No direct order from Duterte to kill drug suspects - Kaufman

Former President Rodrigo Duterte did not issue specific orders to kill drug suspects in the course of his campaign to dismantle the illegal drug trade, his lawyer Nicholas Kaufman told the International Criminal Court (ICC) on Thursday.

Duterte faces charges of crimes against humanity in relation to killings in his anti-narcotics campaign when he was Davao City mayor and president.

"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 criminal cooperating witnesses," Kaufman told the judges of the ICC Pre-Trial Chamber I on the third day of the confirmation of charges hearing.

"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," he added.

Kaufman also slammed the allegation of the prosecution that Duterte "launched an attack on the entire population of the Philippines pursuant to a policy to neutralize persons perceived or alleged to be engaged in crime."

"Such a suggestion is not just incomprehensible; it is quite bizarre," he said.

READ: DAY IN COURT: ICC Hearings on the Charges vs. Duterte

No common plan

Furthermore, Kaufman said there was no mutually agreed common plan between Duterte and his alleged co-perpetrators.

He said the prosecution only selected a number of individuals working alongside Duterte who made “similarly offensive comments and called them co-perpetrators.”

“Instead of seeking evidence which might shed light on the interactions of these individuals between one and another and construing a criminal conspiracy therefrom… The prosecution has taken its preconceived and predetermined premise of a criminal plan and forcibly superimposed it on these individuals,” he said.

Kaufman added that based on the statement of a prosecution witness, a self-confessed murderer, the common plan was a “killing frenzy of the political opposition.” 

“’Every time somebody was at fault against the government of Rodrigo Duterte, we didn’t bother to send them to prison, we would just kill them,’” Kaufman said, quoting the witness.

The defense lawyer said there are no indicators of an “mutual meeting of minds” between the alleged co-perpetrators “devising a communality of purpose or an agreement to act in an illegal fashion.”

“Of course, the prosecution has shown its pictures of the alleged co-perpetrators, butchering comments similar to those issuing from Rodrigo Duterte. But this does not indicate a meeting of minds,” he said.

Kaufman then argued that “narrative venting... does not fervor the criminal objective.”

Government records showed that around 6,200 drug suspects were killed during the Duterte administration, while human rights organizations say that numbers reach up to 30,000 due to unreported related slays.

Kaufman argued that the deaths in anti-drug operations were minimal compared to the number of arrests and operations conducted by state forces.

He recalled that the ICC Prosecution cited data from the Philippine Drug Enforcement Agency (PDEA) that 5,281 drug personalities died in anti-drug operations in the first two and a half years of Duterte’s presidency.

“She [the prosecutor] neglected to contextualize these numbers by reference to other parts of the same report, which show that in comparison to the number of arrests and operations conducted, the number of deaths is minimal,” he said.

Kaufman presented a chart showing that from July 2016 to February 2019, around 97% of drug personalities were arrested in anti-drug operations, while 3% were deaths.

“If I may just conclude, the only thing that is widespread here, or rather spread wide, is the utility of the prosecution’s statistics,” he said.

According to Kaufman, a total of 375 police officers were also dismissed following 1,900 drug-related investigations against law enforcement officers at the height of the war on drugs.

Self-defense

Kaufman said that the acts of murder alleged against Duterte must constitute a widespread or systematic attack and must be directed against a civilian population.

“Let us ask ourselves whether the alleged attack in this case was directed at the population as a whole or at a subjectively defined subgroup of perceived or alleged criminal offenders,” he said.

“As I mentioned in my opening statement, prosecution knows it is not enough simply to assert that Rodrigo Duterte said outrageous things and deaths occurred,” he added.

In arguing the lack of evidence to confirm the charges against Duterte, Kaufman cited speeches where the former president told cops to kill only in self-defense.

Kaufman also cited an interview with Duterte, where he was asked how he would ensure that he did not violate human rights.

In response, Duterte said that they would see to it that “the police operational procedures are being followed.”

The lawyer also cited a memorandum circular, which reminds state forces to “strictly observe the rights of persons.”

He said this was reiterated in another circular, which instructs units on how to perform their responsibilities in the case of armed confrontation.

Kaufman also cited an instance where the individual was interviewed and said that shooting was justified because the individuals being arrested were fighting back.

During their presentation, ICC Prosecutor and Senior Trial Lawyer Julian Nicholls argued that Duterte tried to build a “veneer of plausible deniability” when he made his remarks on self-defense.

“Those references on self-defense appear throughout Mr. Duterte’s speeches. They’re all over the place. We don’t run away from that. We don’t shy away from that. That’s part of our theory,” he said.

“The defense will say, and they already have, that we’ve cherry-picked the statements we showed you. But we have not,” he added.

Duterte pulled the Philippines out of the Hague-based ICC's Rome Statute in 2018, with the withdrawal taking effect in 2019, after the tribunal began a preliminary probe into his administration's drug war.

But a Supreme Court (SC) ruling in 2021 said that the Philippines has the obligation to cooperate with the ICC despite its withdrawal from the Rome Statute, noting that the exit does not affect criminal proceedings pertaining to acts that occurred when a country was still a state party.  

"If Rodrigo Duterte was so shamelessly brazen as to broadcast his murderous intent in public ever since he was the mayor of Davao, why did it take the ICC Prosecution almost four years to open an investigation after Rodrigo Duterte pulled his country out of the International Criminal Court?" Kaufman said.

"Why did the ICC Prosecution not just save itself all the hassle of its jurisdictional problem—the fundamental issue that still plagues it and remains to be resolved by the Appeals Chamber. Why did the Prosecution not seek to initiate an official investigation within the one-year withdrawal period?"

Before starting his presentation, Kaufman said that the defense team does not disrespect the soul of any deceased individual or make light of the loss of life.

"Any criticism made by us today will not be leveled at the loved ones of those such as the tearful relative who I saw in the gallery here on Tuesday,” he said.

“The defense's criticism will be confined only to the prosecution's document containing the charges that governs these proceedings, not what has been reported elsewhere in the media,” he added. —VBL/JMA, GMA Integrated News