MANILA, Philippines – Nicholas Kaufman, the lead defense counsel of former president Rodrigo Duterte, says he “does not anticipate” that the crimes against humanity case against the former president will reach trial.
Rappler sent Kaufman a list of questions about plans of, and prospects for, the defense team, and we are publishing the email exchange in full. Vice President Sara Duterte has earlier said that former presidential spokesperson Harry Roque will not be part of the defense team as she would rather that Roque “focus on his asylum and then we want our lawyers to focus on case.“
Find the Q & A below:
RAPPLER: Will Mr. Duterte file an application for interim release before September 23?
KAUFMAN: Interim release is a right accorded to all suspects at the International Criminal Court which may only be tempered by three recognized risk factors under the Rome Statute. None of those risk factors apply in the present case. Indeed, the only real risk factor is the fear of the Government of the Philippines that the circumstances concerning its shockingly outrageous handling of the former President’s surrender have only increased his pre-existing popularity. For this reason, the incumbent regime would rather he languish in prison and be forgotten about. That will not happen.
While I am not at liberty to discuss the timing of an application for interim release, I can assure you that, in this case, as in all cases at the ICC, a request for interim release will be introduced at the appropriate time.
RAPPLER: At the outset, I would like to make an article about the procedures from this point on. I’ve done research on the statute, the rules, and jurisprudence, but of course I could and may be wrong. May you please confirm that these scenarios are correct, and/or provide quotable corrections/clarifications. Once the application for interim release is filed, observations will be asked from Prosecution, victims, registry? Pre-trial chamber judges may then decide, and they may hold a hearing on this before September 23 or not, depending on their discretion. A decision may come before September 23?
KAUFMAN: The procedure that you have set out is indeed correct with one slight clarification. A request for interim release, once filed, must be dealt with speedily. I will not comment, however, on the timing of the introduction of such a request in the present case. The representatives of alleged victims will, indeed, have an opportunity to make their observations and never has there been an occasion at the ICC when alleged victims’ representatives have actually signalled their agreement to release. Their observations are frequently motivated by a fallacious desire to advance punishment before a finding of guilt. Former President Duterte is innocent until shown otherwise — something which will not happen. Interim release is his right. Ultimately, it is the judicial bench that determines whether a suspect is entitled to interim release or not.
RAPPLER: Should Mr. Duterte’s application specify that he wants to be released in the interim to the Philippines, the Philippine government will be asked for its observation also? Same goes with any other State that Mr. Duterte prefers to be released to in the interim? Does the receiving State need to agree to enforce the conditions of the release?
KAUFMAN: Practically speaking, a suspect will not be released to a country that has indicated that it will not be prepared to monitor and enforce the conditions of supervision mandated by the Pre-Trial Chamber.
RAPPLER: Does the receiving State have to be a member country to be qualified as a receiving State?
KAUFMAN: In principle, a suspect may ask to be released to whichever country and to whatever continent he desires. It, obviously, stands to reason that if a suspect should ask to be released to Russia, Israel or the United States, an agreement would only arise out of a perverse desire to put the Court in a diplomatic bind. Should a suspect wish to be released to an igloo in the Arctic Circle, then there would be no means of enforcing conditions of house arrest. Interim release, in the history of the ICC, is normally made to a State Party. Furthermore, interim release has, traditionally, been the exception rather than the norm. Participation in ICC proceedings, while at liberty, is normally only secured when a suspect coordinates or volunteers his surrender in advance, and manages to persuade the Prosecutor to issue a request for a summons to appear as opposed to a warrant for arrest.
RAPPLER: 30 days before September 23, the Prosecutor should have already sent the chamber and Mr. Duterte a detailed description of the charges, and the evidence to be presented.
KAUFMAN: It is normally the case that a document containing a hyperlinked detailed description of charges is presented to the suspect and to the Court before the confirmation hearing. This document forms the basis for the Prosecution, which bears the burden of proof, attempting to satisfy the judges that there exist ‘substantial grounds to believe’ that a suspect has committed the crimes with which he is charged. The judicial bench may either confirm or deny those charges. A suspect will only be sent to trial on confirmed charges. If no charges are confirmed — then the suspect is released as happened in a previous case that I handled — Callixte Mbarushimana, and in Bahar Idriss Abu Garda — a case handled by my colleague Karim Khan as defence counsel before reincarnating into his current role as the Prosecutor.
RAPPLER: At the confirmation of charges hearing, the judges may confirm all or some charges. If the judges confirm none of the charges, is Mr. Duterte automatically cleared? Or can the Prosecution amend and present new charges?
KAUFMAN: A suspect against whom no charges have been confirmed is innocent. A suspect can only be declared guilty after conviction at trial.
RAPPLER: How many more lawyers are expected to join you? Are you retained by Mr. Duterte or duty counsels assigned by the Office of Public Counsel for the Defence (OPCD)?
KAUFMAN: I will have the best team available and it will be composed of as many lawyers as I need to secure an acquittal as quickly as possible. I am retained by Mr. Duterte and I have been fortunate to take advice from some of the best legal minds that the Philippines has to offer. I have also been inundated with applications from lawyers all over the globe wishing to work for former President Duterte. All recognize his colorful personality, his charisma and the great potential of his family for the future. All are shocked by what has happened to him and want him to return to the country of his birth as soon as possible.
RAPPLER: Will you seek to have the charges dropped by the prosecution before September 23?
KAUFMAN: I will be seeking to have this case terminated and dropped into the footnotes of history before we even get to the confirmation of charges hearing.
RAPPLER: Will you challenge admissibility and jurisdiction provided for under Article 19? Will you raise a violation of Article 59? Or both?
KAUFMAN: I am not disclosing defense strategy. You, however, are quite clearly aware of the weaknesses of the case; namely, the grievous violations of due process and the shaky jurisdictional basis. Otherwise, why would you point me to the very two legal issues that the Government of the Philippines itself fears after having colluded with the Office of the Prosecutor at the ICC, through an Interpol diffusion, to abduct and dump Former President Duterte in The Hague? This was a political hit-job and everyone in the Republic of the Philippines knows it.
RAPPLER: What’s unique about the case of Mr. Duterte that makes you confident of an acquittal?
KAUFMAN: The very factors that you have highlighted above.
RAPPLER: There’s been a lot of talk in the Philippines that the harassment being suffered by the victims, their lawyers, and other human rights defenders, only boost the prosecution’s case. What can you say to this?
KAUFMAN: Mr. Duterte is not responsible, in any way, for the harassment caused to any individual of the nature that you mention. If harassment by unidentified and unaffiliated actors is presently causing the Prosecution’s case to be ‘boosted’, then this would only indicate a need for extraneous and irrelevant factors to enhance a case which, as we know, is already fundamentally weak.
RAPPLER: Lastly on procedure, if the charges are confirmed on September 23, will it be a weekly trial? How often do you think hearings will be held?
KAUFMAN: Let us cross that bridge when we come to it — if at all. I do not anticipate a trial at the present moment in time and look forward to enjoying the future full protocol hospitality of former President Duterte and that of Her Excellency Ms. Sara Duterte in the Philippines. – Rappler
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