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00:15:17And I quote.
00:24:41Thank you,
00:32:04Here we are.
00:32:19In 1881, the pretrial chamber defined a civilian population as a group sharing, and I quote, distinguishing features, and added
00:32:31as follows, and I quote again,
00:32:34The prosecutor will need to demonstrate, to the standard of proof applicable, that the attack was directed against the civilian
00:32:43population as a whole, and not merely against randomly selected individuals.
00:32:52So let us ask ourselves whether the alleged attack in this case was directed at the population as a whole,
00:33:00or at a subjectively defined subgroup of perceived or alleged criminal offenders.
00:33:09The minute the distinguishing features of the civilian population in question are defined through the application of subjective criteria, the
00:33:21targeting process becomes completely random.
00:33:25The targeted civilians are perceived criminals, but perceived to be so by whom?
00:33:33Is it not the case that one man's despicable criminal is another person's righteous saint?
00:33:40In fact, have we not heard from the civil society that many of the victims were not drug pushers or
00:33:48criminals, but innocent members of the local community?
00:33:54To me, and as a matter of logic, it would appear that the targeted population in the Duterte case was
00:34:02selected randomly.
00:34:04Even according to the prosecution's own witnesses, who talk about quotas of neutralization that had to be met, and their
00:34:14motives for target selection, which had frequently nothing to do with suspected criminality, but rather personal vendetta, or on one
00:34:27occasion, just because the victim had cheated at cards.
00:34:40With that, Madam President, Your Honours, I conclude the chapeau or contextual requirements of crimes against humanity, and I will
00:34:50now turn to the modes of liability or means of perpetration.
00:34:56Now, if Rodrigo Duterte was so shamelessly brazen as to broadcast his murderous intent in public ever since he was
00:35:15the mayor of Davao,
00:35:16Why did it take the ICC prosecution almost four years to open an investigation after Rodrigo Duterte pulled his country
00:35:28out of the International Criminal Court?
00:35:31After all, why did the ICC prosecution not just save itself all the hassle of its jurisdictional problem, a fundamental
00:35:42issue that still plagues it and remains to be resolved by the Appeals Chamber?
00:35:47We won't talk about that today, obviously.
00:35:49But why did the prosecution not seek to initiate its official investigation within the one-year withdrawal period, especially given
00:36:01the fact that Mr. Karim Khan, the victim's representative embedded in the role of chief prosecutor,
00:36:09had received judicial authorization to interview at least one of the criminal cooperating witnesses, substantiating the crimes of the Davao
00:36:20mayoral period?
00:36:24Well, for me, at any rate, it didn't take too long for the penny to drop.
00:36:30As I mentioned in my opening statement, the prosecution knows that it is not enough simply to assert that Rodrigo
00:36:41Duterte said outrageous things and that deaths occurred,
00:36:46and so, as a result, he must be criminally responsible.
00:36:52There is a requirement for what is called a causal nexus.
00:36:56The prosecution has to show which one of Duterte's statements, orders, or commands were given to a specific individual
00:37:06who then went out and pulled the trigger or communicated the command to someone else who also went out and
00:37:15pulled the trigger,
00:37:16killing one of its 78 identified victims.
00:37:22That would have been the classical way to prove a causal link between stuff that came out of Rodrigo Duterte's
00:37:31mouth
00:37:31and the deaths pertinent to the case.
00:37:36That would have been ordering under Article 25.3b.
00:37:43But the prosecution cannot show such a causal link.
00:37:48They've never been able to do that.
00:37:51They show you a lovely pyramid.
00:37:55It's on the screen.
00:37:56With Duterte at the top, the co-perpetrators underneath, the DDS handlers underneath them,
00:38:05and the hitmen perpetrators at the very bottom.
00:38:09To quote Mr. Julian Nichols, how cute.
00:38:14But what the learned prosecutors can't show you is the connecting line between Duterte at the top
00:38:21and the next level down, comprising the so-called co-perpetrators.
00:38:28I hope Ms. Croft will forgive me for vandalizing her screenshot, but there you have it.
00:38:34That is where the apex slips off the pyramid of Giza.
00:38:39The most they can do is allege that their cooperating witnesses who pulled the trigger
00:38:45and whose credibility is about as worthless as a devalued peso
00:38:51understood that killing is what Duterte would have wanted.
00:38:58or that they had no choice but to comply
00:39:02because that was what was expected of them by their handlers
00:39:06or other such similar expressions of a totally subjective sense of obligation.
00:39:16But as they know, not one of the 49 incidents
00:39:22mentioned in the document containing the charges
00:39:25manifests such a causal link
00:39:28between a speech,
00:39:30an order,
00:39:31and one of the charged incidents.
00:39:33I will state it for the record.
00:39:35In fact, I will state it a number of times
00:39:37during my submissions.
00:39:40There is no smoking gun
00:39:42in this case.
00:39:44And that is not for want
00:39:46of a desperate attempt
00:39:48to find one on the part of the prosecution
00:39:50with all their leading questions
00:39:53when they interviewed
00:39:55their criminal cooperating witnesses.
00:39:59Not one witness relevant to any of the 49 incidents
00:40:04with which Mr. Rodrigo Duterte is charged
00:40:07will testify that he received a direct order
00:40:10from the former president to go out and kill someone.
00:40:15Let us just digest this.
00:40:18All those speeches
00:40:19where the former president
00:40:21made various threats to kill
00:40:23but not one demonstrable incident
00:40:27set out in the prosecution's document
00:40:29containing the charges
00:40:30which details an act of murder
00:40:33committed as a result of a direct order
00:40:36given by him.
00:40:38This in and of itself
00:40:41should be sufficient to convince
00:40:43any reasonable bystander
00:40:45observing the conduct of these proceedings
00:40:48that Rodrigo Duterte
00:40:50is innocent of these charges
00:40:53leveled at him.
00:40:56It is for this reason
00:40:57and because of the complete lack
00:41:00of reliable cooperating witnesses
00:41:02that the prosecution has alleged
00:41:05not one
00:41:06but a plethora of theories
00:41:08as to the means of perpetration
00:41:11to link the crimes
00:41:13allegedly committed
00:41:14to the person
00:41:17who is far removed
00:41:18from the incidents of murder
00:41:20and who has been targeted
00:41:22for prosecution
00:41:23and I say
00:41:24targeted for prosecution.
00:41:28Normally
00:41:29I would say
00:41:31that such a multiplicity
00:41:33of legal theories
00:41:34speaks to a lack of clarity
00:41:37and prosecutorial uncertainty.
00:41:41Indeed
00:41:42some of these modes
00:41:43of liability
00:41:44as pleaded
00:41:45contradict each other
00:41:47as a matter of logic.
00:41:49Nonetheless
00:41:50I would like to make
00:41:53the following
00:41:53general observation.
00:41:56As the defence
00:41:58has progressively reviewed
00:41:59the massive databases
00:42:01of evidence disclosed
00:42:02it has become
00:42:04increasingly apparent
00:42:06that given the absence
00:42:07of direct evidence
00:42:09directly implicating
00:42:12Rodrigo Duterte
00:42:13or even indicating
00:42:15his participation
00:42:16in
00:42:17or control
00:42:19over
00:42:19any one
00:42:20of the 49 incidents
00:42:23alleged in the document
00:42:24containing the charges
00:42:25the prosecution
00:42:27has resorted
00:42:28to papering
00:42:30over the cracks
00:42:30with human rights reports
00:42:33press statements
00:42:36here say
00:42:37and of course
00:42:39Mr. Duterte's
00:42:41bluster
00:42:42and political
00:42:43hyperbole.
00:42:45And where
00:42:46these documents
00:42:47are not suffice
00:42:49the prosecution
00:42:51has resorted
00:42:52to the time
00:42:53worn theory
00:42:54of indirect
00:42:56co-perpetration
00:42:57article 25
00:42:593A
00:43:02of which
00:43:03the parameters
00:43:03I would respectfully
00:43:04submit
00:43:05are still
00:43:06subject to dispute.
00:43:09So
00:43:10I will now
00:43:11turn
00:43:11to this mode
00:43:12of liability
00:43:13which is
00:43:14the principal
00:43:14mode of liability
00:43:16levelled
00:43:17at Rodrigo
00:43:18Duterte.
00:43:29As we all know
00:43:29in order to prove
00:43:31criminal liability
00:43:32through indirect
00:43:34co-perpetration
00:43:36there is a need
00:43:37to show
00:43:38a common plan
00:43:39upon which
00:43:40the suspect
00:43:41and his co-perpetrators
00:43:43because you need
00:43:44co-perpetrators
00:43:45for indirect
00:43:45co-perpetration
00:43:47a plan
00:43:48on which
00:43:49they mutually
00:43:50agreed
00:43:51and that
00:43:52common plan
00:43:54must
00:43:55without exception
00:43:56have a criminal
00:43:57element
00:43:59as I have
00:44:00already stated
00:44:01the only plan
00:44:03in play
00:44:03was not just
00:44:05totally legitimate
00:44:06in nature
00:44:06but was
00:44:07in addition
00:44:08wildly supported
00:44:10by the
00:44:11Filipino
00:44:11electorate
00:44:12which ensured
00:44:14that Mayor
00:44:15Rodrigo Duterte's
00:44:16governance
00:44:16of Davao City
00:44:17throughout the years
00:44:19would thereafter
00:44:20put him
00:44:21into the
00:44:21Maracanian.
00:44:24According
00:44:25to the prosecution
00:44:26the criminality
00:44:28of the common
00:44:29plan
00:44:29expressed
00:44:30itself
00:44:31as follows
00:44:32and I quote
00:44:33from their
00:44:34documentation
00:44:36an agreement
00:44:38to neutralize
00:44:39to neutralize
00:44:40alleged criminals
00:44:42in the Philippines
00:44:43including
00:44:45those associated
00:44:47with drugs
00:44:48through violent
00:44:50crimes
00:44:50including
00:44:51murder.
00:44:53Well that really
00:44:54covered all options
00:44:54there.
00:44:55The existence
00:44:57of such
00:44:58a criminal
00:44:59plan
00:44:59is of course
00:45:01entirely
00:45:02preposterous
00:45:03and I should
00:45:04say totally
00:45:05denied.
00:45:07I would suggest
00:45:08that the prosecution
00:45:09cannot point
00:45:10to any
00:45:11particular point
00:45:12in time
00:45:12where there is
00:45:14direct evidence
00:45:16indicating
00:45:17that even
00:45:18two
00:45:19of their
00:45:20so-called
00:45:21co-perpetrators
00:45:22actually
00:45:23met
00:45:24to agree
00:45:25to such
00:45:25a preposterous
00:45:26scheme.
00:45:28As such
00:45:29the plan
00:45:30cannot be
00:45:32described
00:45:32as common
00:45:33to anyone.
00:45:37If anything
00:45:37it's an
00:45:39artificial
00:45:39construct
00:45:40derived
00:45:41from the
00:45:41ten assertions
00:45:42which are
00:45:43set out
00:45:44in paragraphs
00:45:4524
00:45:46to 33
00:45:48inclusive
00:45:48of the
00:45:49prosecution's
00:45:50pre-confirmation
00:45:51brief
00:45:52all of
00:45:54which
00:45:54comprise
00:45:55circumstantial
00:45:56evidence
00:45:57of the
00:45:58lowest quality
00:45:59pointing to
00:46:00a mutually
00:46:01agreed
00:46:02design
00:46:02which
00:46:04exists in
00:46:04the
00:46:04prosecution's
00:46:05mind
00:46:05and nowhere
00:46:06else.
00:46:09Of course
00:46:10there is
00:46:11nothing wrong
00:46:11with construing
00:46:12the existence
00:46:13of a common
00:46:14criminal plan
00:46:15from circumstantial
00:46:16data.
00:46:18But the
00:46:19cardinal rule
00:46:20of such
00:46:20a category
00:46:21of evidence
00:46:21is that
00:46:23the
00:46:23incriminating
00:46:23facts
00:46:25derived
00:46:26therefrom
00:46:26must be
00:46:28the only
00:46:28reasonable
00:46:29inference
00:46:30in the
00:46:31circumstances.
00:46:33What we
00:46:33can say
00:46:34with a
00:46:35degree of
00:46:36certainty
00:46:36which reaches
00:46:38more
00:46:38than a
00:46:39substantial
00:46:40degree of
00:46:41certainty
00:46:41is that
00:46:43no inference
00:46:44can be
00:46:44drawn
00:46:45from the
00:46:46comments
00:46:46of crime
00:46:47based
00:46:47perpetrators
00:46:49and to
00:46:49hammer the
00:46:50point home
00:46:50I would
00:46:52like to
00:46:52screen you
00:46:53just a
00:46:53selection
00:46:54of excerpts
00:46:55taken from
00:46:57the interviews
00:46:57of a number
00:46:58of the
00:46:59prosecution's
00:46:59criminal
00:47:00cooperating
00:47:01witnesses
00:47:03witnesses
00:47:05or witnesses
00:47:25interviewee
00:47:26at least more
00:47:28or less
00:47:28than 10
00:47:29by
00:47:29best
00:47:29operations
00:47:31where
00:47:32somebody
00:47:32was shot
00:47:33asked the
00:47:33interviewer
00:47:34yes sir
00:47:34interviewer
00:47:36one
00:47:36okay
00:47:37and on
00:47:38those 10
00:47:38occasions
00:47:39was the
00:47:40shooting
00:47:40justified
00:47:42interviewee
00:47:42yes sir
00:47:44number
00:47:45two
00:47:48so
00:47:49if he
00:47:50shot at
00:47:51us
00:47:52we would
00:47:53also shoot
00:47:53back
00:47:54but if
00:47:55he were
00:47:55to
00:47:56stab at
00:47:56us
00:47:56with a
00:47:56knife
00:47:57then we
00:47:58wouldn't
00:47:59we wouldn't
00:48:00shoot a
00:48:00person that
00:48:01was holding
00:48:02a knife
00:48:05and the
00:48:06third one
00:48:08witnesses
00:48:09who said
00:48:10the
00:48:11PNP
00:48:11never said
00:48:12killed
00:48:13those
00:48:13people
00:48:15another
00:48:15quote
00:48:16from what
00:48:17I recall
00:48:17of the
00:48:17incidents
00:48:18that I
00:48:19was at
00:48:19all of
00:48:20them had
00:48:21guns
00:48:21and they
00:48:22were pointing
00:48:23them at
00:48:23the
00:48:23pusher
00:48:23buyers
00:48:24or they
00:48:25were pointing
00:48:25their guns
00:48:26at the
00:48:26pusher
00:48:26buyers
00:48:28at the
00:48:29operations
00:48:29I was
00:48:30at
00:48:30I'm
00:48:31talking
00:48:31about
00:48:32the
00:48:32operations
00:48:32I was
00:48:33at
00:48:33the
00:48:34reason
00:48:34that they
00:48:34were
00:48:34killed
00:48:35was because
00:48:36they were
00:48:36pointing
00:48:37their guns
00:48:38at us
00:48:38or they
00:48:39were firing
00:48:40their guns
00:48:40at the
00:48:40pusher
00:48:41buyers
00:48:43that's
00:48:44from the
00:48:44prosecution's
00:48:45own
00:48:45witnesses
00:48:47now
00:48:48let us
00:48:49analyze
00:48:49the other
00:48:50circumstances
00:48:51as set
00:48:53out in
00:48:53paragraphs
00:48:5424
00:48:55to 33
00:48:56inclusive
00:48:57to see
00:48:59whether a
00:48:59meeting of
00:49:00minds
00:49:00between
00:49:00co-perpetrators
00:49:02is indeed
00:49:03the only
00:49:05reasonable
00:49:06inference
00:49:06in the
00:49:07circumstances
00:49:10the first
00:49:11indication
00:49:12and that
00:49:14is that
00:49:14in the
00:49:15late
00:49:151980s
00:49:16in other
00:49:17words
00:49:1720 years
00:49:19before the
00:49:20charges
00:49:20in this
00:49:21case
00:49:21Mayor
00:49:23Duterte
00:49:23allegedly
00:49:24instructed
00:49:25civilian
00:49:26confidants
00:49:27and local
00:49:29police
00:49:29to
00:49:30neutralize
00:49:31and I
00:49:32stress
00:49:33to
00:49:33neutralize
00:49:34and not
00:49:36to kill
00:49:36criminals
00:49:39that's
00:49:39what's
00:49:40stated in
00:49:40the
00:49:40PCB
00:49:41and that
00:49:42he provided
00:49:42weapons
00:49:43and funds
00:49:45for this
00:49:45purpose
00:49:47now I
00:49:48would say
00:49:49that there
00:49:49is nothing
00:49:49untoward
00:49:50in providing
00:49:51policemen
00:49:52or civil
00:49:53volunteers
00:49:53with weapons
00:49:54to carry
00:49:55out their
00:49:55lawful
00:49:55duties
00:49:56that's
00:49:57what happens
00:49:57in my
00:49:58country
00:50:00the
00:50:00prosecution
00:50:01has not
00:50:02shown us
00:50:03how arming
00:50:03civilian
00:50:04volunteers
00:50:04is actually
00:50:05illegal
00:50:07and the
00:50:07burden of
00:50:08proof
00:50:08rests on
00:50:09it
00:50:10after all
00:50:11one does
00:50:12not fight
00:50:13crime
00:50:13with kind
00:50:14words
00:50:14and gentle
00:50:15admonishments
00:50:18the fact
00:50:19that these
00:50:19conscripted
00:50:20civilians
00:50:21understood
00:50:22the words
00:50:23to neutralize
00:50:24to mean
00:50:25to murder
00:50:26is not
00:50:27something
00:50:28for which
00:50:28Rodrigo
00:50:29Duterte
00:50:30must be
00:50:31held
00:50:31responsible
00:50:32trust me
00:50:33had
00:50:35anyone
00:50:36of the
00:50:37unreliable
00:50:37insider
00:50:38criminal
00:50:39cooperating
00:50:40witnesses
00:50:41substantiating
00:50:43the assertions
00:50:43made in
00:50:44paragraph
00:50:4424
00:50:45of the
00:50:46pre-confirmation
00:50:46brief
00:50:47said
00:50:48that
00:50:49Rodrigo
00:50:49Duterte
00:50:50gave a
00:50:50direct
00:50:51order
00:50:51to murder
00:50:53one of
00:50:53the 78
00:50:54victims
00:50:54the
00:50:55prosecution's
00:50:56lawyers
00:50:57would have
00:50:58written it
00:50:59into their
00:51:00charges
00:51:00point
00:51:01blank
00:51:01bank
00:51:03but they
00:51:04did not
00:51:06and furthermore
00:51:08any false
00:51:09allegation
00:51:10made by
00:51:12cooperating
00:51:13criminal
00:51:14witnesses
00:51:14made years
00:51:16before the
00:51:17charged
00:51:18incidents
00:51:18and without
00:51:20the time
00:51:21frame of
00:51:22the case
00:51:22does not
00:51:23constitute
00:51:24pattern or
00:51:25similar fact
00:51:26evidence
00:51:26indicating a
00:51:28predisposition
00:51:29to murder
00:51:30criminals
00:51:33accordingly
00:51:35the
00:51:36allegations
00:51:37concerning
00:51:37the
00:51:37activities
00:51:38of the
00:51:39so-called
00:51:39Davao
00:51:41Dev Squad
00:51:41formerly
00:51:43the so-called
00:51:44Lambada
00:51:45Boys
00:51:46are irrelevant
00:51:48both to
00:51:49proving a
00:51:49criminal plan
00:51:50and that
00:51:52such a plan
00:51:52more importantly
00:51:53was common
00:51:55to any of
00:51:56the so-called
00:51:57co-perpetrators
00:51:58mentioned in
00:52:00the document
00:52:00containing the
00:52:01charges
00:52:01and released
00:52:02a few days
00:52:03before the
00:52:04confirmation
00:52:04hearing
00:52:05in a lesser
00:52:06redacted
00:52:07version
00:52:08of the
00:52:09PCB
00:52:12now
00:52:13thinking like
00:52:14a prosecutor
00:52:15I would say
00:52:17that the reason
00:52:18why the
00:52:18prosecution
00:52:19has fixated
00:52:23is
00:52:30and
00:52:44a
00:52:49who
00:52:58will
00:52:58have
00:52:58the
00:52:58iron
00:52:58and
00:52:58have
00:59:57And I quote,
00:59:58question.
01:02:00ask you, did Mr. Edward Jeremy, counsel for the prosecution, in his very eloquent and
01:02:08gilded address, not screen this part of the command circular? After all, this command
01:02:18circular, as elaborated by Ms. Robincroft, was the very essence of his criminal common
01:02:24plan, in writing. This is the basis, so Mr. Jeremy stated, for the criminal agreement
01:02:32to kill high-value targets. And if that were not enough, the lawfulness of command circular
01:02:4616 of 2016 was reiterated three weeks later, on 22 July, through the initiation and issuance
01:02:55of PNP investigative directive number 12 of 2016, which set out additional policies and
01:03:04guidelines in the conduct of double barrel. I think there, Madam President, if I may, we
01:03:11can take a break, obviously with your permission.
01:03:18Thank you, counsel. Thank you very much. If you can also indicate the numbers of the documents
01:03:27that you have referred to, that will be good. Thank you very much, says Judge Motok. We will
01:03:34take a break now and resume at 11.30. Thank you very much.
01:04:05Thank you very much.
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