‘No smoking gun vs Duterte’ for crimes vs humanity

MANILA, Philippines — There is “no smoking gun” that could prove the link between the “uniquely colorful and crusty” speeches of former president Rodrigo Duterte and the murders he is accused of, his defense lawyer told the International Criminal Court (ICC) yesterday.

“The defense does not disrespect the soul of any deceased person. Nor does it make light of the loss of life. Any criticism made by us today will not be leveled at the loved ones,” Nicholas Kaufman said as he began his presentation on the third day of Duterte’s confirmation hearing in The Hague.

“There is no smoking gun in this case,” Kaufman told the three-judge panel at the ICC.

“Not one witness relevant to any of the 49 incidents with which Mr. Rodrigo Duterte is charged will testify that he received a direct order from the former president to go out and kill someone,” added the lawyer.

Duterte has not attended the proceedings, waiving his right to appear. Kaufman says the 80-year-old is not mentally fit to follow the hearing.

The lack of evidence of a “causal nexus” between Duterte’s words and alleged crimes “should be sufficient to convince any reasonable bystander... that Rodrigo Duterte is innocent of these charges leveled at him,” said Kaufman.

Earlier in the week, the prosecution laid out their case: that Duterte played a “pivotal” role in a campaign of extrajudicial killings that saw thousands murdered.

Duterte personally drew up death lists, incited murders and then boasted about them afterwards, prosecutors alleged.

They showed multiple videos of the former president threatening to murder alleged drug users and joking about his skills in extrajudicial killing.

But Kaufman said the prosecution had “cherry picked” speeches, ignoring what he said were dozens of examples of Duterte stressing the need to act within the law.

“Do not kill if you are not in danger of losing your life,” Kaufman cited Duterte as saying in one speech.

“The prosecution has to show which one of Duterte’s statements, orders or commands were given to a specific individual who then went out, pulled the trigger or communicated the command to someone else who also went out and pulled the trigger – killing one of its 78 identified victims,” said the defense lawyer.

Kaufman also downplayed the thousands of killings seen in official government data released by the Philippine Drug Enforcement Agency.

(The prosecution) neglected to contextualize these numbers by reference to other parts of the same report, which show that in comparison to the number of arrests and operations conducted, the number of deaths are minimal,” he said.

He also assailed the prosecution’s theory of a common plan, wherein Duterte and the other co-perpetrators allegedly agreed to target suspected criminals, particularly those involved in illegal drugs.

“I would suggest that the prosecution cannot point to any particular point in time where there is direct evidence – indicating that even two of their so-called co-perpetrators actually met to agree to such a preposterous scheme. As such, the plan cannot be described as common to anyone,” said Kaufman.

Following the week-long “confirmation of charges” hearing, the three-judge panel has 60 days to decide whether to proceed to a full trial.

‘Theatrics’

For former executive secretary Salvador Medialdea, the prosecution’s presentation at the hearing on the confirmation of charges against Duterte at the ICC was “mere theatrics” and bereft of evidence.

“Personally, I see it as a political matter. There is no evidence, mere theatrics, purely stories, we don’t know what time, when. There is no sufficient definiteness. Probably we don’t know the procedure here in the ICC. Their system is different. But as Filipino lawyers, we expect something different. Give us what we can see and answer correctly,” said Medialdea who is one of the members of Duterte’s Filipino legal team.

The Duterte family has authorized Medialdea and three other lawyers to attend the hearings on confirmation of charges against the former president.

With Medialdea are other former officials of the Duterte administration: Martin Delgra III, Silvestre Bello III, Alfredo Lim Jr., Caesar Dulay and Salvador Panelo.

“During his SONA (State of the Nation Address), what was the most applauded part of his speech? His policies against criminality, against drugs, and yet he is being crucified now,” Medialdea said.

He said he and the other Filipino lawyers met with Kaufman.

“That was merely socials. It’s their job,” he said, referring to Kaufman’s and his team’s presentation before the ICC. “We do not want to intervene with what they’re going to do. Of course, we’re just here to observe, and we’re hoping that we could get a glimpse of our beloved (former) president, but unfortunately, it’s not possible,” he added, belittling the presentation of the prosecution during the first two days of the confirmation of charges hearing.

The former executive secretary said the Duterte administration’s war on drugs was a national policy and should not involve the ICC.

“We’re doing something. It’s a national policy. Other nations should not meddle in what should be done to bring peace and order in our country. We were tired, he (Duterte) was tired. He saw it (war on drugs) as a national alternative, maybe this is our hope to cleanse our country,” Medialdea said.

For his part, Delgra expressed confidence that the defense team of Duterte would be able to present enough evidence to dismiss the case against him.

“Let’s hear what the defense would say in order to debunk the prosecution’s version and hopefully convince the court that the charges are not sufficient to proceed to trial and therefore should be denied.

Unauthorized video

Meanwhile, Davao City based journalist Ben Jason Tesiorna yesterday executed a notarized affidavit claiming he has not authorized the ICC or anybody to present at the confirmation of charges hearing a video he recorded on Dec.19, 2013.

The video, supposedly showing a case of extrajudicial killing during the Duterte administration, was presented by prosecutor Julian Nicholls during the hearing.

In his affidavit, Tesiorna said the English subtitles on the video presented by Nicholls were not part of the original recording. “The subtitle was clearly another unauthorized and illegal tampering of the said video,” he said.

Tesiorna said he owns the copyright of the video and that he has “not authorized anybody, nor the ICC Prosecutor, to show or broadcast the same for any purpose.”

“Since after recording the same video in my personal mobile phone, any and all showing or broadcast thereafter the same video without my permission is considered illegal in any jurisdiction. The video is not public, and therefore, requires my explicit permission,” he said.

He also claimed that he has “not been contacted by any ICC investigator or that Prosecutor who presented it before the ICC PT (pretrial).”

He denied that the video recording was about extrajudicial killing, and that it was about the capability of the newly installed Central 911 CCTV in Davao City.

“The alleged killing shown in the CCTV was not in ‘real-time’ as there was no killing simultaneous or while the CCTV footage was played back or while we were all watching the CCTV footage,” he said.

“I, therefore, deny any association to that tampered and/or spliced video. Mr. Nicholls’ showing and broadcasting worldwide of my video has tainted my reputation and put me and my family in danger, as if I cooperated with him and the ICC prosecution, which I deny as well,” Tesiorna said. – Diana Lhyd Suelto, AFP