Day 3: What the Duterte Defense Is actually arguing

On Day 3 of the ICC confirmation of charges hearing, the chair reserved for former President Rodrigo Duterte remained pointedly empty.

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His counsel had previously cited “cognitive impairment in multiple domains.” His son, Representative Paolo Duterte, was already calling the proceedings a “trial by imagination” and a “political demolition job”, even alleging that $2 million was distributed for “ICC expenses.” Meanwhile, inside Courtroom I in The Hague, lead defense counsel Nicholas Kaufman was building a sophisticated legal case to make the entire prosecution collapse before a full trial ever begins.

Read Day 1: The drug war goes to The Hague: Inside Duterte’s confirmation of charges hearing

Read Day 2: “Nanlaban” was a lie. The ICC just spent a full day proving it.

Read Day 4: What “Superman” ordered: Five things the ICC hearing proved about Duterte’s war

This is not yet a verdict. Under Article 61 of the Rome Statute, a confirmation of charges hearing is an evidentiary filter — the Pre-Trial Chamber must find “substantial grounds” to believe crimes against humanity were committed. The defense is trying to make sure it never gets that far. We, the Filipino people, have a stake in whether it does.

“Neutralization” was just a memo word. Or was it?

The prosecution’s case rests heavily on Project Double Barrel  (Command Memorandum Circular No. 2016-16 ) and the argument that the term “neutralization” functioned as a coded order for extrajudicial execution. Kaufman called this the prosecution’s “golden thread” and then moved to cut it.

The defense reframed “neutralization” as a globally standard administrative term covering a “spectrum of actions”: arrest, subduing, incapacitation according to law. Government documents, Kaufman argued, show a “coherent and consistent understanding” that neutralization meant to incapacitate suspects lawfully, not to execute them. The prosecution, in his framing, “shoehorned” complex domestic law enforcement into a pre-determined narrative of international crime.

What Kaufman did not answer: why nearly 6,000 people were killed in the first six months of Double Barrel if “neutralization” simply meant arrest.

When “Kill Them All” becomes hyperbole

Duterte’s public statements are among the most explicit on record by any head of state regarding extrajudicial violence. The defense strategy for these is to call them “bluster”, political persona, not operational orders.

Kaufman argued the prosecution “cherry-picked” violent excerpts while ignoring speeches where Duterte explicitly told police to use lethal force only in self-defense. More critically, the defense insists there is no “direct evidentiary bridge” between any specific speech and the 78 named victims at the center of this case. No order to a specific individual who then pulled a specific trigger. No “meeting of the minds” proven between Duterte and subordinates like former PNP chief Ronald “Bato” dela Rosa or former Justice Secretary Vitaliano Aguirre II.

Without that link, Kaufman says the “common plan” theory of shared criminal intent is a legal fiction. The prosecution’s burden is to show it isn’t.

Were the victims even a “civilian population”?

This is the defense’s most legally precise argument and the one with the most dangerous implications for the case.

Crimes against humanity under the Rome Statute require a systematic attack directed against a “civilian population.” Citing the ICC’s 2024 ruling in The Prosecutor v. Al Hassan, Kaufman argued that for a population to be targeted, it must have “objectively discernible characteristics.” The anti-drug campaign, he contended, did not target Filipinos as a population. Itargeted a “subjectively defined subgroup” of alleged criminal offenders.

If the Pre-Trial Chamber accepts this framing, the ICC could lose jurisdiction entirely. The killings would fall back into the domain of Philippine domestic law, the same legal system that, during Duterte’s term, prosecuted virtually no one for them.

What the defense is positioning, in plain language

Before the Pre-Trial Chamber reaches its 60-day decision, here is what the Kaufman defense wants the court to accept:

• That “neutralization” in official Philippine police doctrine meant lawful incapacitation not summary execution.
• That Duterte’s kill rhetoric was political theater, not operational command, and cannot be traced to specific murders.
• That drug war victims were a “subjective subgroup,” not a civilian population, placing the killings outside ICC jurisdiction.
• That data from the UP Dahas Project showing continued drug-related killings under the Marcos administration proves the violence is a systemic problem not a Duterte policy.
• That prosecution witnesses, described by Kaufman as “self-avowed murderers” given “immunity-style” limited-use agreements, are unreliable and uncorroborated.

Back in Manila: The proceedings as “Political Demolition”

While Kaufman argued law in The Hague, the political response back home was already framing the ICC proceedings as persecution rather than accountability. Paolo Duterte alleged that $2 million was distributed for “ICC expenses.” The defense team itself characterized the 2025 arrest of Duterte as an “extrajudicial rendition” and “kidnapping.” Technical redactions fragmented portions of the public broadcast to protect witness identities  and every redaction became another talking point about secrecy.

This is what accountability proceedings look like when they reach leaders who still hold political leverage. The legal arguments inside the courtroom and the political narrative outside it are not separate operations. They are coordinated.

The 78 Names the defense did not dispute

Kaufman’s most sophisticated arguments , the Al Hassan precedent, the statistical data from Dahas, the challenge to witness credibility are aimed at dismantling legal frameworks. They are not aimed at the 78 named victims whose deaths form the factual core of this prosecution.

The Pre-Trial Chamber has 60 days to decide whether this case proceeds. When Representative Duterte calls it a “trial by imagination,” he does not name any of the 78. When the defense argues victims were a “subjective subgroup,” the families of those victims are sitting in that courtroom.

If Philippine officials insist the ICC has no jurisdiction over what happened here, what jurisdiction do they propose instead and what have they done with it?