THE HAGUE, Netherlands – Rodrigo Duterte’s lead defense counsel Nicholas Kaufman presented police reports on the final day of the pre-trial proceedings on Friday, February 27, to boost his case that the victims who were killed during the drug war resisted with a gun and forced cops to shoot back in self-defense.

“Across the Count 2 incidents, there exist contemporaneous documents, whether it be arrest warrants, operational records, or firearms recovery reports, all of which reflect legitimate police operations that escalated into exchanges of gunfire,” said Kaufman, referring to the count covering killings of high-value targets.

Kaufman said the same about Count 3 incidents, or those killed under the name of Oplan TokHang. Essentially, Kaufman presented to the International Criminal Court the official Duterte government line of “nanlaban” or fighting back.

The prosecution’s trial lawyer, Julian Nicholls, immediately disputed the reliability of those police reports when it was his turn to deliver closing statements.

“He talked about police reports and that there has to be a presumption of regularity. You have to accept these at face value…. As we’ve stated in our brief, at trial, we will show, through witness testimony, that these statements, these police reports, were often falsified,” said Nicholls.

Kaufman said “as a basic principle…a state document with the appropriate stamps and signatures and what have you, is prima facie reliable, or in other words, it carries a presumption of administrative regularity.”

The Philippine Supreme Court had access to hundreds of gigabytes worth of police files, and it has had close to 10 years to determine whether these reports were regular or not. But save for a mini-resolution in 2018 that pronounced the possibility of “state-sponsored killings,” the High Court had not acted decisively. Kaufman managed to use the indecision to boost Duterte’s defense.

In one of the filings to the Supreme Court, one of the petitioners, the Free Legal Assistance Group, provided proof that police reports were merely copy-pasted to the extent that suspects who fought back said the same phrase before resisting.

Investigation by independent groups

Aside from reports of human rights organizations and journalists, the United Nations Office of the High Commissioner for Human Rights said in 2020 that documents suggest police officers planted evidence in crime scenes, which they then reflected back in these disputed police reports.

Kaufman, in his opening statement, accused journalists and the whole of civil society of colluding. Asked why he always hit the media in his presentations, Kaufman later said in a chance interview: “Why does the media always criticize my client? Full stop. End of story. Next question.”

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“If you didn’t know any better, wow, that’s a compelling argument, but this is the challenge to anybody who watches this: they need to contextualize Kaufman’s claims. Because we know that these police reports during the drug war cannot be trusted fully,” said Carlos Conde, who investigated drug war killings in his time as Philippine researcher of the Human Rights Watch. Conde followed the hearings from inside the gallery of the International Criminal Court.

Kaufman also repeated throughout the hearings that the same evidence incriminating to Duterte also exculpates or absolves him, such as government circulars that instruct state agents to follow the law. Nicholls said it isn’t the first time in an international criminal trial that suspects showed proof of their legal orders.

“Mr. Kaufman will know this, because we both worked together at the ICTY (International Criminal Tribunal for the former Yugoslavia), during the trials for Srebrenica and the other Bosnian Serb army crimes, every single order that turned out to be criminal, virtually every single order…from General [Ratko] Mladic down the chain — respect the Geneva Conventions, treat prisoners of war properly, treat civilians properly in accord with the Geneva Conventions. That was in virtually every order, and it didn’t mean anything,” said Nicholls.

“That was only to build a veneer of legality, to create an impression of legality, and to give his lawyers something to say when this day came. And that’s exactly what has happened,” said Nicholls.

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– Rappler.com