The defense of former President Rodrigo Duterte pushed back Thursday against the imputations of International Criminal Court (ICC) prosecutors that he ordered police to kill alleged drug dealers regardless of whether they resisted arrest, asserting that he encouraged the use of lethal force only as a last resort.

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

Kaufman cited several speeches presented by the prosecution on Tuesday to bolster its case against the former leader, averring that these were taken out of context.

In one instance, the prosecution claimed Duterte assumed responsibility for the killings committed by his subordinates in the police.

But Kaufman pointed to a portion he said was conveniently left out, where Duterte stated that police could only shoot “if there’s no peaceful method of doing it” in arresting criminals.

Another example cited was a presidential speech on 17 August 2016 — Duterte’s early days in office — in which he explicitly stated that law enforcement groups could only resort to shooting when their lives were at risk during anti-drug operations.

‘Only when in danger’

“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 speeches during the second day of the four-day pretrial 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 policeman 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, according to prosecutors, purportedly gave his blessing to the military to massacre criminals and drug dealers, assuring them of a pardon and promotion.

Media hit, too

Aside from the prosecution, Kaufman also took a swipe at the local media for what he described as biased reporting.

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

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

Kaufman also disputed reports suggesting the defense was mocking the deaths of drug war victims, saying it “does not disrespect” the deceased, “nor does it make light of the loss of life.”

He again criticized the prosecution for assuming it would have a greater chance of winning the case by invoking numerous speeches implying Duterte’s alleged intent to kill 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 said.

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

No direct orders

Kaufman further asserted that the prosecution failed to establish a “causal nexus,” or direct logical connection, proving Duterte personally instructed a specific individual to “pull the trigger” among the 78 victims listed in the charges.

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

“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 cooperating witnesses,” he added.

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

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

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

Levels

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

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

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

Level 4 covers local drug lords, Chinese distributors and couriers, while drug financiers, wholesalers, and high-ranking Philippine National Police and Armed Forces of the Philippines officials are placed in Level 5, the highest level.

Deputy Prosecutor Mame Mandiaye Niang said the number of killings cited in the charges represents only “a fraction of the overall criminality” resulting from Duterte’s drug war.