Former president Rodrigo Duterte’s lead lawyer said there was a “compelling” argument to throw out the International Criminal Court (ICC) case against his client even before it comes to trial.
On Sunday, Nicholas Kaufman said he hoped to stop the case before the ICC confirms the charges against Duterte by arguing the court cannot exercise its jurisdiction.
Kaufman pointed out the Philippines’ withdrawal from the court had become effective well before an investigation was authorized.
Duterte, 80, faces a charge of crimes against humanity for murder over his “war on drugs” that claimed the lives of thousands of mostly poor men, often without proof they were linked to drugs.
British-Israeli lawyer Kaufman, 56, said: “Coming back to the jurisdictional point, obviously you don’t need to be the dean of a law faculty to realize that that’s going to be a huge issue at pre-trial.”
“I think that the jurisdictional argument is compelling as defense counsel. I believe that it should succeed, and I would be hugely disappointed if it doesn’t succeed,” he added.
“We hope to persuade the judges pre-trial that it (the court) cannot exercise its jurisdiction over the case. There won’t be a confirmation-of-charges hearing if the judges rule in our favor,” he noted.
Kaufman also called attention to the circumstances behind the former president’s arrest and rapid handover to the ICC in The Hague.
“I view it as a kidnapping, nothing more or less. It’s an extrajudicial rendition. He was given no due process, just slung over to the Hague,” Kaufman told AFP. “This was in complete contravention of Philippine law.”
Kaufman, whose previous clients at ICC include former Congolese rebel leader Jean-Pierre Bemba and Aisha Kadhafi, daughter of the deceased Libyan dictator, said he was visiting his latest client virtually every day in the ICC detention center.
Duterte was “adjusting to the reality of prison life. That’s not easy for anyone. However, the former president was in “good spirits,” his attorney noted.
“My only fear is that this court is starved of cases at the present moment and might be loath to let a case like that go, to slip through its hands,” Kaufman added.
A confirmation of charges hearing, where prosecutors and defense first lay out their evidence, is currently scheduled for September 23.
The issue of jurisdiction is key in this case as the Philippines withdrew from the ICC in 2019.
However, when the court issued its arrest warrant for Duterte, it noted that the alleged crimes took place while the country was still an ICC member.
“As the alleged conduct has taken place between 1 November 2011 and 16 March 2019 on the territory of the Philippines, it falls within the Court’s jurisdiction,” the ICC said.
The ICC chief prosecutor’s application for his arrest said Duterte’s alleged crimes were “part of a widespread and systematic attack directed against the civilian population” in the Philippines.
The families of victims of his war on drugs see the ICC case as a long-awaited chance for justice.
Meanwhile, the Philippine government sought to debunk claims that Duterte’s arrest was a political move and that the decision to surrender him to the ICC was an act of “persecution.”
According to Foreign Affairs Undersecretary Eduardo De Vega, the move complied with the country’s international obligations and an Interpol request but does not preempt Duterte’s right to defend himself in the ICC.
“Our surrender of the [former] president did not mean that we judged him,” he said on Monday.
“We’re complying with our international obligations because there was an Interpol request. We did not say he’s guilty. He will have a chance to defend himself in the ICC,” he added.
De Vega assured that the government has been assisting Duterte and his family.