The camp of former president Rodrigo Duterte has withdrawn its earlier request to appeal a decision by the International Criminal Court Pre-Trial Chamber I that upheld the appointment of three Filipino external lawyers representing victims of his bloody drug war on the alleged grounds of “conflict of interest.”

In a submission dated 16 March, Duterte’s lead counsel, Nicholas Kaufman, notified the court that they were withdrawing their motion challenging the PTC-I’s 20 February ruling. 

The appeal was filed before the chamber could render a new decision on the defense’s pending request.

“The defence notes that the Pre-Trial Chamber has not yet ruled on ICC-01/21-01/25-392 [decision]. The present notification is without prejudice to any further recourse available to the defence in order to raise the issue of what it perceives to be an impediment to representation on the part of the common legal representatives for victims (CLRV),” Kaufman said in the submission. 

The 20 February ruling by the PTC-I stemmed from the defense’s allegations that the appointment of lawyers Joel Butuyan, Gilbert Andres, and Nicolene Arcaina as part of the CLRV was “an impediment to representation” and tantamount to a conflict of interest.

Recall that Kaufman petitioned the court to revoke the lawyers’ appointment, just barely two weeks before the defense faced the judges of the PTC-I for the confirmation of charges hearing of Duterte on 23 to 27 February.

Kaufman argued that Butuyan and Andres deliberately approved the appointment of Arcaina in the external legal team, despite their prior professional connection with her, which he said could affect the fairness of the proceedings, in alleged violation of Articles 7(4) and 12 of the ICC’s Code of Professional Conduct for Counsel.

He alleged that Arcainia, the current case manager, worked closely with Butuyan and Andres as a fellow and staff lawyer at CenterLaw Philippines from March 2019 to December 2023, who might have previously worked with ICC prosecutors during their investigation into the drug war in the Philippines. 

The British-Israeli lawyer further pointed out that Arcania’s current role is structurally incompatible and that she might have obtained sensitive information from the prosecution.

However, the PTC-I did not buy the defense’s assertions, dismissing them as mere “speculative and hypothetical.” Moreover, it said that Kaufman failed to clearly state the legal basis for their petition, urging him to “place substance over stylistic and theatrical formulation” in their arguments.

In addition, the chamber stressed that the defense assumption of a “conflict of interest” was misplaced because Arcania is not a lawyer of the victims, but a case manager.

It ruled that differences in roles, mandates, or obligations between two entities do not, per se, indicate a conflict of interest.

“The defence’s arguments misconceive such distinctions and attempt to raise an issue of impediment to representation under article 12 of the Code against a team member of the CLRV who does not act as counsel within the meaning of that article,” the 20 February ruling reads.

“In addition, the Chamber considers that the defence does not substantiate how Mr. Butuyan and Mr. Andres’s awareness of Ms. Arcaina’s [redacted], if at all, would represent an impediment to their representation under [redacted], as it fails to argue how Ms. Arcaina, as case manager of the CLRV team, could fall within the category of [redacted] as defined under article 2(2) of the Code,” it added.

The PTC-I concluded the long-delayed pre-trial hearing of Duterte on 28 February, and is likely to hand down its decision on whether or not the ex-leader’s crimes against humanity case on murder should proceed to a full-blown trial in late April.