EXPLAINER: Victims’ legal team in ICC intact, defense ‘team’ questioned

There is no longer a dispute on the composition of the victims’ legal team in Rodrigo Duterte’s case at the International Criminal Court (ICC), and in a reversal of fortunes, it’s the defense team composition that’s being questioned by the prosecution.

On Monday, March 16, lead defense lawyer Nicholas Kaufman withdrew his request to be allowed to challenge the appointment of Filipino lawyers to the victims’ legal team. Without expounding on his reasons, Kaufman said the withdrawal is “without prejudice to any further recourse available to the Defence in order to raise the issue of what it perceives to be an impediment to representation on the part of the Common Legal Representatives for Victims.”

Under the Rome Statute, impediment to representation is prohibited, and one of the elements is that a person who might potentially be a witness cannot be a counsel. Kaufman had alleged that the victims’ case manager, Filipino lawyer Nicolene Arcaina, has such impediment. The pre-trial chamber had already rejected Kaufman’s request in February, saying that the rule only applies to people acting as counsels, not to case managers.

Before Kaufman withdrew his request, which sought to disqualify not just Arcaina but the two Filipino counsels Joel Butuyan and Gilbert Andres, the victims’ lawyers said such request was just a delaying tactic.

“Defense Counsel has revealed a penchant, or perhaps more fittingly a strategy, for tactics that simply delay and dramatize the proceedings, before they even occur,” said Butuyan and Andres in their reply to Kaufman’s request. That is until Kaufman withdrew it, which means the Common Legal Representatives for Victims (CLRVs) team is intact. The team includes Italian lawyer Paolina Massidda, who is the assigned lawyer for victims from the ICC’s Office of the Public Counsel for Victims (OPCV), which is like the Public Attorneys Office (PAO) in the Philippines.

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Six lawyers on Duterte side

Meantime, it’s the defense “team” that’s being questioned, particularly because Kaufman made a statement that he is “ably assisted and supported by” six lawyers sent by the Duterte family. Most of them were members of the Cabinet when Duterte was president — Salvador Medialdea (former executive secretary), Salvador Panelo (former presidential legal counsel), Silvestre Bello (former labor secretary), Martin Delgra (former Land Transportation Franchising and Regulatory Board chief), Caesar Dulay (former tax commissioner), and Alfredo Lim Jr.

The prosecution wanted clarification on this, fearing that sensitive information, especially about the witnesses, are being disclosed to people who are not members of the court-appointed defense team, much less to people who held high positions in the Duterte government. The prosecution sent a filing on March 10, requesting the pre-trial chamber that Kaufman should state on record that none of the six lawyers have had, or will have, access to confidential disclosures.

At this point, legal counsels approved by the court have access to evidence, including the profiles and depositions of star witnesses, whose identities are still protected up to now. We heard both teams refer to these witnesses by codes during the confirmation of charges hearings.

“These individuals are closely connected to Mr Duterte. Some worked on Mr Duterte’s presidential campaign, during which he announced his intention to implement his common plan to kill alleged criminals nationwide,” said the prosecution.

“The Prosecution therefore requires clarification on whether these individuals are in fact members of Mr. Duterte’s defence team in order to conduct thorough risk assessments to potentially oppose their appointment,” the prosecution added.

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Qualifications

Besides, none of the six lawyers sent by Duterte family are accredited counsels of the ICC. To practice before the ICC, one must be a member of its independent list of counsels, vetted by the Court to make sure they meet the required criteria such as having “established competence in international or criminal law and procedure.” If the suspect chooses a counsel not on the list, but meets the criteria, that counsel must be willing to be part of the list. Assistants to counsel are vetted if they are have either 5 years relevant experience in criminal proceedings, or specific competence in international or criminal law and procedure.

Aside from accrediting someone to practice before the ICC, the court is also strict about who will qualify to be on any of the legal teams, making sure there is not an ounce of conflict. It previously disqualified chief prosecutor Karim Khan from the Duterte case, citing conflict of interest because Khan interviewed a death squad witness, and helped send a communication to the ICC, when he was a private lawyer.

This was important to the ICC because the prosecution has a responsibility to find exculpatory evidence, or evidence that could absolve Duterte. This responsibility is of equal weight as finding incriminating evidence.

The right to access to exculpatory evidence is partly why Kaufman also wanted to disqualify the victims’ Filipino lawyers. In their response, however, Butuyan and Andres said Kaufman “has not proven that alleged exculpatory evidence is purportedly being withheld” from them.

Kaufman’s current accredited team members include French lawyer Dov Jacobs, who specializes on jurisdiction, which is a matter still being appealed by the defense team. Kaufman was contracted by Duterte specifically for the confirmation of charges, and it remains to be seen whether he will still be the defense lawyer if and when the case goes to trial. – Rappler.com