Du30 lawyer exits, makes last bid for client’s release
Nicholas Kaufman, Rodrigo Duterte’s lawyer who was unable to prevent his trial for crimes against humanity in his war on drugs, has again asked the International Criminal Court (ICC) to grant temporary liberty to the former president—his last move before withdrawing as lead counsel.
In “observations” of the condition of the 81-year-old Duterte in his detention cell in The Hague, the Netherlands, Kaufman said in his May 8 submission to the ICC’s Trial Chamber III (TC III) that the ex-president had episodes of losing his balance and experiencing short-term memory loss.
“According to the ICC medical officer, Mr Duterte’s round-the-clock surveillance is warranted on account of him being ‘an elderly detained person, with increased fall risk due to age and several chronic physical ailments,’” read part of his filing.
Still influential in PH
Kaufman noted that this was “new information” that was an “essential clarification and presents a change in circumstances” since September last year when their request for Duterte’s interim release was rejected by the Pre-Trial Chamber I (PTC I).
“An individual whose short-term memory is impacted is not capable of remembering sufficient details for the purpose of instructing others to tamper with witnesses or to pervert the course of justice,” Kaufman said.
But the prosecution and the legal representatives of victims of Duterte’s drug war continued to oppose his release, arguing that his refusal to recognize the jurisdiction of the ICC over his case all the more justified his detention in The Hague, especially as he was now headed to trial.
Among the major objections they presented against the first defense request for Duterte’s temporary liberty was that he remained very influential and had the means and supporters back in the Philippines who could be used to intimidate or harass witnesses against him in the ICC case.
On April 22, the ICC Appeals Chamber ruled that the international tribunal had jurisdiction over Duterte’s case, which his lawyers had challenged from the beginning.
On April 23, the PTC I announced that it found substantial grounds to proceed with the trial of Duterte, who is charged with three counts of murder and attempted murder as crimes against humanity in his war on drugs.
The period covered was from November 2011 to March 2019, when the Philippines’ withdrawal from the Rome Statute—the treaty that established the ICC—took effect.
Officially, the Duterte government acknowledged that over 6,000 people were killed in state antinarcotics operations.
Human rights groups say the victims were overwhelmingly poor Filipinos who were suspected drug users and small-time pushers. They said the number of drug war deaths could be as many as 30,000.
In January this year, the PTC I affirmed its decision refusing to allow temporary liberty for Duterte after conducting the mandatory review of his situation every 120 days.
But now that Duterte’s case has been set for trial, it will be the TC III that will take over the mandated detention review.
Quoting from a report by an unidentified occupational therapist who checked on Duterte on March 17, Kaufman said that Duterte “falls at various times; [but that] there does not appear to be a clear pattern (e.g. not at the same time of the day).”
Another attending clinician observed on March 24 that Duterte’s “forgetfulness becomes apparent.”
“Shortly after discussing his daughter, he mentions her again, assuming that the clinician does not yet know who his daughter is. Additionally, he does not know today’s date and guesses July or September for the month,” the clinician reported, according to Kaufman.
One-year service ends
The British-Israeli lawyer argued that the latest medical reports were crucial to the risks previously found by the PTC I that Duterte poses to the ongoing investigation or the proceedings.
In a separate May 8 “urgent” filing, Kaufman asked TC III to allow him to leave the defense team as lead counsel as his one-year legal service to Duterte ended on March 31.
He said Duterte was going to appoint a new lead counsel, whose name was redacted in the filing, and restructure his legal team.
Kaufman told the Inquirer that Duterte was set to meet on Saturday the new lead counsel, who was handpicked by the former president’s common-law partner Honeylet Avanceña and their daughter Veronica “Kitty” Duterte.
He said Kitty and Avanceña were now responsible for legal matters concerning Duterte, including funding and the choice of lawyers.
“Should the former president signify his approval of this appointment to Registry staff on Monday morning, then I anticipate that the judges of the trial chamber will render a decision approving my withdrawal on the same or following day,” he said.
Kaufman said the new lawyer was not a Filipino, and that he knew him well.
“I have of course informed him that I will provide him with any assistance that he should require when taking over. That is my duty and, given that I know the new counsel well, it will be highly efficient,” he said.
Jacobs out, too
The TC III has approved the withdrawal of Kaufman’s associate counsel, French lawyer Dov Jacobs, who said he was leaving after Duterte decided to restructure the defense team.
Also on May 8, the prosecution filed a nine-page opposition to the new attempt to seek temporary liberty for Duterte, urging TC III to keep him in detention to ensure the safety of witnesses as it was collecting and disclosing additional materials from new witnesses.
“This process is dependent on the prosecution’s and the Registry’s ability to protect witnesses, which militates in favour of Mr. Duterte’s continued detention,” it said.
It also cited continued denial of ICC jurisdiction over Duterte by his daughter, Vice President Sara Duterte, and former presidential spokesperson Salvador Panelo. Their denial undermines the legitimacy of the court, the prosecution said.
This was also pointed out by the common legal representatives of the victims (CLRVs). According to them, Duterte is a flight risk this must not be underestimated ahead of his trial.
“Interim release would be inappropriate in circumstances where an accused openly repudiates the Court as a proper and legitimate judicial forum,” they said.
Should not cause delay
ICC-accredited lawyer Kristina Conti, who has been assisting some of the drug war victims, said Duterte had the right to reorganize his defense team.
“But victims want to be assured that the change will not result in any delay. A new lawyer does not automatically reset time or give rise to new remedies available to the accused,” Conti said in a Facebook post on Saturday.
For Mamamayang Liberal Rep. Leila de Lima, a staunch critic of Duterte, Kaufman’s planned exit was a “bitter lesson for ICC lawyers defending enemies of mankind.”
She said in a statement on Saturday that there is “no magic in legal practice” that could make evidence disappear.
“When the evidence is strong, the only viable legal strategy is procedural attack and public appeal,” she said. “Unfortunately for the defense, all the professional and experienced ICC judges are not susceptible to both, and the defense lawyers know this. They also know there is no magical legal incantation that can change this. It is therefore highly doubtful that Duterte’s new lawyer will perform any differently from Kaufman.”
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