3 days ago
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He is overshadowed in the web’s search engines by Nicholas Kaufmann (note the spelling), the American author of horror fiction and urban fantasy. To access information on Nicholas Kaufman, the lawyer of Rodrigo Duterte, one has to write “Nick Kaufman” or “Nicholas Kaufman lawyer.”
Nick Kaufman was born in Liverpool, England to a Jewish family. He is listed in the International Criminal Court’s List of Counsel with a nationality of the United Kingdom and Israel. That is the list of the ICC’s accredited lawyers — only those who are allowed to represent accused clients or defense witnesses before the tribunal. There are only five Filipinos in that list: Gilbert Andres, Joel Butuyan, Charles Janzen Chua, Nashmyleen Marohomsalic, and Herminio Harry Roque Jr.
After graduation from Cambridge University in 1989, Kaufman worked briefly as a defense lawyer in Birmingham. He then moved to Israel where he worked with the Israeli Defense Forces assigned to peace agreements and international law. In Tel Aviv, he was first a corporate lawyer, then shifted to criminal law as a prosecutor in the Jerusalem District Attorney’s Office.
In 2003, his international tribunal career began as trial lawyer in the International Criminal Tribunal for the former Yugoslavia (ICTY). Under his prosecution, Serbian and Montenegrin generals allied with Slobodan Milošević, the butcher of ethnic cleansing in the former Yugoslavia, were convicted for their war crimes in the 1991 siege of Dubrovnik. Milošević himself was extradited to ICTY and served time in prison in The Hague where he died before his trial was concluded.
It was after that when Kaufman became a defense counsel in the International Criminal Court. When current ICC prosecutor Karim Khan was assigned to the position in 2019, the Jewish Kaufman spoke of the Muslim Khan: “It is impossible to bribe Khan.” Khan then had begun his investigations into Israeli atrocities in Gaza and the West Bank. It was Khan who, earlier this year, had asked the court’s Pre-Trial Chamber 1 to issue an arrest warrant for Rodrigo Duterte.
Whenever Kaufman is described as Duterte’s lawyer in the international media, three famous cases are automatically identified with him. He was the defense lawyer in the cases of Jean-Pierre Bemba, the vice president of the Democratic Republic of the Congo (the DR Congo); Maxime Mokom Gawaka, a militia leader of the Central African Republic accused of war crimes; and Ayesha Gaddafi, daughter of the slain Libyan strongman Muammar Gaddafi.
Media literature portrays Kaufman as a “legal heavyweight,” a “legal strategist,” a “veteran in international legal battles.” Let us look at the Bemba, Gawaka, and Gaddafi cases that he had defended. (READ: Q&A with Duterte’s lead counsel Nicholas Kaufman on plans, prospects)
The Congolese militia leader Jean-Pierre Bemba and four other co-perpetrators were accused of responsibility for appalling acts of violence against a civilian population. These ranged from mass rape, pillaging, and mass killings. There were 400 cases of rape with 1,335 witnesses who came forward with testimonies. While on a trip to Europe in May 2008, Bemba was arrested near Brussels, Belgium and turned over to The Hague where he was detained in the ICC detention center.
Bemba et al were accused before the ICC of three counts of war crimes and two counts of crimes against humanity. The prosecutor then was Fatou Bensouda of The Gambia. The Bemba trial began in November 2010, two years and six months after his arrest. The trial lasted four years. Then two more years passed before the court handed down the verdict.
Bemba’s defense lawyer was Kaufman. Curiously, a commotion between lawyer and client took place in December 2014. In a letter Bemba submitted to the court registrar on January 5, 2015, Bemba said he had not seen his lawyer since December 16, 2014. Kaufman had actually submitted to the court a letter dated December 17, 2014, that he be allowed to “seek leave to withdraw from the representation of Jean-Pierre Bemba Gombo.” The judge of Pre-Trial Chamber II Cuno Tarfusser approved Kaufman’s withdrawal on January 8, 2015.
Apparently, the misunderstanding was due to the lawyer’s fees of Kaufman. Bemba had said he could not pay Kaufman anymore. Kaufman responded by saying that it was a “struggle to finance the defense” of Bemba and that he had never agreed to defend him pro bono. After Kaufman, Bemba hired the legal services of Melinda Taylor as his defense lawyer.
In June 2016, the ICC Trial Chamber III convicted Bemba and sentenced him to 18 years in prison. Nine months later, in March 2017, the court added one more year to his sentence and fined him 300,000 euros for interfering with witnesses. Take note of this fact: prior to the verdict, Bemba had spent eight years in the ICC prison.
Bemba later filed an appeal that took one year and nine months to resolve. The ICC Appeals court overturned Bemba’s conviction in June 2018. By then, Bemba had spent almost 10 years in prison. In August 2018, Bemba returned to the DR Congo after 11 years of exile and imprisonment.
Albeit Bemba won his appeal, his 11 years of imprisonment and his financial issues with Kaufman make his case hardly the model to be looked up to by Duterte’s family and supporters. The Rome Statute actually contains a provision that does not set limits for the amount of time an accused spends in prison while awaiting trial and verdict.
Could that be the reason why Sara Duterte announced before media in The Hague that “President Duterte can no longer return to the Philippines”? Duterte the father will turn 80 this week. Clearly, the Bemba case is not the yardstick for a successful defense by Kaufman. The rallying cry of Duterte’s supporters to “bring him home” may not be feasible at all.
Sara had also announced that they would apply for legal aid with the ICC. No one knows how much Kaufman charges for lawyer’s fees. One speculation said it could run up to US$2.5 million per month (P140 million a month)*. That could deplete the Duterte family’s resources given their ultimate aim to preserve their family’s political survival. It has been said — and admitted by one Duterte grandson — that the family owns all the branches of 7-Eleven in Davao City. Even that could be pawned or sold to finance his legal fees.
The Maxime Mokom Gawaka case is an even more problematic index of Kaufman success. In fact, this case gives Kaufman a black-eye disrepute. The ICC prosecution had Kaufman removed as defense counsel because of conflict of interest.
The court had noted that Kaufman had previously represented other clients whose cases were “substantially related” to the Mokom Gawaka case. That was the case of The Prosecutor vs. Alfred Yekatom and Patrice-Edouard Ngaïssona, both of the same country as Mokom Gawaka, the Central African Republic. The court ruled: “The charges in the aforementioned case largely overlap with the allegations brought against Mr. Mokom.”
The decision was forthright: “The Court instructs the Registry to revoke or cancel its appointment of Mr. Kaufman forthwith and relieve him from further representing Mr. Mokom in this case.”
But there was another facet of the Mokom case that can hardly act as guiding precedence to the Duterte case. No witnesses had come forward to testify against Mokom. Contrast that to the Duterte case: former assassins of the Davao Death Squad are now in the witness protection program of the ICC; reportedly some police generals will be testifying against Duterte. That does not count as yet the several civilian witnesses who belong to families of drug war victims.
On October 19, 2023, the ICC prosecution dropped the charges of crimes against humanity and war crimes against Maxime Mokom Gawaka because of the unavailability of witnesses. The same measure cannot be applied to the Duterte case.
Kaufman’s third celebrated case was that of Ayesha Gaddafi, the daughter of the Libyan dictator. Ayesha had hired Kaufman in 2011 to bring to the ICC’s attention the brutal murder of her late father and brother. Gaddafi and his son Mutassim were killed by an enraged mob of Libyan rebels in October 2010. The killing was broadcast and seen by the rest of the world.
Kaufman then wrote a letter to ICC Prosecutor Jose Luis Moreno Ocampo to demand an investigation. Moreno Ocampo had opined in December 2011 that the deaths of Gaddafi and his son could constitute a war crime.
The ICC replied to Kaufman that the new Libyan transitional government had promised to investigate Gaddafi’s murder. Pending an update on the matter, the ICC would advise Kaufman of any progress. Moreno Ocampo was actually acting legally per the Rome Statute that the ICC would step in only if the subsequent Libyan government after Gaddafi was unwilling or unable to act. This is the ICC principle of complementarity.
The Gaddafi case is hardly a gauge for the Duterte case where the Philippine National Police deliberately omitted doing police reports on the drug war murders so as to suppress the filing of court charges. Of the thousands of murders done by the Duterte government, only four had reached conviction in a trial court. The Kian delos Santos case progressed to the conviction of the police killers because unknown to them, there were CCTV cameras that recorded the murder.
Nick Kaufman says he is confident he can bring Duterte’s acquittal. But his record as ICC counsel has had no rich history of that. Legal scandals though he has. – Rappler.com
*US$1 = P56
