On eve of pre-trial, Duterte counsel raises issues vs victims’ lawyers, censored case info

THE HAGUE, Netherlands – There are last-minute legal tussles on the eve of the pre-trial hearing of former Philippine president Rodrigo Duterte, with the defense wanting to disqualify the victims’ lawyers and wanting more information uncensored for the upcoming sessions.

Both requests by Duterte’s lead defense counsel Nicholas Kaufman were denied, among the many decisions issued by the pre-trial chamber of the International Criminal Court (ICC) on Friday, January 20, before the court closed for the weekend.

Kaufman had wanted the court to order the prosecution to publicize more information about the charges, even claiming that some identities of the witnesses are “not a secret in the Philippines.” Kaufman also wanted the court to order the prosecution to declare that it can ensure that insider witnesses will be present should the case move to trial.

The pre-trial chamber denied the request, saying that while transparency is a core principle in the ICC, it still wanted to protect the “integrity of the proceedings and the safety of those involved,” according to the decision.

But it’s the other decision that Kaufman is not giving up on. The pre-trial chamber also denied on Friday his request to disqualify Philippine human rights lawyers Joel Butuyan, Gilbert Andres, and their case manager Nicolene Arcaina as court-appointed common legal representatives for victims (CLRVs).

Before the court closed on Friday, Kaufman managed to file a request for leave to appeal the decision — in layman’s terms, to request the permission of the court to appeal the denial.

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Disqualification request

The disqualification request roots from Kaufman’s claim that there is an impediment to representation on the part of the three lawyers. Under the ICC’s code of conduct for counsels, lawyers can be disqualified from a case if there were “impediments” to them effectively representing their clients — in this case, the victims.

The pleadings and decision are heavily redacted, only suggesting that the impediment has to do with Arcaina, the executive director of the Ateneo Human Rights Center, and a former lawyer with Butuyan and Andres in the Center for International Law (CenterLaw). CenterLaw represented many drug war victims in local cases in the Philippines, as well as challenged the constitutionality of the drug war in the Supreme Court. (That case is still pending.)

When the ICC denied Kaufman’s request, it said the rules under the code cannot apply to Arcaina because she is not a counsel or an associate counsel, but a case manager. The decision also pointed to the third paragraph of Article 12, which could mean that the disqualification request refers to the third “impediment” or the clause that prohibits a counsel’s participation where “there is a substantial probability that counsel or an associate of counsel will be called to appear as a witness.”

Rappler has reached out to Butuyan and Andres for their statements.

“I’m not entitled to divulge to you the nature of the impediment to representation because of various legal matters,” Kaufman told Rappler in an interview on Friday here.

In his last-minute leave request, Kaufman said he would not oppose Butuyan and Andres appearing next week for the victims since it’s too close to the date of the hearings.

In earlier pleadings, Butuyan and Andres said there were no impediments to Arcaina’s role as case manager, and that both of them are “familiar with the context of the alleged crimes, competent to represent victims before the Court, retain a field presence and proximity to victims, and are willing to work with any other legal representative.”

The confirmation of charges hearing will take place without Duterte’s appearance starting on Monday, February 23, and will last for four days until February 27. There will not be a hearing on February 25. – Rappler.com