The Newsmaker: Nicholas Kaufman, Duterte lead counsel at ICC

Metro Manila, Philippines – The defense team of former President Rodrigo Duterte is confident of securing a decision against a full-blown trial at the International Criminal Court (ICC).

In an email interview with The Newsmaker, Kaufman shared an overview of the direction of the defense team – from a possible interim release application, questioning the court jurisdiction, and potential hurdles ahead of the Sept. 23 confirmation of charges hearing.

Here’s the full transcript of the NewsWatch Plus interview with Kaufman:

NEWSWATCH PLUS: First, without compromising your legal strategy, what do you believe is the strongest argument that could lead to former President Rodrigo Duterte’s acquittal?

KAUFMAN: When two judges of the ICC Appeals Chamber have already ruled that the Court cannot exercise its jurisdiction in light of the Philippines’ notification of withdrawal from the Rome Statute and the failure to seek the authorization of an investigation within the one-year period set out in Article 127 of the Rome Statute, it stands to reason that this will be a strong argument. Attorney Joel Butuyan, his victim representative colleagues and the Prosecution might be confident of rebutting this argument but, ultimately, the Pre-Trial Chamber will decide the issue – independently of any arguments presented in the public domain.

NEWSWATCH PLUS: Mr. Kaufman, with the confirmation of charges hearing six months away, what developments could occur before September 23 beyond preparing your case against the prosecution? There are discussions about a potential temporary release – can you confirm if this is an option?

KAUFMAN: Interim release is a right. An application for interim release is par for the course at the International Criminal Court. Interim release is also based on the willingness of a State Party to receive a suspect. In our case, the former President will make an application for interim release at the appropriate time and when the pre-conditions and guarantees for such have materialised.

NEWSWATCH PLUS: Given your experience handling ICC cases, is there anything unique about this case? Duterte is known as a lawyer. Does that provide any advantage in his defense? How does he perceive the ICC proceedings, and how would you describe him as a client?

KAUFMAN: For me the unique aspect of this case is, indeed, the fact that I am representing a former prosecutor. In fact, we share that previous employment attribute in common. It is this former work which enables me now, as defence counsel, to predict the strategy to be adopted by the Prosecution. I would not like to go into my interactions with former President Duterte because that is covered by client-attorney privilege. Notwithstanding, as a client, he displays a modesty and calmness which is very distinct from some of the personality traits that I have encountered – not just at the international criminal tribunals but in the course of my domestic criminal workload.

NEWSWATCH PLUS: Duterte’s children have challenged the legality of their father’s arrest before the Philippine Supreme Court. Does the ICC take local court decisions into account in its deliberations? Were his rights violated under local and international law?

KAUFMAN: His rights under the constitution and under the laws of the Philippines were, in my opinion, grievously abused. The effect that such an abuse will have on the proceedings will be litigated in court and in the appropriate framework in due course.

NEWSWATCH PLUS: Based on the evidence and arguments presented so far, how confident are you that this case will not proceed to a full trial? Historically, has the ICC dismissed cases early, and what were the reasons? If a trial proceeds, how long do ICC proceedings typically last?

KAUFMAN: I am confident for various reasons that this case will not go to a full trial. I am not at liberty to disclose my reasoning. Furthermore, I do not wish to prejudice my client and to incur the annoyance of the judges by litigating his case in the media.

NEWSWATCH PLUS: Duterte recently turned 80 years old. Does the ICC consider advanced age or health issues in determining leniency or alternative legal outcomes?

KAUFMAN: Age, frailty and ill-health are always factors considered in an application for interim release. I am not revealing anything particularly novel.

NEWSWATCH PLUS: What potential hurdles do you foresee in handling this case?

KAUFMAN: The only potential hurdle that I foresee is the political manipulation of the arguments presented during the litigation. One argument, frequently and robotically raised to object to interim release, is the supposed existence of a huge support network which may be exploited either to facilitate flight or intimidation. The former President enjoys huge popular support. There will be participation in these proceedings by victims – principally, persons who accuse the former President of being responsible for the murder of their family members. Even though the Defence vigorously disputes responsibility, the process at the ICC requires that the relatives of these people have the opportunity to express their views without fear. The former President’s family have already called for the public to respect the judicial process. Correspondingly, we hope that the people making the accusations against the former President will understand that he too is entitled to certain rights of which the most important are the right to interim release, the right to return to his homeland and, the presumption of innocence. At this point in time the former President is simply a proud Filipino not guilty of anything.

Duterte was “surrendered” to ICC custody “in accordance with an arrest warrant issued by Pre-Trial Chamber I for charges of murder as a crime against humanity.”The ICC probe includes Duterte’s alleged involvement in extrajudicial killings through the so-called Davao Death Squad, which began during his tenure as Davao City mayor and continued in the early years of his presidency.