the existence of a conflict of interest.”

Appeals Chamber intervention sought

Kaufman maintained that the defense did not “misconceive” the issue. He also argued that Paolina Massidda, another common legal representative of victims, had known Arcaina for a “substantial period of time.”

“To suggest that Ms. Massidda was not aware of [redacted] and did not inform her colleagues is, with the utmost respect, not credible,” he said.

“Proving knowledge would be sufficient and justifiable cause for initiating disciplinary proceedings against these two external representatives. Lack of knowledge of Ms. Arcaina’s status, however, does not validate her appointment,” the submission further reads.

Kaufman urged swift intervention by the Appeals Chamber “to restore confidence in the integrity and impartiality of the proceedings.”

“In addition to tainting the fairness and transparency of the present proceedings, the potential for recurrent conflict of interests is liable to trigger litigation at a later stage,” he contended.

He also criticized what he described as Pre-Trial Chamber I’s late handling of the issues related to the CLRV appointment, saying it “deprived [them] of exhausting appeal avenues open to it.”

In further challenging the ruling, Kaufman said there was nothing “incoherent” or “theatrical” in the defense’s arguments, contrary to the chamber’s findings.

Pre-Trial Chamber I is set to begin the four-day confirmation of charges hearing on Monday until 27 February, except Wednesday, 25 February, marking the next stage in Duterte’s crimes against humanity case following a five-month delay.

Duterte waived his attendance and informed the court he would not follow the proceedings outside the courtroom.

He has argued that the ICC has no jurisdiction over his case following the Philippines’ withdrawal from the Rome Statute in 2019.

Duterte, 80, faces three counts of murder as crimes against humanity over killings recorded between 1 November 2011 and 16 March 2019, spanning his tenure as Davao City mayor and president.

Rights groups, however, have estimated the death toll to be significantly higher, possibly exceeding 30,000, mostly from poor communities, during his presidency.