Duterte's Defense Counsel Questions ICC on Marcos-Era Killings, Argues Lack of Direct Evidence
In a dramatic turn at the International Criminal Court (ICC), Nicholas Kaufman, defense counsel for former President Rodrigo Duterte, has raised pointed questions about ongoing vigilante killings in the Philippines under the current administration of President Ferdinand Marcos Jr. During the third day of confirmation of charges hearings, where Duterte faces allegations of crimes against humanity related to his drug war, Kaufman highlighted what he described as a concerning continuity of violence.
Challenging the ICC's Focus
Kaufman directly asked the ICC panel whether there is any effort to investigate the "vigilante killings" occurring during the Marcos administration. He emphasized that Duterte's departure from office has not halted the bloodshed, stating, "There is no reason to believe that Duterte's disappearance from the political scene would have frustrated the ongoing incidents of murder at the hands of state agents or vigilantes."
He further pressed, "Clearly, I'm forced to ask myself whether anyone on the other side of this room has thought of investigating the Marcos regime and the related phenomenon and holding someone accountable."
Citing Alarming Statistics
To support his claims, Kaufman referenced data from the Dahas Project by the University of the Philippines. According to the report:
- During the first year of the Marcos administration, 160 out of 342 killings involved state agents.
- From July 2023 to June 2024, killings increased from 342 to 362.
- State agents were implicated in 34 percent of these killings.
Kaufman expressed bewilderment at the apparent silence from human rights groups and drug war victims who previously demanded accountability under Duterte. "Or is it of no consequence now that Mr. Duterte is sitting in the ICC detention center?" he questioned rhetorically.
Defending Duterte Against Charges
Duterte faces serious charges at the ICC, including:
- Murders in or around Davao City during his mayoral period (2013-2016) by the Davao Death Squad, involving 19 alleged criminal victims, including three children.
- Murders of high-value targets during his presidential period (2016-2017), involving 14 victims.
- Murders and attempted murders in barangay clearance operations during his presidential period (2016-2018), covering 45 victims.
However, Kaufman vigorously contested these allegations, asserting there is "no smoking gun" linking Duterte directly to the murders. He told the ICC's Pre-trial Chamber I that none of the prosecution's witnesses in the 49 alleged incidents would testify they received a direct order from Duterte to "go out and kill someone."
Disputing the Prosecution's Narrative
Kaufman argued that the ICC requires proof of a causal nexus—a direct connection between statements or orders and specific killings—which he claims the prosecution has failed to demonstrate. He described the prosecution's claim that Duterte launched a widespread and systematic attack through his drug war as "not just incomprehensible; it is quite bizarre."
He highlighted testimony from prosecution witnesses who clarified that the term "neutralize" in police operations meant lawful restraint, not killing. "Witnesses P1158 and P1170 explained that neutralizing means to arrest or to incarcerate through legal means. It did not mean to kill," Kaufman stated.
He added, "Witnesses P1050 and P1174 confirmed that lethal force arose only where a suspect's resistance placed an officer's life at risk, reflecting the ordinary doctrine of self-defense."
Clarifying Terminology and Procedures
Kaufman noted that former Philippine National Police chief and now Senator Ronald "Bato" dela Rosa, identified as a co-perpetrator, also clarified that neutralization means arrest. He referenced the police procedural manual, which defines neutralization as a "police intervention in strict accord with the use of force continuum and/or principle of proportionality on the use of force to contain or stop the unlawful aggression of the offender."
He cited a Supreme Court observation that the term is included in the 2014 PNP revised manual on anti-illegal drug operations, adding, "The court further clarified that the mere inclusion of the term in a circular does not render that instrument unconstitutional, especially when the circular mandates compliance with internationally-accepted legal principles, public policy, and the full observance of human rights."
Criticizing Prosecution Witnesses
Kaufman labeled the prosecution's "star-witnesses" as "self-confessed murderers" who were brought forward on a "silver platter." He expressed moral objections, saying, "I do not think that I would be alone either in believing that there is something morally repugnant or even questionable, from a public policy standpoint, to shield not only one but a number of murderers from prosecution at the ICC just in an attempt to nail Rodrigo Duterte."
Due to the defense's disclosure of sensitive information that could identify victims and witnesses, the chamber decided to redact part of the hearing from the live broadcast.
Asserting Weak Evidence
Kaufman described the case against Duterte as built on weak, circumstantial evidence rather than concrete proof. He reiterated that Duterte's controversial speeches, central to the prosecution's narrative, do not prove intent to kill, characterizing them as "colorful" and "crusty" but not directly instructive of murder.
He maintained that the prosecution's claim of an overarching "common plan" to target the civilian population was unproven and thus cannot establish Duterte's liability. As the hearings continue, Kaufman's arguments underscore the complex legal and moral dimensions of this high-profile international case.
