Lawyer N. Kaufman's speech during the ICC's confirmation charges of FPRRD (1st of 2 parts)

 

(Transcript of the Final Submission of Defense Lawyer Nicholas Kaufman at the International Criminal Court during the Confirmation Charges Hearing of former Philippines' president Rodrigo Roa Duterte on Feb. 2026. First of two parts).

"I would like to start off by addressing the requirement that the acts of murder alleged be committed as part of or in themselves constitute a widespread or systematic attack. The second requirement is that these acts of murder be directed against the civilian population. 

With respect to the unique ICC requirement of an organizational policy, I would suggest that this concept has been conflated with the common plan and as such I shall address the matter later in mysubmissions. So to start by reference to the widespread or systematic nature of the attack, I would like to draw your honor's attention to the fact that count one contains nine incidents of murder in one city, Davao, hardly widespread. Miss Robin Croft in her submissions yesterday for the prosecution, sorry, Tuesday, told you that the widespread nature of count one was evidenced by the multitude of bodies in a quarry, a mass grave. Well, the prosecution and the authorities in the Philippines have had years to continue its investigations since the judicial warrant was reimposed. I mean they could have dug up the entire city of Davao but all they have managed to bruise the prosecution on the matter is a reference to Leila de Lima in a Senate committee where she talks about the discovery of a few human remains remains which could have belonged to World War II Japanese soldiers.

Now, Mr. Julian Nichols confidently said, the other day, that you can ignore Rodrigo Duterte's speeches. "Disregard every speech ever made by Mr. Duterte," he said." Throw them all out. There is still ample evidence of the substantial grounds based on the other evidence." That's transcript T4, page 45, lines 5 to six. Helpful advice from no less than the day-to-day prosecutor in charge of this case because we will show that the evidence is not substantial, rather totally inadequate. But in any event, since I can leave no stone unturned, I now turn to those speeches. Now, if there's one thing that I've learned from the domestic media coverage of this case, it is that journalists and their editors have a tendency to fixate on the salacious elements of a person's speeches while ignoring the less interesting parts. 

And so it was with Rodrigo Duterte. The prosecution has had its opportunity to show you a selection of these speeches and seems to believe that the more they show, the greater the chances of convincing your honors to confirm the charges. But what the prosecution has not told the public is that in its document containing the charges which governs these proceedings and nothing else, it has only supplied 20 of these speeches as proof of criminal intent. And as I mentioned in my opening statement, 10 of these speeches, including two referred to by the deputy prosecutor, actually contain an exhaltation to the use of lawful self-defense. Thereafter we found a further 35 speeches which will be found at tab 9 11 to 26 29-35 37- 41 43 to 46 137 and 152.

Now this is obviously not a competition. The point we really merely wish to make is that relying on the former prosecutor's speeches as a means of proving criminal intent is impossible. Now, I'd like to go back to that one speech which I promised the other day to show you. This is uh a speech, the second speech that the deputy prosecutor referred to in his opening statement. And this refers to the responsibility that uh Mr. Duterte said that he would shoulder promising to shield rogue officers from uh prosecution if we may the first of these speeches and I quote what the deputy prosecutor read from this speech. So the police is under the DILG. 

"So I have to believe the story of the police for simply they are my subordinates and I am ultimately responsible for their deeds." Now let's look at what the deputy prosecutor didn't state from the same speech and the order is simply this. "Go out, arrest them if you can, but if there is no peaceful method of doing it and you're presented with violent resistance, thereby playing placing your jeopardy in your life, you shoot well the son of the Mr. Duterte's language obviously, but nevertheless an exhaltation to lawful self-defense.

Mr. Duterte said this: I promised them I will suppress crime and take control of the drug situation which was really running wild in our country today. Make no mistake about it. I repeat again for all and for everybody's consumption. Do not kill if you are not in danger of losing your life. Well, it goes on. You can see it there on the screen. Well, of course, the prosecution knows that we are going to argue that many of these speeches, in fact, the majority of these speeches, I would say, contain this exhaltation to the lawful use of self-defense. And uh the learned council, Mr. Edward Jeremy for the prosecution tried to get around the problem by inventing the novel concept of the elastic mouth which out of one side emanates the nasty truth while out of the other side issues the supposedly disingenuous advice for the police to act in self-defense. 

But I ask your honors and the people of the Philippines listening in today, how many times did you hear the former president state at the beginning of any address that he had the speech of two pages prepared, but to his regret, it didn't come from the heart. And then he would proceed to speak at length, sometimes for an hour or more, in his own uniquely colorful and crusty language, exposing his homespun theories on crime control, swearing a bit here, boasting a bit there, and generally delivering a speech more akin to Finnegan's wake than a Gettysburg address. That does not suggest crafty design, hinted at by Mr. Jeremy. Quite the opposite. Mr. Jeremy's resort to the say one thing mean another thing theory is complete supposition. It is not a legitimate argument because it implies that one cannot rely on anything coming out of Mr. Duterte's mouth and that does not help the case for the prosecution at all. Well, that's about it for the speeches.

Now turning to the civilian population or the target of the attack. Let me say straight away that the prosecution case theory with respect to the definition of the targeted population is to put it extremely politely muddled. In layman's terms, the prosecution has hedged its bets by presenting two alternative propositions. hoping that this pre-trial chamber will settle for one of them. From paragraph 17 to paragraph 20, inclusive of its document containing the charges, the prosecution argues that Mr. Duterte launched an attack on the entire population of the Philippines pursuant to a policy to neutralize persons perceived or alleged to be engaged in crime. 

In paragraph 21, however, this so-called attack is directed not against the civilian population at large, the whole population, but rather against a considerably smaller and nebulous margin of society, namely the alleged criminals themselves. Let us start by dealing with the first scenario namely that the former president whose loyalty and love for his country is and has always beyond been beyond question launched a wholesale attack on the whole population of the Philippines on the entirety of his nation including the very same people who put him into power.

Such a suggestion is not just incomprehensible, it is quite bizarre. The reason for this rather strange assertion, so I submit, is grounded in the prosecution's latest brainstorm on the matter, which set out last year in a brief appealling a decision of this very same pre-trial chamber in the Elhis case. And I do apologize in advance for the rather dull expose which will follow, but I do find it instructive to illustrate the chameleon-like nature of the prosecution's case theory.