The defense of former president Rodrigo Duterte strongly pushed back Thursday against the imputations of the International Criminal Court (ICC) prosecutors that he ordered police to kill alleged drug dealers regardless of whether or not they resist arrest, asserting that he encouraged using lethal force as a last resort. 

Duterte’s lead counsel, Nicholas Kaufman, accused the prosecution of cherry-picking controversial statements from his speeches to deliberately make it appear that he was responsible for the summary killings, when in fact, the police were advised to do so “only if your life is in danger.” 

Kaufman cited several speeches that the prosecution presented as their evidence on Tuesday to bolster their case against the former leader. One of which was the speech where Duterte assumed responsibility for the killing deeds of his subordinates in the police, but ruled out the part where he states that they will only shoot “if there’s no peaceful method of doing it.”

Another glaring example, he mentioned, was a presidential speech on 17 August 2016—Duterte’s early days in office—where he explicitly states that law enforcement groups could only resort to shooting when their lives were put at stake during anti-drug operations. 

“But if you do your duty, don’t worry about cases. I will protect you, believe me. Just do it right. We have our training, that you can only kill, if your life is in danger. And you are there performing the duty of a law enforcer,” Kaufman said, quoting Duterte. 

“That’s why I will protect them. And if there’s somebody who will go to jail it’s me. I will assume full, legal responsibility,” the speech added. 

Prosecutor and trial lawyer Edward Jeremy presented a series of Duterte’s presidential speeches during the second day of the four-day pre-trial hearing on Tuesday. Duterte was not present in the courtroom after waiving his attendance.

“For as long as I’m president, nobody but nobody, no military man or police man will go to prison because they performed their duties well. I will be the one to go to jail. Just say that it’s [my] order,” Jeremy said, quoting a 20 September speech by Duterte delivered before military troops.

In the same speech, Duterte gave his blessing to the military to massacre criminals and drug dealers, with the assurance of giving them a pardon and a promotion. 

Media hit, too

Aside from the prosecution, Kaufman also took a swipe at the local media for alleged biased reporting.

“One thing that I’ve learned from the domestic media coverage of this case, it is [that] the journalists and their editors have a tendency to fixate on salacious elements of a person’s speeches while ignoring the interesting parts,” Kaufman lamented. 

The prosecution has cited several local articles as part of their evidence to charge Duterte with three counts of murder for crimes against humanity.

Kaufman also disputed alleged reports suggesting that they were mocking the deaths of the drug war victims, claiming that the defense “does not disrespect” the deceased, “nor does it make light of the loss of life.” 

Kaufman then criticized the prosecution anew for assuming that they would have an increased chance to win the case against the defense if they invoked a myriad of speeches implying Duterte’s alleged intent to kill alleged drug suspects.

“The prosecution has had the opportunity to show you a selection of these speeches and seems to believe that the more they show, the greater the chances of convincing your honors to confirm the charges,” he argued. 

“Relying on prosecution’s speeches as a means of proving criminal intent is impossible,” he continued.

No direct orders from Digong

Furthermore, Kaufman asserted that the prosecution has failed to establish a “causal nexus,” or a direct or logical connection, where it can prove that Duterte personally instructed a certain individual to “pull the trigger” among the 78 listed victims in the charges.

“That would have been the classical way to prove a causal link between stuff that came out of Rodrigo Duterte’s mouth and the deaths pertinent to the case,” Kaufman contended.

"There is no smoking gun in this case, and it is not for want of a desperate attempt to find one on the part of the prosecution with all their leading questions when they interviewed their criminal cooperating witnesses," he furthered.

Due to this, he told the judges of the Pre-Trial Chamber I that Duterte “should not remain in detention simply because the prosecution cannot make out a substantial ground to believe that he committed crimes against humanity.” 

Duterte, 80, is charged with three counts of murder for the killings of 78 individuals, including six children, allegedly suspected of drug dealings from 2013 to 2018, spanning his tenure as Davao mayor and as president. 

The actual death toll of Duterte’s war on drugs has been estimated to be as high as 30,000 by rights group, mostly from poor communities. The figures cover only his tenure as the country’s chief executive.

The alleged drug dealers were categorized into five levels, with Level 1, which includes street-level drug dealers, lower government officials, and police, being at the bottom. 

Heads of government departments, barangay chairmen, and sub-distributors fall under Level 2.

Meanwhile, high-value targets are classified as Level 3, along with senior government officials, members and executives of the judiciary, and members of law enforcement groups. 

The Level 4 category covers drug lords in local units and Chinese distributors, and couriers, while drug financers, wholesalers, and high-ranking PNP and AFP officials are placed in Level 5 or the top level.

Deputy Prosecutor Mame Mandiaye Niang said the number of killings under the crimes charged is merely “a fraction of the overall criminality” that resulted from the brutal killings of Duterte’s drug war.