Duterte’s lawyer goes after death squad witnesses

THE HAGUE, Netherlands – Rodrigo Duterte’s defense counsel Nicholas Kaufman on Thursday, February 26, asked the judges of the International Criminal Court (ICC) not to give weight to the testimony of self-confessed death squad hitmen.

It became very obvious on Day 3 of the confirmation of charges hearing that the ICC prosecution had indeed given the insider witnesses limited immunity. Limited immunity protects the witness from prosecution of the crimes he admitted to doing, but not from other prosecution, like for perjury.

“I would ask the Chamber to find the statements of those witnesses afforded such limited use to be of negligible evidentiary weight,” said Kaufman.

While the identities of the witnesses are still secret, Kaufman gave away identifying details, such that we know they are members of the Davao Death Squad. Rappler reported in 2021 that one of the self-confessed death squad hitmen, Arturo Lascañas, had been given limited immunity. We’ve also reported that another hitman, Edgar Matobato, had given a testimony to the ICC after fleeing the country.

Lascañas and Matobato first went public in 2017, in separate Senate inquiries, but both of those inquiries were closed without further action. Both went into hiding after. Kaufman said the witnesses were “offered up to the prosecution on a silver platter, and I cannot say by whom in open session.”

Without saying who the witnesses are, Kaufman said they “have been rehoused and given protection at considerable expense to the state parties funding this court.”

Article 54.3 of the Rome Statute empowers the prosecutor to “enter into such agreements, not inconsistent with this Statute, as may be necessary to facilitate the cooperation of a State, intergovernmental organization or person.” Kaufman focused on the clause “not inconsistent with this Statute.”

“To give a get-out-of-jail card, however, to a whole bunch of murderers in order to fix liability to another, albeit pre-selected, individual…is, in my opinion, totally and wholly inconsistent with the object and purpose of the Rome Statute,” said Kaufman.

Matobato and Lascañas have ‘changed’

Kristina Conti, an ICC-accredited assistant to counsel helping victims, said she recognizes this “prosecutorial strategy” in the same way that she said killers must also be investigated back home.

“[The prosecution] has chosen, with reason, to go only after the most responsible. There would be issues if these people are facing charges in the Philippines. We don’t know who the witnesses are and their situations. Hopefully, the Philippine government also sees that to complete the picture, to complete justice for all. If these people killed individuals in the Philippines, they should also be subjects of the investigation,” said Conti.

Priest Albert Alejo, who is among members of the Church who helped victims and witnesses, said he believes that Matobato and Lascañas have already repented.

“Dahil nakita ko, totoo ‘yung pagbabago nila Edgar Matobato. Totoo ‘yung pagbabago ni Arturo Lascañas…. Ngayon, ako, alalay lang. So, meron akong mission, at ‘yung iba, tumutulong sa aking mission. Itong mga taong ito, mayroon ding mission at alalay ako. Tinawag ako para umalalay sa mga taong may mission na nagbagong-loob,” said Alejo, who watched the hearing from the public gallery at The Hague on Thursday.

(Because I saw that Edgar Matobato truly changed. Arturo Lascañas truly changed. I just assisted. So, I have a mission, and others helped me with my mission. But those people also have missions. I have been called to assist people who have a mission to change.)

Kaufman criticized the prosecution’s limited immunity, saying that it appeared now to be a blanket protection.

“Although Mr. [Julian] Nicholls will undoubtedly tell you that these agreements of limited use are not to be understood as the grant of immunity from prosecution, for all intents and purposes, they are, and I am prepared to wager that we will not see even one, not one of these incriminating witnesses in a dock at this court nor in a dock at any court anywhere in the world,” said Kaufman. Nicholls is one of the prosecution’s trial lawyers.

“I do not think that I would be alone either in believing that there is something morally repugnant or even questionable from a public policy standpoint to shield not only one but a number of murderers from prosecution at the ICC just in an attempt to nail Rodrigo Duterte,” said Kaufman.

Kaufman ended his presentation on this note, but before the ICC judges could close the session, Nicholls asked for a closed session. We could see Nicholls saying something, after which Judge Iulia Antoanella Motoc addressed Kaufman. Kaufman answered back. This exchange was brief, and the session was closed for the day.

Kaufman had earlier petitioned the pre-trial chamber to disclose the identities of witnesses, but his request was denied. – Rappler.com