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MANILA, Philippines — Former president Rodrigo Duterte's defense in his crimes against humanity of murder case before the International Criminal Court has largely hinged on the claim that the prosecution has "no smoking gun" linking him to the killings.
Some legal experts described this as the defense's strongest argument — not because there is a lack of evidence that could directly connect him to the deaths, but because "masterminds" would not think of leaving explicit proof tying them to the alleged crimes.
Retired Supreme Court Senior Associate Justice Antonio Carpio said on Friday, February 27, that those who orchestrate crimes typically keep operations "layered," ensuring that the person who gives out the kill order is not the one who pulls the trigger.
"Wala kang makikitang [smoking gun], so maghahanap ka ng one of the assassins to squeal," Carpio told DZMM Teleradyo. (You won't find any smoking gun, so you will find one of the assassins to squeal.)
Meanwhile, Ruben Carranza, senior associate at the International Center for Transitional Justice, said the "no smoking gun" claim is also lead defense counsel Nicholas Kaufman's weakest argument.
"His strongest point is, I would say, also his weakest point. The argument that there's no smoking gun linking Rodrigo Duterte to actual killings," he told ANC's "Headstart" on Friday.
Duterte as 'indirect co-perpetrator'
Carranza explained that the "absence of a smoking gun" does not mean Duterte "is not criminally responsible" for the extrajudicial killings that took place during his violent crackdown on crime and illegal drugs.
"This is the reason why he's an indirect co-perpetrator, because he's not a direct perpetrator," he said.
He also pointed out that Kaufman's argument that Duterte was never spotted committing the crimes or riding with policemen would likely strike Filipinos as "absurd," since Duterte would not be expected to do such acts himself.
"He did not pull the trigger, but he is alleged to have not only supplied the weapon, but directed the killings using those weapons," Carranza said, stressing that the ICC doesn't focus on the individual killers but those "at the top of this hierarchy."
This is why he believes the prosecution's use of Duterte’s speeches, statements from his alleged co-perpetrators and official data of killings under his leadership can serve as evidence of a pattern.
"Even ordinary people will see the lack of logic in that kind of argument, because why would they record themselves planning, plotting to kill thousands of people? So speeches are evidence of intent," Carranza said.
Need for insider witnesses
This is why Carpio said the lack of a "smoking gun" is precisely why Duterte's assertion — that the prosecution's case rests on unreliable witnesses because they are self-confessed murderers — falls apart.
For him, it is only normal in criminal cases to have state witnesses because it is allowed in the law when they are not the most guilty.
"Because itong mga crimes na ito (in these crimes), you cannot find a smoking gun," he said.
"Kasi 'yung mga mastermind, 'pag hindi mo gawin 'yan, they will never be prosecuted 'pag naghanap ka ng state witness na ito ang nag-pull ng trigger. Walang mastermind ang gumagawa niyan," Carpio added.
(Because masterminds, if you don’t do that, will never be prosecuted if you insist on looking for a state witness who actually pulled the trigger. No mastermind does that.)
While Carranza recognizes that the use of insider witnesses — those considered direct co-perpetrators — may be questioned, he said they cannot be dismissed solely on that basis. Insider witnesses, Carranza explained, help "show the link" between the person giving the orders and those carrying out the crimes.
"So that's the reason why they're testifying, because they don't want to be the only people who will be held accountable, if at all, and the ICC has every power, the prosecutor as well as the court, to exercise prosecutorial discretion," he added.
Kaufman's defense on the third day of Duterte's confirmation of charges hearing focused on arguments that the killings were "self-defense," that "neutralization" meant arrest rather than murder, and that the deaths made up only a fraction of drug arrests found in official statistics.
He also asserted that regardless of Duterte assuming the presidency, killings carried out by state agents would have persisted.
Duterte faces three counts of crimes against humanity of murder and attempted murder, covering 49 incidents and 78 victims.
The Pre-Trial Chamber I is set to conclude the confirmation of charges hearings on Friday, with the parties expected to deliver their closing statements. The court will also hold one session to review Duterte's detention at the ICC.
