TRANSCRIPT: Nicholas Kaufman's closing statement at Duterte’s ICC confirmation of charges hearing

Thank you, Madame President. Thank you, your honors.

I don't propose to present a long rebuttal. The defense has made its submissions comprehensively, and it stands by everything that it has said and presented. I am, however, forced to respond just to a couple of the most egregious observations made by the learned prosecutor and the learned victim's representative.

I will start with Mr. Nicholls, the prosecutor who tried to convince you that I had admitted that you cannot trust anything coming out of Mr. Duterte's mouth. Well, he took it completely out of context, didn't he? What I was saying and what everybody understood is that Mr. Duterte's speeches alone are totally insufficient to substantiate the charges against him. And the learned prosecutor apparently agrees. He said, "Throw them all out for the purpose of the confirmation. Even without the speeches, we have enough to confirm the charges.” And then he celebrated the fact that he had managed to find one, and I stress, just one example of a direct order, so he thought, to kill emanating from Mr. Duterte, and that is to be found in incident one.

So, for the benefit of the record, let me just clarify and repeat what I said and I refer you to transcript 4, page 65 at line 14 onwards and I quote, P26, who—redacted—claims that Mr. Duterte telephoned a redacted third party to order the operation and was told it was the mayor on the phone. Hyphen pure hearsay. That's what I said during the hearing and I stand by my word. But because I thought that maybe Mr. Nicholls might have caught me out, I went back to the transcript and the record and I looked long and hard and once again I quote P26's words from the evidence. I asked who called and the redacted third party said Superman. And to make things clear, the prosecutor's investigator then asked P26, "Was the person who took the call the redacted third party?" And the answer he received was yes.

So I repeat my submission with even more emphasis, pure, unadulterated, and undiluted hearsay. What Mr. Nicholls rebuttal boils down to—maybe he didn't mean to infer it but he did—all it boils down to is a plea that, “Well, Kaufman's pointed out a few problems. Let's just leave it for the trial judges to sort out.” And for that, he's quite happy to let Mr. Duterte fester in detention for years to come. In the United States they call that kicking the can down the road. And as for the learned victims representative, I've been restrained up until now. I have paid my respect to the families of those who have lost loved ones and I repeat that expression of sympathy that I made as my very first statement on behalf of the defense.

But I would like to remind the learned representative for the victims that he is not a mini prosecutor and to regale the pre-trial chamber with unsupported allegations that many, many children lost their lives is utterly inappropriate. His stance and that of his colleague have reflected the media reporting of this case. Namely, complete disregard of the evidence. And to be frank, you haven't heard one single piece of evidence cited by them. That's why they have Miss Massitter sitting next to them. Indeed, the media's interest in this case has been intense, but it has followed a familiar theme: Rodrigo Duterte is finally behind bars where he belongs. And as a defense lawyer, I stand up and I talk about due process, fair trial rights, and the presumption of innocence. But what use is that when the whole world has already tried and convicted him, and furthermore makes emotional arguments to justify their position? What about the presumption of innocence?

Mr. Butuyan talks about threats emanating from many Dutertes. He says that people are threatened by Duterte clones in countries all around the world. He tells you about Rodrigo Duterte converting millions of peace-loving citizens into bloodthirsty disciples. Not dozens, not hundreds, but millions. So Mr. Butuyan says, "What an insult to the Filipino nation." And Mr. Butuyan concludes by presenting an emotional ultimatum: Confirm or Duterte will be portrayed as the person who vanquished the ICC. Those were his words. These submissions were quite unique for this court and of course totally irrelevant for the purpose for which we are gathered here today. And as for the mainstream media back in the Philippines, the situation is not much better when I argue that there has been interference in his case at the highest level, relying not on documentation that I have invented, but on documentation, documentation given to me by the prosecution is exonerating. They say I'm making a political speech and that my defense lacks substance. And when I devote more time than the prosecution and the victims together to legal arguments and challenging the evidence, they say I'm nitpicking. Well, fortunately, we have this honorable bench which appreciates the presumption of innocence and the need to examine the evidence thoroughly in order to examine whether the prosecution has proved its case to the required standard. We are fortunate in that we have this honorable bench to review the various arguments dispassionately and professionally. And we know that this honorable bench, despite our struggling with the various redactions that have considerably reduced our ability to make comprehensive submissions in open session, we know that this bench will assess our arguments faithfully. We have provided a comprehensive analysis of both the law and the charged incidents. We have attacked every single count in open session while doing our very best to respect the restrictions imposed upon us and applied by the prosecution to its charging document and pre-confirmation brief. And these redactions have not just been a few here and there. They have been so sweeping that virtually nothing intelligible remains of the 49 incidents that we have been talking about for the public to read and to understand.

Let me just screen you an example from the public record from the public version of the pre-confirmation brief so that the whole world can appreciate it. And the same goes for the redactions applied to the identities and roles of the various criminal cooperating participants. While I found this unfair and contrary to the spirit of transparency which is meant to govern the conduct of the proceedings at this institution. I approached my counterpart in the prosecution and complained that the nature of his redactions would mean that most of my meaningful submissions, namely the attack on the evidence substantiating the 78 deaths, would require me to go into close session. “Don't worry,” I was told by the learned prosecutor, “we're going to release a lesser redacted version of our charging document and confirmation brief.” “Wonderful,” I said to myself. But what in due course did we get? A document which merely released the names of the eight so-called co-perpetrators and which caused a storm in the Philippines? It even caused the Secretary of the Interior to state that his department had begun tracing the whereabouts of these so-called co-perpetrators. And in its lesser redacted version of the document containing the charges and pre-confirmation brief, the prosecution also released the names of certain high-profile victims which it had selected, thereby enabling it and it alone to talk freely in open session about certain incidents that it felt crucial to its case.

From this, I submit, your honors, you can really appreciate the true inequality of arms facing the defense as it attempts to defend the client in the public eye. I stress in the public eye at the International Criminal Court. This inequality of arms in the public eye expresses itself in the way the prosecution controls the narrative by arbitrarily lifting reductions so that it can make its narrative of a grand scheme of co-perpetration known to the public in open court while the defense can only meaningfully attack the real meat and the substance of the charges either obliquely or in closed session, including that hotly disputed incident with the CCTV. Well, we hope that we have found a way around that by referring your honors to the relevant places in the evidence, and we do trust you to pick up on the problems without the benefit of our full explanations in open session, even if the remaining part of our plea was rendered rather dry. But I do assure you the general weaknesses that we have identified pervade throughout and are so recurring that the total value of the prosecution's evidentiary matrix drops not just below the substantial grounds threshold that the prosecution must meet but hits the very rock-hard bottom.

And I will summarize these weaknesses once more for the record: layered hearsay, conjecture over reliance on an accomplice evidence with offers of virtual immunity at the ICC, contradicting statements between participants in a crime, absolute lack of any linkage whatsoever to Mr. Rodrigo Duterte, and the total lack of support for an alleged crime both in the documentary and forensic record. And regarding these documents, it is not enough to argue that the Duterte administration destroyed them. There is absolutely no evidence for that.

It is an outrageously unsubstantiated accusation which is not alleged, and where the documentation does exist, the prosecution is quite happy to rely on it. But what is this threshold? This substantial grounds to believe threshold. Well, clearly it is not beyond a reasonable doubt. That's the standard required for a conviction at trial. But it is considerably more than reasonable grounds to believe which is the standard applied for the issuance of an arrest warrant.

If I may, let us take the analogy introduced by Mr. Butuyan, that boat of his that set sail in order to avoid leaving his victims stranded on an island. Your honors, this boat is the confirmation process and its captain is this honorable bench. We are all passengers in this boat. The favorable winds in the sea and in the sails are for the prosecution, the incriminating evidence, and the sharks and the rocks in shallow waters are the exonerating evidence, the hearsay, the contradictions, and the accomplice witnesses. I ask you to consider how many sharks and rocks that we have discovered and pointed out to you through our binoculars. Would you board that boat if you knew that there was substantial grounds to believe that the boat would sink if it encountered one of the aforementioned perils? Let me define a test using more strictly legal language. The evidentiary standard applicable, namely substantial grounds to believe, is met with respect to a discrete incident when, and I quote from paragraph 38 of the confirmation decision, there exists concrete and tangible proof demonstrating a clear line of reasoning underpinning the specific allegations. By way of parenthesis, I should state that this quote from the confirmation decision recognizes the fact that each pleaded incident in a document containing the charges must be proved to the requisite standard for it to be adduced at trial. And that is what we request the honorable pre-trial chamber to consider.

I have been asked by the many journalists who literally mobbed me outside this court building whether I have been reporting on the proceedings to the former president. And I tell them, "Yes, of course. That's my duty as a lawyer. I have to report to my client. It would be unethical otherwise." And they ask me, "What does he have to say about the case?" Well, I'm going to enlighten you all a bit. For the best part of a year, we have been litigating the issue of jurisdiction and fitness. Your honors have delivered your rulings. However, even though you found him capable of standing trial, I permit myself to tell you just a little bit about what really goes on in prison, no more than a kilometer from here. I permit myself first to tell you about his reaction to the demand of the prosecution and the victims that he appear. I won't hide the fact that I thought it best for him to appear. Not out of a need to satisfy the desire of the prosecutor and the victims who desperately want him to face his accusers so that they can wave their collective finger at him despite the presumption of innocence. I did not want to disappoint his many supporters. That was my reasoning. Those mini Duterte clones, as Mr. Butuyan derisively calls them, who have been deprived of seeing their former and beloved president for more than a year. I told him that your honors could have rejected his request to waive the right of attendance. We even had a barong specially fitted for him so that he would not have to suffer the humiliation of being put into an out-of-size blue suit which would now dwarf his meager physical body. The same blue suit in that dreadful photograph which still remains on the ICC website and I would ask to be removed. But he took his decision and as his counsel, I was obliged to respect it. And the day before yesterday, when your honors gave us a break, I went to that prison and I sat with him for an hour. I tried to engage him concerning the evidence and he lost a desire to follow me within less than a minute. I offered to show him excerpts of the confirmation proceedings, a few minutes of the deputy prosecutor, a few moments of Ms. Massitter and hoping, hoping that it might excite him a bit more, some of my own opening statement. He shook his head firmly. I implored him. I said, "Sir, look, look at what we are doing for you. We're doing our utmost to get you out of here." But once again, he politely declined. And I asked him, "Why?" I said to him, "Sir, don't you understand? They accuse you of murder. They say that you murdered thousands when you were the mayor and when you were ruling your country. And then he repeated the question that he has always asked me for a year or more: “How does the prosecution say that I did this?” Well, I replied, “I thought until Monday that it was because of those speeches of yours, but then your prosecutor told the honorable judges the other day, ‘Throw them all out. They're not necessary for the confirmation. He claims that he still has enough evidence to convict you without all the bluster.’ And the former president repeated the question, "But how? I've never murdered anyone and they talk about thousands?” And then I tried to explain to him arcane concepts such as indirect co-perpetration, and then his eyes simply glazed over.

And who can blame him? As I mentioned, it is the only highly technical means whereby the prosecution can artificially connect him to criminal activity, not of his own doing. I then tell him that the people who are incriminating him are self-confessed murderers cooperating with the prosecution whose names we can't mention in public. I tell him that in return for their dubious services and their expressions of so-called remorse, as the prosecutor puts it, they will not face trial at the ICC, probably nowhere in the world, and will be rehoused with new identities.

Mr. Duterte, the ex-prosecutor, like me, can't understand the fairness of that, relying on not one but a number of vicious criminals to convict him. When he remembers that he is supposed to be presumed innocent, I tell him the names of those criminal cooperating witnesses because apart from us, he is the only person who is entitled to know. He tells me that he has not heard of any of them apart from two who he vaguely recalls from his days as mayor. Concerning one, his comment is “liar.” And concerning the other, “scallywag” and then exactly in the spirit of the waiver filed with this court, he looked at me solemnly and said, "Mr. Kaufman, Nic, I have done my duty and I have left my legacy. Go to court and do your job. But I can no longer help you. I no longer remember much at all and I can't comment on people who I do not know and on statistics that mean nothing to me.” He then concluded and pronounced as follows: “I was a faithful servant of the people and that is how I wish to be remembered. I have now accepted my fate and I realized that I could die in prison.” And on that somber note, my team and I realized that there was no point in continuing. So we tried to humor him. We told him that next month he will be 81 and we reminded him of the many people who visit Duterte Street and Duterte Park, the renamed locality just outside the ICC detention center as referred to by the many many pilgrims who have visited The Hague to feel closeness to his presence, even if they cannot witness his actual person with their own eyes. We remind him of the mountain of cards and greetings and of the forest of flowers that he received both at the detention center and at the court's premises on his 80th birthday. So many cards, all of which were read by his family, that we had to provide two sacks to take them back to our office. So many bouquets of flowers that the prison had to bring a van to take them away. The flowers that reached the court premises were strategically placed around the building. And although so appealing and desirable and coveted by the staff were avoided once the staff was told of their origin. So these flowers just rotted in the corridors until the smell forced them to be thrown away.

We showed him some photographs of his family. We showed him photographs of his youngest daughter, Veronica, Kitty, who writes to him every day so often that the letters are piling up in his room. His face starts to light up. We showed him pictures of civic events in the Philippines with Sebastian, Baste, and Paolo, Pulong present. He laughed and told us what he remembers of their days as young men in Davao. We showed him pictures of Inday Sara greeting the enthusiastic crowds of people in the Philippines and then finally his face beamed with pride.

Your honors, it is so easy to choose as a target for prosecution a politician because of the way he presents his policies. If Rodrigo Duterte is to be faulted for anything, it is for his inappropriate choice of language, but he murdered no one. Out of that huge database of evidence on which the prosecution relies, I repeat that there is absolutely nothing to directly link Rodrigo Duterte to the 78 deaths alleged. That is why they rely on a few selective and vociferous individuals in the Duterte administration, calling them co-perpetrators just so it can artificially superimpose their fantasy common plan theory linking Rodrigo Duterte to the victims.

Your honors, I beg you to be guided by evidence which must reach a minimal level of integrity. Be persuaded by your own innate sense of justice and by your own collective years of experience. But most importantly, be guided by coherent evidence and by common sense. I ask you, I beg you not to confirm any of the charges. I ask you to let Rodrigo Duterte return to the Philippines, not to govern, but simply to let him live out the rest of his days in peace in his humble dwelling in Davao.

And with that, your honors, I conclude and I wish to thank you for your patience and to thank the parties and the participants and most importantly my team: Dov Jacobs, Havneet Sethi, Sandrine de Sena, Davide Rancati, Alexandre Desevedavy, Nicholas Russo, and Kailin Chen—all of whom have worked throughout the last year for one cause alone and that is to serve our client Mr. Rodrigo Duterte faithfully.