The pending case of former President Rodrigo Duterte before the International Criminal Court (ICC) will not be significantly affected despite the disqualification of Prosecutor Karim Khan, who initiated and led the years-long probe into the ex-leader’s bloody war on drugs.
This is primarily because Khan had already “recused himself from several activities of the Office of the Prosecutor” as early as April and had allowed Deputy Prosecutor Mame Mandiaye Niang to take over Duterte’s case before he went on leave following allegations of sexual misconduct, according to ICC assistant to counsel Kristina Conti.
“He has turned over the prosecution of the case to Mandiaye Niang. So he has taken steps to ensure that there will be no contamination, no tainting of evidence if that would be the argument,” said Conti, also one of the lawyers of the families of the drug war victims, in an interview on Wednesday.
The decision won’t “directly impact the timeline” of the former president’s pre-trial, which has faced further delay due to the defense’s petition for an indefinite postponement, citing the 80-year-old Duterte’s advanced age.
Conti’s remarks came on the heels of the ICC Appeals Chamber’s decision disqualifying Khan from taking part in the prosecution of the former president, a copy of which was seen by Reuters. The decision has yet to be made public.
The ruling accusing Khan of a “conflict of interest” favors Duterte’s camp.
Duterte’s lawyer, Nicholas Kaufman, recalled that Khan, then a private lawyer, had handled a case of drug-related killings in the Philippines, similar to those raised against Duterte.
The defense argued that this violated Article 42(7) of the Rome Statute, the ICC’s founding treaty, which bars a prosecutor from taking part in any case where their impartiality could reasonably be questioned.
Khan, in response, petitioned the ICC to reject the plea, asserting that there were “no grounds” to disqualify him.
Moreover, the prosecutor claimed that he was not directly involved in the previous probe since the submissions were reviewed by a team of lawyers headed by a deputy prosecutor, not Khan himself.
Conti, however, believes Khan’s disqualification will have “minimal impact on the prosecution” of the case, noting that Deputy Prosecutor Mandiaye Niang has been overseeing the proceedings since May to ensure that they continue without disruption.
“Everything will be based on evidence; the evidence doesn’t depend on Karim Khan,” she pointed out.
In 2021, Khan succeeded then chief prosecutor Fatou Bensouda who launched the preliminary probe into the drug war killings in the Philippines in February 2018, merely two years into Duterte’s presidency.
The investigation, however, was met with strong objections from the Philippines and was deferred after two months at Duterte’s request.
In January 2023, it was ordered resumed notwithstanding the Philippines’ appeal. Since then, it was Khan who had spearheaded the drug war probe until Duterte was arrested in Manila on 11 March.
Duterte is facing three counts of murder for crimes against humanity in connection with his brutal war on drugs, which saw more than 6,000 deaths based on government data, though rights watchdogs estimated the death toll exceeded 30,000.