Reading Kaufman

During an interview with local media, Nicholas Kaufman, the lead counsel of President Rodrigo Duterte in the crime against humanity case, said he was not disclosing the strategy to bring his client home as soon as possible but provided broad hints.

“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,” the veteran International Criminal Court (ICC) lawyer said.

The lawyer has a solid background, as he started his legal career, like Duterte, as a prosecutor. He served as Senior District Attorney in Jerusalem in 1996 and as a prosecutor at the International Criminal Tribunal for the former Yugoslavia starting in 2003, where he helped secure convictions of Serbian and Montenegrin generals for 1991 war crimes.

As a defense counsel, he represented high-profile clients, including former Congolese Vice President Jean-Pierre Bemba.

Kaufman was co-counsel in Bemba’s trial until 2014 before withdrawing due to payment issues. Bemba was acquitted in 2018 on appeal after an initial conviction.

He advocated for Aisha Gaddafi’s (daughter of Muammar Gaddafi) rights amid United Nations (UN) sanctions, though she did not face formal ICC charges.

Kaufman was also the counsel of Maxime Jeoffroy Eli Mokom Gawaka, a Central African Republic militia leader, in an ICC case until a conflict of interest made him leave. Charges against Gawaka were dropped in 2023.

Kaufman secured a dismissal against Rwandan suspect Callixte Mbarushimana in 2011 due to insufficient evidence.

Drawing from his expertise in clinching an early end to cases he handled, the Duterte strategy will likely focus on ensuring the complaint does not reach the trial stage.

The Philippines exited the Rome Statute effective 17 March 2019. The ICC’s investigation into Duterte began in 2018, and Pre-Trial Chamber I reaffirmed jurisdiction on 26 January 2023, for crimes from 2011 to 2019.

The arrest and prosecution in 2025, post-withdrawal, would likely be contested as exceeding the ICC’s reach over a non-member state.

Article 127 limits jurisdiction to acts completed before withdrawal, not enforcement actions like arrests years later.

An International Criminal Police Organization (Interpol) diffusion notice, as claimed by the government from a non-member state, could be alleged as ultra vires, or an act not done under proper authority, since the Philippines rejected ICC cooperation post-2019.

The official line is that the Philippine government does not recognize ICC jurisdiction, later changed to respecting the Tribunal’s authority prior to the 2019 withdrawal, but has commitments with Interpol that it honors.

Another point that would likely be raised is the failure to adhere to due process in the arrest and transfer of Duterte.

In Gbagbo’s acquittal, the defense counsel, led by Kaufman, dismantled the Prosecutor’s evidence by exposing procedural flaws. A premeditated haste in the transfer of Duterte may be considered among the arrest irregularities that could sway ICC judges.

Kaufman cited “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” in his interview.

Duterte’s camp has condemned the arrest’s irregularities, such as the secretive warrant, which was not revealed until 11 March; the rapid transfer within 13 hours; and the diffusion notice’s informal status, contrasted with a Red Notice, which could be cited as insufficient to justify such haste, violating due process.

The misuse of RA 11479 (or the Anti-Terrorism Act of 2020) to bypass extradition hearings further undermines legality, as it is inapplicable to the ICC charges, thus substantiating a “kidnapping” accusation.

The defense might claim that the ICC’s Office of the Prosecutor, led by Karim Khan, conspired with local groups, pointing to the lack, if not absence, of local cases against Duterte as proof of selective targeting.

Kaufman held that the arrest of Duterte was a political hit job and “everyone in the Republic of the Philippines knows it.”