CHIEF Prosecutor Karim Khan of the International Criminal Court (ICC) has told judges of the Pre-Trial Chamber 1 there is no conflict of interest in his continued participation in the crimes against humanity case of former president Rodrigo Duterte.
In his submission dated August 18, Khan, who is currently on leave due to sexual misconduct allegations, said there is no ground for his disqualification from Duterte’s case, thus he is “not seeking to be excused.”
“The Prosecutor notifies the Pre-Trial Chamber that the Prosecutor considers that there is no conflict of interest requiring him to seek to excuse from the situation in the Republic of the Philippines in accordance with Rule 33,” he said in his submission.
“Accordingly, and unless further direction or order is received from the Pre-Trial Chamber, the Prosecutor hereby respectfully notifies the Pre-Trial Chamber that he intends to lead the prosecution of any case arising out of the situation in the Republic of the Philippines,” he added.
Duterte’s lead defense counsel Nicholas Kaufman has asked that Khan “immediately and without delay” be disqualified from further participating in the case of the former president because he “failed to disclose a conflict of grievous of interest.”
Kaufman claimed that as chief prosecutor who oversaw the investigation of the complaint in the Philippines, Khan actively sought exculpatory evidence that could “cast doubt on the testimony provided by the same people whose interests Khan has been charged to protect.”
In his submission, Khan said he was not directly involved in the investigation or interview of witnesses or drug war victims in the Philippines, but participated, pro bono, only in reviewing and presenting the submission to then Prosecutor Fatou Bensouda.
“It is clear that the Prosecutor’s prior involvement in the situation in the Republic of the Philippines was not in a capacity by virtue of which his impartiality might reasonably be doubted and was not such that he could be expected to have formed an opinion on the case in question, that objectively, could adversely affect his impartiality,” he said.
He also said that the situation in the Philippines was investigated by an assigned team within the Office of the Prosecutor under the direct supervision of a Deputy Prosecutor who has oversight of the evidence review.
“In a previous similar case, the Presidency has found that Judge Monageng was not disqualified from sitting in the Pre-Trial Chamber on the Al Bashir case, although Judge Monageng had previously participated in a fact-finding mission to Sudan, which had concluded that war crimes and crimes against humanity had been committed and that there should be further investigation of whether genocide had occurred,” Khan said, adding that international tribunals have also appointed prosecutors who had involvement in prior investigative proceedings, such as David Schwendiman who was appointed as Specialist Prosecutor at the Kosovo Specialist Chamber despite him having been the lead investigator in the Special Investigative Task Force in Kosovo.
Besides, Khan said that he is not aware of any case where the impartiality of the prosecutor has been challenged on the basis of prior involvement in earlier proceedings on behalf of one or more victims or a group representing the interests of victims.
Khan submitted his position on the defense’s petition to disqualify him days after Kaufman told the chamber that they are no longer keen on seeking the chief prosecutor’s removal from the case.
In a submission dated August 15, Kaufman acknowledged that
conflict of interest should be determined by “counsel and by counsel alone,” adding that conflicts of interest may be resolved between counsel and his clients, whether by waiver or withdrawal.
He likewise noted Khan’s prior voluntary notifications and the distinction that he made between his involvement in the Philippine situation and in the present case for the purpose of Article 42 (7) of the Rome Statute. Article 42 (7) prohibits the prosecutor from participating in any matter in which his impartiality might reasonably be doubted on any ground.
