Unable to oust ICC judges, Du30 team now targets prosecutor
After failing to oust two judges from the pretrial chamber, the camp of Rodrigo Duterte is now requesting the International Criminal Court (ICC) to disqualify the prosecutor who took over the late stage of the investigation into the drug war and sought for the former president’s arrest in The Hague, the Netherlands.
Nicholas Kaufman, Duterte’s lead defense lawyer, said chief ICC Prosecutor Karim Khan committed a “grievous conflict of interest” when he failed to disclose his role as a private counsel for the victims before he assumed the top post at the Office of the Prosecutor.
This, Kaufman pointed out, was in violation of Rule 34 (1) of the ICC Rules and Procedures, which states that the involvement in a private capacity in any legal proceedings can be ground for the disqualification of a prosecutor, deputy prosecutor, or a judge. The rule further states that such roles before taking office in the international tribunal “could adversely affect the required impartiality of the person concerned.”
Conflict of interest
“Mr. Khan abused the criminal process to push forward an investigation in which he had an undeclared personal interest, or at the very least an undeclared personal obligation from which he had not sought to release himself,” Kaufman said in the 14-page request before the three-member Appeals Chamber on Aug. 7.
Making up the Appeals Chamber are Judges Gocha Lordkipanidze, Luz del Carmen Ibáñez Carranza and Solomy Balungi Bossa.
The British-Israeli lawyer stressed: “When he assumed oversight of the investigation into Mr. Duterte, Mr. Khan knew that he had [redacted] and had thoroughly convinced himself that Mr. Duterte must be prosecuted.”
He also called out Khan, who succeeded former chief Prosecutor Fatou Bensouda, for supposedly “exploiting the information” he got as one of the legal representatives of the drug war victims.
“Mr. Khan relied on information obtained while defending the independent interests of the victims to support actions falling under an entirely separate mandate—one that also carries the obligation to disclose exculpatory evidence,” Kaufman said. “This conflation of roles, leading to a blatant conflict of interest, is precisely what Rule 34 (1)(b) seeks to prevent.”
Jab at integrity
Khan took a voluntary leave starting May 16 pending the outcome of the probe into the allegations of his sexual misconduct in the workplace.
Should the top ICC prosecutor be cleared, Kaufman wants him to stay off the case against Duterte, who is accused of murder as a crime against humanity for being an alleged perpetrator in the brutal war on drugs.
The Duterte camp used these accusations against Khan to question his integrity, saying: “Mr. Khan’s current self-imposed leave of absence to deal with allegations … rebuts the presumption to which he would otherwise be entitled; namely, that he is of ‘high moral’ character and that his notifications should be taken as gospel.”
The latest move by the defense followed the July 22 request it made to the Pre-Trial Chamber (PTC) I to defer its decision regarding the challenge on ICC jurisdiction over the Duterte case. Kaufman cited a “tardy supply of [redacted] information” and an unresolved “crucial issue” that was also withheld in the filing.
A day after, however, the PTC ruled in favor of the Duterte camp to delay the ruling on the request for interim release, noting that it was “appropriate” to postpone deciding on the issue until the defense is able to gather all pertinent information that the court needs to be able to come up with a well-informed ruling.
Kaufman made the request on July 18 and claimed that the defense had been “slow-walked and stymied” for two months and that they were able to secure some “results” only “a few days ago.”
Crucial information
On the same day, Kaufman also hinted about receiving crucial information from an undisclosed “professional” whose findings could hit a snag in the schedule of confirmation of charges hearing slated to open on Sept. 23.
“For the sake of clarity, and in light of the newly received [redacted] information, the Defence formally notifies the (PTC) that it will raise the issue of [redacted] as a bar to the holding of a hearing on the confirmation of charges,” the defense said in the document.
