THE HAGUE — In a courtroom where every word carries the weight of history, the third day of hearings at the International Criminal Court unfolded like high drama. What was expected to be a methodical legal exchange transformed into a fierce intellectual duel, as defense counsel Nicholas Kaufman methodically dismantled what he described as the prosecution’s “fantasy common plan.”
But it was not merely law that filled the chamber. It was politics, precedent, morality, and the fragile architecture of international justice itself.
At the center of it all: former Philippine president Rodrigo Duterte — a polarizing figure whose controversial war on drugs has divided a nation and drawn global scrutiny.
And as Kaufman rose to speak, it became clear that this was not simply a defense. It was a counteroffensive.
A Courtroom Charged with Tension
From the outset, Kaufman signaled that he would not merely rebut allegations — he would challenge the very foundation of the prosecution’s theory.
The prosecution argues that Duterte masterminded a state-backed campaign of killings amounting to crimes against humanity. Central to their claim is the notion of a “common plan” — a structured, pyramidal chain of command where orders flowed from the top, resulting in systematic murders.
Kaufman’s response? A categorical rejection.
He invoked precedent from a recent ICC judgment — the 2025 decision in the Abdul Rahman (Ali Kushib) case — emphasizing the requirement that crimes must be a “virtual certainty” flowing from a common plan.
“Virtual certainty,” he repeated deliberately, ensuring the phrase echoed in the chamber.
According to Kaufman, the prosecution’s own numbers undermine that claim. Of the 4,817 individuals allegedly appearing on a supposed “kill list,” only 248 were reported as “neutralized.” Even assuming — for argument’s sake — that “neutralized” meant killed, he said, the percentage stood at roughly five percent.
Five percent, he argued, is not “virtual certainty.”
It is statistical fragility.
The War of Words: “Neutralized” vs. “Killed”
Language became one of the most contested battlegrounds.
The prosecution has pointed to police circulars and speeches where suspects were described as “neutralized,” suggesting this was coded language for execution.
Kaufman countered sharply.
He reminded the chamber that official police documents explicitly require arrests to follow legal protocols and rules of engagement. To interpret the term “neutralized” as inherently murderous, he argued, ignores context — and worse, weaponizes ambiguity.
“It is not enough,” he said in essence, “to string together speeches and circulars and arrive at a predetermined conclusion.”
The implication was clear: rhetoric is not a smoking gun.
The Kill List Controversy
The phrase “kill list” has circulated widely in media narratives surrounding Duterte’s drug war.
But Kaufman sought to deconstruct the term.
The defense insists that what media outlets call a “kill list” was, in fact, a list of high-value targets — suspected criminals. And suspicion, he emphasized, does not equal death sentence.
If thousands were listed but only a fraction died, how could it be argued that death was a foregone conclusion?
The prosecution, he said, has conflated perception with proof.
Automatic Compliance — Or Assumption?
Perhaps the most striking portion of Kaufman’s address targeted the prosecution’s theory of “automatic compliance.”
According to prosecutors, Duterte’s influence was so absolute that subordinates carried out killings as though compelled, their wills effectively controlled.
Kaufman described this as speculative psychology masquerading as evidence.
Witnesses had testified that they “felt” they had no choice but to obey.
Feelings, he argued, are not chains of command.
To sustain a charge of indirect perpetration under the Rome Statute, prosecutors must show a stable, operational structure where orders were transmitted down a defined hierarchy.
No documentary trail.
No direct orders.
No written instructions.
“Unless,” Kaufman quipped dryly, “mental telepathy is being alleged.”
The courtroom registered the remark.
The Insider Witnesses
If the prosecution’s case rests on structure, it also rests heavily on insiders — former alleged members of so-called death squads who now testify against Duterte.
And here, Kaufman sharpened his critique further.
These witnesses, he noted, were granted “limited use” agreements under Article 54(3)(d) of the Rome Statute — meaning their self-incriminating statements cannot be used against them in ICC proceedings.
For the defense, this arrangement poses a profound moral dilemma.
Self-confessed killers, Kaufman argued, are being shielded in exchange for testimony against a former head of state.
He cited commentary from the Max Planck Encyclopedia of International Law, referencing academic perspectives that such agreements are meant to develop leads — not serve as the backbone of a prosecution.
Granting de facto immunity to multiple alleged murderers in order to convict another suspect, he suggested, risks undermining the ICC’s foundational objective: ending impunity.
It was not just a legal argument.
It was an ethical challenge.
A Political Undercurrent
Then came the moment that electrified observers.
Kaufman revisited his earlier reference to a recorded telephone conversation — allegedly involving an individual boasting of acting as a “silent partner” for Philippine President Bongbong Marcos in channeling witnesses to the ICC.
The presidential spokesperson, he said, had questioned his cognitive faculties after he raised the issue.
So he quoted again.
According to the recording, an ICC investigator would provide a list of witnesses and documents needed “to bolster the case against Duterte,” and these would then be routed through government agencies for approval — including pardons where necessary.
Kaufman did not name the speaker. He stated he was forbidden to do so in open session.
But the implication hung in the air: if true, it suggests potential political coordination.
For a court that prides itself on independence, the mere suggestion was explosive.
The 49 Incidents
The prosecution has anchored its case around 49 specific incidents, presenting them as representative of a broader pattern of thousands of killings.
Kaufman warned the chamber against what he described as “grandiose visions.”
Patterns, he argued, cannot substitute for proof in each individual incident.
Under Article 61(7) of the Rome Statute, confirmation of charges requires “substantial grounds to believe” the accused committed the crimes.
The defense insists that threshold has not been met — incident by incident.
He categorized six recurring weaknesses:
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Heavy reliance on cooperating criminal witnesses.
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Layers of hearsay.
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Unidentified victims in several cases.
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Documentary contradictions.
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Conflicting witness accounts.
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Absence of evidence linking hitmen directly to Duterte.
In one example, two witnesses allegedly contradicted each other on the year of an incident, the number of victims, the method of killing, and the identity of perpetrators.
“These aren’t minor inconsistencies,” Kaufman emphasized.
They strike at the core of factual reliability.
The Command Responsibility Question
Notably, the prosecution did not charge Duterte under Article 28 — command responsibility.
Kaufman argued that omission is telling.
To prove command responsibility, prosecutors must establish an ascertainable chain of command and failure to prevent or punish.
The defense contends that chain does not exist — at least not in evidence presented thus far.
He urged the chamber not to requalify the charges under Regulation 55 to include command responsibility.
And if it does, he said, Duterte should be released pending amended filings.
Beyond the Law
As the day drew to a close, the courtroom atmosphere felt less like a procedural hearing and more like a referendum on international justice.
Outside the ICC building in The Hague, demonstrators waved placards — some calling for accountability, others decrying political persecution.
Back in the Philippines, social media crackled with competing narratives. Supporters of Duterte hailed Kaufman’s performance as masterful. Critics insisted the defense was deflecting from the central issue: thousands of lives lost.
Even former presidential legal counsel Salvador Panelo has publicly expressed satisfaction with Kaufman’s arguments, praising what he called thorough research and clarity.
What Comes Next
The pre-trial chamber must now determine whether sufficient grounds exist to confirm the charges and send the case to trial.
It is a decision that carries consequences far beyond one man.
For the ICC, it tests the strength of evidence-based prosecution in politically charged cases.
For the Philippines, it reopens wounds from a brutal campaign that reshaped its social and political landscape.
For Duterte, it could mean the difference between a historic trial and release.
As the judges adjourned the session, one thing was certain:
This case is not merely about statistics or speeches.
It is about the architecture of responsibility in modern governance.
Can fiery rhetoric be equated with criminal orders?
Can insider testimony purchased with limited immunity bear the weight of conviction?
Can political entanglements coexist with judicial impartiality?
The coming weeks will reveal whether the prosecution’s structure stands — or whether, as Kaufman insists, it collapses under the burden of its own assumptions.
In The Hague, the gavel may fall quietly.
But its echo will be heard across continents.