The camp representing victims of the bloody drug war under then-President Rodrigo Duterte said it has no objections if the International Criminal Court (ICC) disqualifies the lead prosecutor who investigated the extrajudicial killings, in line with the former leader’s petition.
“In the case of the Philippines, even if Khan is removed, there won’t be such serious [ramifications],” human rights lawyer and ICC assistant to counsel Kristina Conti said in an interview Sunday.
Conti made the statement following a petition by Duterte’s lead counsel, Nicholas Kaufman, to disqualify ICC chief prosecutor Karim Khan, citing concerns over impartiality.
Kaufman told the ICC that Khan had previously been involved in a similar case, where he represented drug war victims in a private capacity. The exact timing of this involvement remains unclear, as many details in the defense’s submission were heavily redacted.
The defense argued that Khan must be disqualified, claiming he violated Article 42(7) of the Rome Statute, the ICC’s founding treaty, which prohibits a prosecutor from participating in a case where his or her impartiality might reasonably be doubted.
The provision allows disqualification if the prosecutor has been previously involved in the same case or a related one involving the same person under investigation or prosecution.
Conti noted that Khan has been on leave due to allegations of sexual misconduct, but that this would have little impact on the case against Duterte since Deputy Prosecutor Mame Mandiaye has already taken over to ensure proceedings continue.
She also acknowledged the points raised by Kaufman, while saying she has no knowledge of Khan’s prior involvement in an identical case.
Kaufman told the ICC that Khan’s failure to disclose this “blatant conflict of interest” from the start of the probe until the ICC Pre-Trial Chamber issued a warrant for Duterte’s arrest on 6 March raises serious concerns about his impartiality.
“Mr. Khan continued to supervise the Philippines’ investigation unabated until the very eve of the submission of an application for the arrest of Mr. Duterte. As far as the defence is aware, Mr. Khan did not notify either the Pre-Trial Chamber or the Appeals Chamber of his former involvement in [REDACTED],” the defense submission dated 7 August read.
Khan assumed his post in 2021, succeeding then-chief prosecutor Fatou Bensouda, who began the preliminary probe into the drug-war killings as early as February 2018, nearly two years into Duterte’s presidency.
It took more than two months before the investigation officially began on 15 September 2021 under Khan’s leadership. Two months later, the probe was deferred at Duterte’s request.
ICC proceedings differ significantly from those in other courts. One unique feature is that victims play an independent and distinct role from the prosecution. They are represented by a legal representative appointed by the ICC, whose duties differ from those of the prosecution, where victims are usually involved as complainants or witnesses.
Victims can also participate in the proceedings and present their views, while the prosecution maintains its own witnesses, which may include state officials.
Earlier, Conti said the ICC may present “insider witnesses” against Duterte, including police officers and other law enforcers, noting that this is a common practice within the tribunal.
The 80-year-old Duterte has been detained at Scheveningen Prison in The Hague, Netherlands, since his arrest in March in Manila, and will remain there while awaiting confirmation of charges on 23 September.
He is facing a single count of crimes against humanity over killings recorded between 1 November 2011 and 16 March 2019, covering his time as mayor of Davao City and as president.
The killings included those carried out by the Davao Death Squad, a notorious group formerly composed of Davao-based police, including Senator Ronald de la Rosa, as Duterte has previously claimed.
De la Rosa and retired police chief Oscar Albayalde are being linked as co-perpetrators with Duterte for spearheading the brutal drug war, which, based on government data, left over 6,000 dead.
That figure covers only Duterte’s presidency, but rights watchdogs estimate the actual death toll could exceed 30,000, most from low-income communities.
De la Rosa served as Duterte’s PNP chief from 2016 to mid-2018, after which Albayalde allegedly continued the drug war’s implementation.