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MANILA, Philippines — In a tightly argued three-hour defense, former president Rodrigo Duterte's counsel challenged the prosecution's attempt to link him directly to the killings during the time he was Davao City mayor and president of the Philippines.
But before presenting his case, lead defense counsel Nicholas Kaufman opened Thursday's hearing, February 26, with an appeal to local media covering the International Criminal Court proceedings.
He said he hoped reports would make clear that the defense is not making light of the lives lost during the Duterte administration and has no intention of disrespecting the deceased. The arguments, he stressed, would focus solely on responding to the prosecution's charges against Duterte.
The former president faces three counts of crimes against humanity of murder and attempted murder, covering 48 incidents and 78 victims from 2013 to 2018.
'To kill for self-defense'
Similar to the prosecution's approach of spotlighting Duterte's inflammatory statements, the defense first argued by citing occasions when the former president specifically reminded law enforcement to use "lethal force" only for the purpose of self-defense.
Kaufman lifted quotes from Duterte's presidential speeches in August and November 2016, where he reminded the police to kill suspected criminals only if their own lives were in danger in enforcing the arrests.
The instances where Duterte had explicitly said he would have criminals killed and promoted the killing of suspected drug dealers were only "hyperbole" or exaggerated comments to "instill fear," as Kaufman put it.
Lack of 'causal nexus'
However, in arguing the prosecution's "common plan" theory falls short, Duterte's defense focused on what it described as the lack of direct evidence implicating the former president to any of the 49 incidents covered in the charges.
Kaufman said that for the prosecution to insist on Duterte's liability, it must establish documentary evidence, orders, commands that the former president had given to a specific individual who had been part of one of the 49 cases of alleged murders.
"That would have been the classical way to prove a causal link between stuff that came out of duterte’s mouth and the deaths pertinent to the case," he added.
Kaufman also asserted that no presidential order or organizational policy directing law enforcement to eliminate by means of killing suspected criminals and drug pushers could be found.
He further claimed that the deaths did not target a "clearly definable civilian population." Despite Duterte's repeated statements against drug pushers and dealers, Kaufman said the purported targets appeared to be "selected randomly," with innocent civilians also affected.
"Let us ask ourselves whether the alleged attack in this case was directed at a population as a whole or at a subjectively defined subgroup of perceived or alleged criminal offenders," Kaufman said.
Although the prosecution laid out statements from identified co-perpetrators publicly vowing to kill suspected drug personalities during Duterte's presidency, Kaufman countered that the prosecution's "common plan" theory fails to show a "mutual agreement" among them to carry out the criminal objective, even through police operations like Project Double Barrel.
Neutralize defined as 'arrest'
Kaufman further questioned the interpretation of the term "neutralization," insisting that no available document or evidence from the prosecution had shown it was clearly defined as killing.
Cited excerpts from interviews with insider witnesses, he asserted that Duterte's instruction was not exactly to kill but to arrest when he talked about "neutralization."
Kaufman reinforced his point by quoting former police chief and now Sen. Bato Dela Rosa, who said in 2016 that one would "die from police gunfire" only if they resisted.
He then cited another one of Dela Rosa's statement in which he said "neutralization" referred to arrests and, according to Philippine National Police operational procedures, meant the "use of force… to stop the unlawful aggression of the offender."
Duterte's defense also insisted that Command Memorandum Circular 16-2016, detailing Project Double Barrel, could not have been the supposed criminal blueprint for the killings because it also instructs law enforcement to "strictly observe the rights of persons arrested."
Despite this, it is worth noting, as the prosecution and victims' counsel did, that enforcement of such a rule may not strictly be followed as observed in the many killings. But for Kaufman, the existence of this paragraph exonerates Duterte from the allegation he created a policy to kill.
'Fictitious' Davao Death Squad
Responding to the prosecution's argument on the Davao Death Squad, Kaufman called it a "wild assertion" that banks on "unreliable" witnesses because they were self-confessed murderers. This, he insisted, despite Duterte himself recognized the existence of the death squad.
Kaufman even called it a "fictitious," arguing that no witness had come forward to say he heard Duterte give a kill order when he was mayor.
However, the prosecution presented on the first day of hearings that some witnesses had heard of such an order during his term as mayor and that killing operations could only be done under Duterte's approval.
For Kaufman, however, the court should not recognize the statements of witnesses as credible because they were self-confessed murderers whom he claimed only cooperated provided they would be given immunity by the court.
He also asserted that the reason why the prosecution did not charge Duterte based on command responsibility, is because "there is no ascertainable chain of command" demonstrating the connection between Duterte, its co-perpetrators and the death squad who conducted the killings.
Killings persisted before and after Duterte
Arguing that Duterte had nothing to do with the killings, the defense said that drug-related killings in the Philippines would have continued regardless of whether Duterte was in office.
He cited data from the University of the Philippines' Dahas project, which recorded over 340 killings during the first year of President Bongbong Marcos' presidency and found almost half were carried out by state agents, to insist it wasn't because of Duterte that drug-related killings occurred in the country.
Kaufman, like he did in his opening, then criticized again the victims' counsel, asking why it has not clamored for accountability or an investigation into the lives lost under the Marcos admin — to fit his conspiracy theory that Duterte is merely being targeted by the media and civil society.
"The defense does not deny that much drug-related violence did occur. It was occurring before Mr. Duterte assumed the reins of power and continued as we have shown by way of a sharp increase after he left office," Kaufman said.
"But these grandiose visions of the prosecution are of no avail if the core criminality and incidents alleged in the document containing the charges are not made out," he added.
The prosecution, however, earlier argued that the number of police killings nationwide during the drug war had spiked by 590% when Duterte assumed presidency in 2016.
How the hearing ended
The public was unable to hear the final 10 minutes of the defense's argument as the livestream was cut while Kaufman discussed witness testimonies he found contradictory. When the feed resumed, Judge Iulia Motoc adjourned the hearing, leaving the conclusion of his arguments unseen.
Senior trial lawyer Julian Nicholls then requested for a brief private session, which the judge granted before suspending the court's session. During the three sessions, however, there were instances when the feed was briefly interrupted.
When Pre-Trial Chamber I resumed its third session, Motoc reminded the parties of an earlier ruling requiring that confidential information, including witness descriptions, remain protected.
She noted that the defense had identified either the position or characteristic of victims and witnesses despite the court's ruling. Redactions were applied to the hearing transcript and livestream at the prosecution's request, over the defense's objections.
The final day of hearings is set for Friday, February 27, when parties will deliver their closing statements and Pre-Trial Chamber I will review Duterte's detention.
