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MANILA, Philippines — Rather than laying down a clear defense, Nicholas Kaufman, former president Rodrigo Duterte's counsel, spent much of his first 30 minutes before the International Criminal Court criticizing statements made by prosecutors and the victims’ lawyers.
What little argument he did offer relied more on conspiracy theories and logical fallacies than on facts that could argue how Duterte bears no responsibility for the system of killings he allegedly created under his leadership.
Michael Tiu Jr., who teaches at the University of the Philippines College of Law and heads its international criminal law program, said Kaufman was “very political” in his opening statement.
Gaps in Kaufman’s initial defense
Kaufman was last among the three parties to deliver their opening statement during the first day of Duterte’s confirmation of charges hearing on February 23.
After branding the arguments of Joel Butuyan, the victims’ counsel, as “political demagoguery,” he quickly turned to President Bongbong Marcos, accusing him of seeking to “neutralize” Duterte by allowing his arrest and transfer to The Hague.
Tiu described the attacks as “irrelevant” in the context of international law and said the Pre-Trial Chamber I judges are trained to disregard them. Perhaps, he said, Kaufman was “speaking to a different audience there.”
Kaufman then, in so many words, defended the former president, saying Duterte’s “inflammatory statements” were intended only to instill fear and obedience, not cause deaths. “Nothing more, nothing less,” he said, arguing that Duterte was simply fond of making exaggerated statements.
Tiu, however, found this line of reasoning quite flawed. The argument simply banks on the former president’s upbringing, his “good” character and how he was reelected mayor multiple times to insist Duterte would not have any criminal intent — as if both cannot happen at the same time.
“There are things that don’t follow. His statements about the politics and how Duterte often qualifies his words and inserts hyperbole don’t mean that he did not intend for the consequences, like the killing to happen,” he told Philstar.com.
“They don’t exclude each other,” Tiu added.
He said that Kaufman arguing based on Duterte’s popularity and the fact that he has a large support base could itself demonstrate what “contributed to the culture of impunity.”
‘Hasty generalizations’
International law professor Evecar Cruz-Ferrer also shared a similar opinion. She said Kaufman made “hasty generalizations” in his initial defense, devoting much of his time to accusing the media, academe, civil society and government officials of having conspired against Duterte for years.
“He spent more than 1/3 of his presentation on the character of FPRRD and demonstrating that there was an orchestration by the elites and various institutions against him,” she told Philstar.com.
Kaufman claimed that media outlets, which he described as controlled by the powerful, produced “sensational headlines” with a “twisted editorial slant” that “ignores the true context.”
For non-government organizations and human rights activists, he said Duterte had become a “natural target” because of his “belligerent tone.”
Kaufman even went as far as to argue that the hundreds of photographs that captured the bloodied streets and lifeless bodies during his drug war were only meant to “advance an agenda” aimed specifically at Duterte.
What Kaufman left out
But as Tiu pointed out, Kaufman failed to paint a complete picture of the events that unfolded during the Duterte administration and the consequences of his words — regardless of whether he intended harm or not.
It simply comes down to this: Duterte was president, occupying the highest office in the country and wielding undeniable influence by virtue of his position, and he is accountable for his statements.
“He painted everybody as the villain except Duterte. Like he was so backed to a corner. He failed to mention that Duterte was the most powerful person during his Presidency. And then not everybody was free to speak because Duterte always retaliated,” Tiu said.
“Of course, he won’t say that, but since he painted a picture of the politics anyway, he did not paint a complete one,” he added.
When the prosecution presented its evidence, it did not leave this stone unturned. Senior trial lawyer Julian Nicholls stressed that Duterte himself recognized explicitly, on multiple occasions, that he takes responsibility for the drug war.
The ‘reasonable’ arguments
If Kaufman made any strong or reasonable arguments, Cruz-Ferrer said they were only “briefly mentioned” in his opening statement.
She referred to Kaufman citing the speech Duterte made after the famous “Pietà” photo, taken by photojournalist Raffy Lerma, was published as the banner of a broadsheet in 2016.
The image showed a woman holding her partner’s lifeless body on the street after he was shot by motorcycle-riding gunmen, with onlookers nearby and a cardboard sign reading in Filipino: “I’m a drug pusher, do not copy.”
Although Duterte criticized the image as “full of drama,” Kaufman believed it was important to point out how the former president also warned the police against abusing their power in the same speech.
He used this to argue the shoot-to-kill and other “hyperbolic” statements were meant solely for the police’s self-defense.
Cruz-Ferrer said this was an argument based on the fact Duterte made a specific statement. Nonetheless, it can still be rebutted by the prosecution as it did when they cited multiple statements and witness testimonies debunking Duterte only referred to “self-defense.”
Another argument she deemed reasonable was Kaufman’s assertion that it is the prosecution’s responsibility to show that Duterte truly intended harm and supervised the killings “as a result of his incendiary language.”
The prosecution charged Duterte with three counts of crimes against humanity of murder and attempted murder, citing 49 incidents and at least 76 victims from his time as Davao City mayor and president.
The defense is scheduled to present its counterarguments and evidence on February 26, a day before the ICC Pre-Trial Chamber I wraps up Duterte’s confirmation of charges hearing on February 27. — with reports by Ian Laqui
