by Diego Morra
Talk of a defense lawyer who loses his case, all because his legal theory fails to reflect on established facts, and ignores the basic understanding of the meanings of police lingo, like “neutralization” doesn’t mean “striking fear” among “suspects” or effecting arrests but plain and simple elimination, the way “wasting” in gangster lexicon means murder and not simply being neutered. A highly-paid defense counsel (at P150-million monthly, reports say) is not expected to merely parrot the wrong justifications advanced by his client to normalize mass murder.
In his recent presentation before the International Criminal Court (ICC) in The Hague, lawyer Nicholas Kaufman dismissed the presentation of the lawyers for the complaining relatives of the victims of the “tokhang” drug war as launched by detained ex-president Rodrigo Duterte as “weak” and cannot sustain a conviction. There was no smoking gun, and there purportedly was no showing that Duterte’s direct orders led to the extrajudicial killings (EJKs) of thousands of suspected drug users, pushers as well as young children and relatives of the victims. In Davao City, a seven-year-old boy was shot pointblank for “stealing” while four brothers were murdered in succession after they were accused of committing petty crimes.
Yet, what took the goat of seasoned barristers was the declaration of the British-Israeli lawyer that the killings in police anti-drug operations were justified since they were committed in self-defense. This is like taking hook, line and sinker the declaration of Duterte that all the targets were encouraged to fight back to justify the carnage. The prosecution could not believe the defense would take such a blanket, senseless excuse to assail the evidence shown to Pre Trial Chamber 1 (PTC 1) of the ICC. Kaufman dismissed the killings as “minimal,” but the admitted 6,700 deaths of civilians in the “tokhang” war or the estimated 30,000 murders spread over Duterte’s presidential term were not few. The maximum of 30,000 is already more than 40% of the Palestinians killed in Gaza by Israeli bombs and bullets. Human life is so precious to Filipinos that they do not abide by the Hannibal Directive (also known as Hannibal Procedure or Protocol of the Jews enunciated in 1986), which justifies killing Israeli soldiers in the face of imminent capture by the enemy. IsraeIis summed up the principle as “better dead than abducted.”
Whether 6,000 or 30,000, aside from the 500 more cases that would pad the “tokhang” death toll, the number narrated by the prosecution was certainly not minimal. The maximum number is already 54% of the total death toll among Ukrainian soldiers in the five years of Russian invasion. Kaufman must be reminded that reports from Davao City also showed that a maximum of 10,000 people were killed in Duterte’s scorched-earth policy against “criminals” and his political enemies when he was city mayor. At any rate, we can suffer fools gladly, with facts being distorted and narratives edited to pander to the whims of those who are sure to lose in full-blown trials.
In contrast to the presentation of the prosecution, Kaufman advanced the theory that the civilian population was not targeted. Without sounding risible, the Duterte defense counsel argued that the civilian population was not targeted since only drug suspects were subjected to the bloody campaign. No prosecutor argued that the entire civilian population was targeted at all. There is confusion here since the argument is that the Duterte drug war did not follow basic police procedures and gave short shrift to Miranda rights, the rules of engagement and relied on false intelligence reports churned out by the police and their hit men to comply with Duterte’s orders. How would Kaufman consider the number of victims? Just a few and the fatalities not killed by police and DDS who enjoyed numerical superiority and logistical advantage?
Curiously, the highly-regarded Kaufman cherry-picked his evidence, threw away the declarations of the garrulous Duterte that he was nationalizing the DDS and replicating the “success” of the DDS in Davao to all urban areas. After this, mayors started dying at their homes and in their detention cells, couples were mowed down in Aklan and elsewhere, the result of being denounced as drug kingpins who have lost the right to due process and their right to life. Kaufman’s tack is lame, beef-witted if you may, since the Duterte pitted armed men in uniform or civilian clothes against the 99% of the unarmed “suspects,” like Kian de los Santos. Another piece of “exonerating” evidence cited by him was the Duterte advice that policemen must only kill if their lives were threatened. The offer of blanket protection, the bounty proffered to obedient gunmen, the fact that for six years the regime threw away the murder cases against the DDS in the trash can did not matter for Kaufman.
Kaufman criticized trial lawyer Robynne Croft for arguing that the term “neutralization” was a “euphemism for murder” in the Command Memorandum Circular (CMC) 16-2016, which was crafted to implement “Project: Double Barrel.” He insisted that the prosecution failed to establish causal links between Duterte and the deaths, insisting in his pained argument that no witness claimed having been ordered by Duterte to kill. Thus, his theory that not a single witness in the 49 murder cases heard a direct order to kill. By setting up the DDS, establishing a reward system with now Senator Bong Go as paymaster and getting weekly reports about the kills, it is clear that no direct Duterte order is needed to implement the bloody campaign.
The issue at the heart of the crime against humanity lodged against Duterte and his alleged co-conspirators is that they violated due process, dispensed with the Universal Declaration of Human Rights (UDHR) and trampled upon legal procedures in handling the cases of the victims. With the campaign structure established and operational guidelines known by the police and DDS alike, is there any need fior Duterte to even issue direct orders to kill? Hitler’s orders were not required to incinerate 6-million Jews in World War II. Duterte, a Hitler fan, does not need to issue 30,000 orders to kill defenseless Filipinos. Legal scholars find it strange why Kaufman still advances facile legal points in his presentation. For his edification, “neutralization” in Philippine police parlance means elimination. And cops with cold, cold hearts do it regularly, with manufactured evidence to prove that the hapless victims fought back or “nanlaban.” Kaufman has helped the prosecution in no small measure.#
