Defense: Direct link not established

The contending legal camps in the International Criminal Court (ICC) proceedings each expressed confidence the judges would rule in their favor within 60 days, but the defense team held that the evidence presented was selective and thus weak, not credible, and failed to establish former President Rodrigo Duterte’s direct link to the alleged extrajudicial killings (EJK).

The ICC prosecutors and Duterte’s lawyer were locked in a tense legal showdown on Friday, the last day of the pre-trial hearing, over whether the three murder charges against the ex-leader can be confirmed to go to trial.

Nicholas Kaufman, Duterte’s lead counsel, argued that the prosecution heavily relied on insider testimonies, most of which were supposedly uncorroborated and driven by personal motives. He also slammed the prosecution for the “selective reading of police reports and their dubious and tenuous linkage” to Duterte.

Kaufman disputed the claim by prosecution lawyer Edward Jeremy earlier this week that police reports were “repeatedly falsified” to legitimize the operations as acts of self-defense or to justify the killing of drug suspects during police anti-drug ops.

“There is zero proof, none, that the only existing contemporaneous documentary evidence is fabricated or unreliable. No proof whatsoever of this supposed falsification in the entire case record,” Kaufman told the judges of the Pre-Trial Chamber I (PTC-I).

“On this point, let us just clarify a basic principle — that a state document, with the appropriate stamps and signatures and what have you, is prima facie reliable, or in other words, it carries a presumption of administrative regularity,” he said.

The prosecution senior trial lawyer, however, contended that “it’s not a surprise that the police reports don’t reflect” the killings, given that the police was then headed by now Senator Bato dela Rosa — one of the co-perpetrators — an appointee closely associated with Duterte as early as his stint in Davao as mayor.

The defense further argued that the prosecution had no evidence to directly implicate Duterte in the killings of Albuera mayor Rolando Espinosa and Ozamiz mayor Reynaldo Parojinog, who were considered “high-value targets” (HVT).

The alleged drug dealers were categorized into five levels, with HVTs falling under Level 3, along with senior government officials, members and executives of the judiciary, and members of law enforcement groups.

Espinosa was shot dead inside his jail cell, allegedly after firing at police officers in November 2016, while Parojinog and several members of his family were killed at their compound in a predawn raid in July 2017.

“The prosecution’s case is largely premised on a witness who claimed to have heard but admitted not to have seen anything. Thus, there is nothing in the prosecution’s evidence to contradict the alternative theory proposed for this incident, which is that there was a firefight between the victims and the officers in a police station, later a sub-provincial jail,” Kaufman said, referring to Espinosa’s killing.

In fact, he claimed, the evidence of the prosecution clears Duterte of responsibility for Espinosa’s killing, pointing to a statement cited by the prosecution that Duterte gave Espinosa a 24-hour ultimatum to surrender.

Kaufman also contended that HVT is not “code for an instruction to kill or a witch hunt.” Rather, he said, the list of individuals considered as HVT was used as a “prioritization tool” in anti-drug operations applied across the country and “does not imply selection for murder.”

Causal nexus missing

During the presentation of the defense’s arguments, Kaufman said the prosecution was unable to show a “causal nexus” between Duterte’s statements and the 49 incidents included in the case. He maintained that there was no evidence that Duterte gave a direct order to kill any specific individual.

“What the prosecution cannot show you is the connecting line between Duterte at the top and the next level down comprising the so-called co-perpetrators,” Kaufman told the court.

He said that none of the witnesses connected to the incidents would testify that they received a direct instruction from Duterte to carry out a killing.

“Not one witness relevant to any of the 49 incidents with which Mr. Rodrigo Duterte is charged will testify that he received a direct order from the former president to go out and kill someone,” Kaufman said.

The defense also challenged the weight of the witness testimonies cited by the prosecutors, particularly statements that witnesses believed killings were expected of them based on Duterte’s pronouncements. Kaufman described such accounts as subjective interpretations rather than proof of an explicit directive.