HIGHLIGHTS: Day 1 of Duterte pre-trial

THE HAGUE, Netherlands – It was a day of quotable quotes on Monday, February 23, when the International Criminal Court (ICC) opened its weeklong hearing on the confirmation of charges against former Philippine president Rodrigo Duterte.

Both sides claim they won round one, and they may both be right. They also may have been trying to win different battles.

Here’s a rundown on what happened on Day 1 of Duterte on pre-trial at the ICC.

Prosecution

The prosecution presented testimonies from unnamed witnesses who said they had worked as assassins for the Davao Death Squad. One witness claimed to have attended a meeting the day Duterte created the death squad, where the former mayor of Davao City allegedly passed around a basket from which hitmen picked their handguns.

“The new members [of the death squad] could pull one [gun] out like getting a prize. So they would each have a weapon for their new job. It was a celebratory event for Mr. Duterte. The witness explained Mr. Duterte was happy at this dinner meeting,” said prosecution senior trial lawyer Julian Nicholls.

“This is what the witness recalls of the meeting: he, Duterte, told us that your job here in the city would be to kill the drug pushers, the snatchers, and the hold-uppers,” said Nicholls.

The prosecution proceeded to show clips of Duterte admitting both to media and to Congress that he has a death squad. The prosecution went on to say that whatever Duterte said in his public remarks were true.

“That’s not hyperbole. That’s not bluster. That’s him telling the truth when he feels safe, and that he can bank on his continued impunity,” said Nicholls.

Duterte’s public remarks

In the ICC, there are different modes of criminal liability. In Duterte’s case, his mode is an alleged indirect co-perpetrator. This simply means he did not pull the trigger on the crimes being charged against him, but that he was “at the very heart of the common plan to, use his words, neutralize alleged criminals in the Philippines through murders,” as Deputy Prosecutor Mame Mandiaye Niang said.

In this mode of criminal liability, one crucial factor is mental element or proving that the alleged co-perpetrator was aware that a crime was going to happen.

“Mr. Duterte intended and knew that the charged crimes were occurring, or that they would occur in the ordinary course of event that he had set in place and put in motion,” said Niang.

Lead defense counsel Nicholas Kaufman countered this by pointing out that Duterte never wavered from warning policemen not to go rogue. Recalling that Duterte once said, “abuse your authority, and there will be hell to pay,” Kaufman said, “well, there you are, you have it straight in your face, PEXO exonerating evidence within what is claimed to be incriminating evidence.” (PEXO stands for potentially exonerating evidence.)

Kaufman reiterated that these speeches were not sufficient evidence.

The prosecution, however, said their legal theory does not rely only on speeches. “Disregard every speech ever made by Mr. Duterte. Throw them all out. There is still ample evidence of substantial grounds based on the other evidence which we have put on our list of evidence,” said Nicholls.

“It is always a mystery to me how Duterte would be able to show evidence he’s not involved in the drug war, and I confirmed that earlier when the defense mainly said that Duterte’s words were hyperbole or joke,” said Neri Colmenares, a human rights lawyer assisting a group of victim, in a mix of English and Filipino.

“That’s one of the weakest defense, I have further confirmed it’s hard to present evidence at trial to defend him so for me, I’m more confident that charges will be confirmed,” said Colmenares.

Defense

Kaufman’s opening statement portrayed Duterte as a “poor boy” from Davao City whose only crime was having a potty mouth and “unpalatable” words and personality. Kaufman attacked President Ferdinand Marcos Jr. for sending Duterte to The Hague, the victims’ lawyer for allegedly politicizing the case, the journalists for allegedly sensationalizing stories of killings, and human rights lawyers and activists whom he called leftists.

Abrasively calling the people he mentioned “loose collective of civil society,” Kaufman’s tirades sounded very much like Duterte and his mouthpieces during his presidency.

Kaufman insisted that all of Duterte’s inflammatory remarks were just hyperbole. He went on to say that Marcos “neutralized” Duterte.

“Yes, Mr. Deputy Prosecutor, I used that legendary word, neutralize, so central and so essential to your case theory, because you know just as well as me that I’m using the term metaphorically,” said Kaufman.

“Neutralize” is a key word because this appeared in police circulars issued by then police chief Ronald “Bato” Dela Rosa, which the prosecution claims was an authority to kill.

The Duterte administration did not admit to this. Kaufman brought it up to drive home his point that “neutralize,” as with Duterte’s speeches, should not be taken literally.

“That word has been key to all of these killings, my reaction really was sayang, kung dinecide lang ng Supreme Court ang kaso meron tayong ibig sabihin, at hindi puwedeng bastusin ni Kaufman ‘yung mga biktima by using that word, even as I understand as a defense counsel what he wanted to do, which is why I was saying sulit ang bayad sa kanya,” said Ted Te, former spokesperson of the Philippine Supreme Court and also a human rights lawyer who has worked on drug war-related cases.

(That word has been key to all of these killings, my reaction really was it’s a shame, if the Supreme Court only decided that case, we would have had a definition for that word, and Kaufman wouldn’t have been able to disrespect victims by using that word, even as I understand as a defense counsel what he wanted to do, which is why I was saying his fees are worth it.)

Te was referring to a still pending nine-year-old Supreme Court petition to declare Duterte’s war on drugs unconstitutional.

Where’s the jurisdiction argument?

“It was interesting to me to see that there wasn’t a lot of reference to the issue of jurisdiction of the court over the case which is something that is under appeal right now, so I’d be curious to see if and how that is brought up during the next the next few days,” said Maria Elena Vignoli, senior counsel of Human Rights Watch’s international justice program.

Even Salvador Panelo, Duterte’s former presidential legal counsel and one of those the family sent to assist, was looking for the big jurisdictional argument. The defense team considers jurisdiction their biggest strength. Kaufman has enlisted the help of French lawyer Dov Jacobs, whose academic work on jurisdiction had been the source of some ICC judges in the past.

“[Kaufman] did well except that I’d like to hear him question the jurisdiction of this court because that is the very basic, at the core of this case, that this court cannot proceed, cannot even enter into this case because it has no jurisdiction,” said Panelo, who was with Duterte in Malacañang in 2018, justifying their unilateral withdrawal from the ICC.

The big jurisdiction question is if the ICC has power over a non-member state? Based on the last pre-trial chamber decision, jurisdiction stays over the crimes allegedly committed while the country was still a member.

Who took Round 1?

Colmenares said he is now confident that the charges will be confirmed after having heard the opening statements.

“Wala akong nakitang ebidensya ng depensa na hindi niya ginawa [ang mga krimen] (I didn’t see any evidence from the defense to prove he did not commit the crimes) except to claim na na-mistook lang ang kanyang statements (that his statements were misinterpreted). That only goes to show the charges are going to be confirmed,” said Colmenares.

Duterte’s team, however, was very satisfied with Kaufman’s performance on Monday.

“[Kaufman] was very good, very effective, very direct. It’s so easy to make allegations or presentations but these presentations must be based on evidence,” said Duterte’s former labor secretary Silvestre Bello II.

“Para sa akin halos buong statement ni Kaufman hindi legal eh, kundi political (for me the entire statement by Kaufman was not legal but political). Will it benefit Sara Duterte? I don’t know, but maybe, because it will feed into the narrative of the Dutertes that Sara can use,” said Colmenares.

Follow Rappler for more coverage on the confirmation of charges hearing. – Rappler.com