Meeting with ICC prosecutor about Duterte, Israel only subtopic – Kaufman

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Kaufman says he had asked for a professional meeting with ICC prosecutor Karim Khan to discuss Duterte's interim release request. His explanations are quoted in full in the story.

MANILA, Philippines – Nicholas Kaufman, the lead counsel of former Philippine president Rodrigo Duterte, is under scrutiny after the news website Middle East Eye reported the details of a hotel bar meeting between him and International Criminal Court (ICC) Prosecutor Karim Khan on May 1. He supposedly warned Khan that pursuing further warrants against Israeli officials “could end up destroying the Court.”

Kaufman, who is British-Israeli and a former prosecutor in Jerusalem, confirmed the meeting to Rappler, but said the purpose of the meeting was to talk about arrangements for Duterte’s request for interim release. Kaufman said he asked to meet Khan in his office, not in a hotel. Khan went on temporary leave on May 16 to give way to an investigation into his alleged sexual misconduct at the Office of the Prosecutor (OTP), causing further turmoil in the ICC which has received multiple sanctions from the United States because of its order to arrest Israel Prime Minister Benjamin Netanyahu over the destruction of Gaza.

Ruben Carranza, a Filipino lawyer based in New York specializing in transitional justice, said that Kaufman’s arguments for Duterte about the ICC’s lack of jurisdiction will also benefit Netanyahu. “They want to get the ICC to rule that withdrawing from the Court, or what the Philippines did, or not joining it ever like Israel, can let leaders like Duterte and Netanyahu get away with committing crimes against humanity,” Carranza said, referring to Kaufman and his assistant counsel Dov Jacobs, who had also once defended Israel via submission to the International Court of Justice.

Below is a transcript of Rappler’s questions to Kaufman, and his answers:

Rappler: What would you say to critics who make the connection that your taking on the Philippine case is also allegedly for Israel’s benefit?

Kaufman: Sorry to disappoint you, but I am not representing Israel and its officials, nor would I want to. This is not because I am not proud of my country, but rather because I have a policy of not taking on cases where I am personally involved. My clients in Israel are not chosen by political affiliation. I have represented Arabs charged with security offenses and Arabs at the ICC. I witnessed the atrocities of 7 October 2023 with my own eyes. I am saddened by the events unfolding in Gaza. So no, I am not assuming the Duterte case for Israel’s benefit.

As for Ruben Carranza’s comments, this is not a matter of persons “get[ting] away with committing crimes against humanity” when the persons concerned are happy to be tried in their own jurisdiction. This is even more so the case when accountability and victims’ expectations can equally be addressed in a domestic State but that State decides to divest itself of an investigation for political reasons. As we have clearly argued, there is no dispute as to material jurisdiction over the crimes committed in the Philippines. The Court, however, will now decide when that jurisdiction could or should have been exercised.

Rappler: As you [told the Middle East Eye], you saw the Prosecutor as a friend you felt at liberty with talking to about your thoughts. Would you still maintain that the meeting does not violate the Code of Conduct for counsels who “shall take all the necessary steps to ensure that his or her actions are not prejudicial to the ongoing proceedings”

Kaufman: That I violated the Code of Conduct is a completely ludicrous suggestion. I asked to meet Karim Khan in a professional capacity in his office at the ICC — a perfectly acceptable and ethical request. He refused and I give you his bizarre response with the ridiculous emoji which accompanied it verbatim: “Given you are involved in at least one case (two maybe if including Sudan), it wouldn’t be appropriate to meet alone in the Office am afraid. The speculation would not be fair to either of us and we may have to read about it with a slant in the Guardian the following day 😎!!!”. So, in the end, I was forced to conduct a professional meeting about former President Duterte at a hotel where Khan frequents.

At that meeting, Karim Khan made an offer which materialized into an agreement for interim release to a certain State. He also promised to consider the jurisdictional question which he accepted needed revisiting given that the decision to wait to 2021 to open an investigation had been taken by his predecessor — Fatou Bensouda.

Yes [we discussed Palestine]. At that meeting our conversation then turned to the Palestine issue concerning which I gave him my frank views. I told him that I believed that he had stretched the Court to the limits through his faulty exercise of discretion and misguided prosecutorial strategy of targeting attention grabbing high-profile suspects based on media clippings. I told him that his policy of pursuing non-State party leaders, such as those in Myanmar, Russia, Israel, and the Philippines was not the purpose of a Court based on a treaty signed by States undertaking mutual obligations. I told him that his decision to seek further arrest warrants against Israelis, while Israel was challenging admissibility, would attract more US Treasury sanctions and which could end up destroying the Court. And, sadly, I was not wrong. After the Guardian’s report that Khan was proposing further arrest warrants against Israelis, the judges of the Pre-Trial Chamber were sanctioned. Karim Khan’s reputation is in tatters because of the sex allegations, so it is not surprising that he and his wife would seek support from a self-serving note for the record of non-existent threats concerning a meeting over drinks which he instigated and paid for out of his own pocket. I feel it sad that he should have to salvage his reputation in the Middle East Eye.

Kaufman has filed two requests on behalf of Duterte, one seeking an interim release, and the other to junk the entire case based on lack of jurisdiction. Kaufman initially said that the OTP has agreed not to oppose the request for interim release, however the deputy prosecutor later said they were amenable to a release only if it’s to their chosen country, and not Duterte’s chosen country. The OTP has strongly opposed the request for interim release.

Asked if the meeting between Kaufman and Khan are being looked into by the ICC, the court’s spokesperson Fadi El Abdallah said, “We can’t comment on media reports.” – Rappler.com