Kaufman: Duterte not co-perpetrator in drug war due to lack of ‘common plan’

Upgrade to High-Speed Internet for only ₱1499/month!

Enjoy up to 100 Mbps fiber broadband, perfect for browsing, streaming, and gaming.

Visit Suniway.ph to learn

February 26, 2026 | 9:30pm

MANILA, Philippines — Nicholas Kaufman, Rodrigo Duterte's counsel, asserted that the detained former president cannot be held legally liable as a co-perpetrator in the killings tied to him, citing the lack of a “common plan.”

Kaufman argued that the legal threshold for indirect co-perpetration requires a mutually agreed-upon design with a specific criminal element, a requirement he claims the prosecution has failed to meet through any direct evidence.

“As we all know, in order to prove criminal liability through indirect co-perpetration, there is a need to show a common plan upon which the suspect and his co-perpetrators must mutually agree, and that common plan must without exception, have a criminal element,” Kaufman said during the presentation of Duterte’s defense at the International Criminal Court (ICC) on Thursday, February 26.

According to Kaufman, the prosecution cannot point to a single instance where Duterte and his alleged co-perpetrators actually met to agree on a scheme to murder criminals.

“I would suggest that the prosecution cannot point to any particular point in time where there is direct evidence indicating that even two of their so-called co-perpetrators actually met to agree to such a preposterous scheme. As such, the plan cannot be described as common to anyone,” he said.

Failure to meet contextual elements. Kaufman argued that the prosecution had failed to satisfy the required elements for a crime against humanity of murder, particularly disputing that the alleged acts constitute a "widespread or systematic" attack.

He pointed out that the inclusion of only nine incidents in Davao City fails the "widespread" legal threshold and emphasized that the prosecution has produced no forensic evidence, such as mass graves or dredged bodies, to support the magnitude of their claims.

“To start by reference to the widespread or systematic nature of the attack, I would like to draw your honor's attention to the fact that count one contains nine incidents of murder in one city, Davao, [which] is hardly widespread,” Kaufman said.

The elements of the crimes against humanity of murder, according to the ICC, are as follows:

1. The perpetrator killed one or more persons.

2. The conduct was committed as part of a widespread or systematic attack directed against a civilian population.

3. The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack against a civilian population.

Kaufman also raised that the prosecution has not established a “causal nexus” linking Duterte to the violence.

He explained that for a conviction to hold, the prosecution must demonstrate which specific statements or orders from Duterte led to an individual “pulling the trigger” on one of the 78 identified victims.

“Not one of the 49 incidents mentioned in the document containing the charges manifests such a causal link between a speech, an order, and one of the charged incidents,” Kaufman said.

“I will state it for the record, in fact, I will state it a number of times during my submissions. There is no smoking gun in this case, and that is not for want of a desperate attempt to find one on the part of the prosecution with all their leading questions when they interviewed their criminal cooperating witnesses,” he added.

As of writing, Kaufman is continuing to present his defense, largely rebutting the earlier arguments from the prosecution regarding crimes against humanity of murder, which allegedly occurred during his tenure as mayor of Davao and president of the Philippines.