ICC judge cites Kaufman remarks in Duterte trial warning to lawyers

MANILA, Philippines — The presiding judge of the International Criminal Court's Trial Chamber III has told lawyers in the trial of former former President Rodrigo Duterte to argue the case in court rather than in the media.

Judge Joanna Korner said the trial would not be decided in the "court of public opinion," and warned counsel on both sides against commenting publicly on the case.

She made the remarks on Tuesday, June 23, at the second status conference of the Duterte trial, which is due to begin November 30. 

Korner said there was "no reason" for lawyers on either side to comment to the media, and that the proper place to raise matters was the courtroom.

The warning was prompted in part by the conduct of Duterte's former lead lawyer, Nicholas Kaufman, who left the defense team in May.

Korner recalled that the pre-trial chamber had reminded Kaufman in October last year of his duty to be respectful and courteous to the court. That reminder, she said, "had no effect." 

After the ICC's appeals chamber upheld the court's jurisdiction over Duterte in April, Kaufman gave at least two interviews setting out his own views of the judges' previous ruling. Korner described those comments as "wholly inappropriate," particularly coming from a lawyer in the case.

The judge also addressed the strong public interest in the trial in the Philippines and the spread of disinformation in relation to the proceedings. 

"This case has attracted, not surprisingly, a substantial amount of media interest in the Philippines in particular. That's not of course only mainstream media, but as is common these days, social media," Korner said.

This has "provoked suppliers of what is undoubtedly fake news and obviously fake news," she added. 

Journalists must report the proceedings accurately and avoid speculation, Korner said, and nothing said in closed session may be reported.

Korner also expressed surprise that the ICC's codes offered lawyers no specific guidance on speaking to the media, beyond general provisions in the code for the defense. She said this gap should be addressed "sooner rather than later."

Fitness report due. Duterte did not attend the hearing, having again waived his right to be present. He is now represented by British barrister Peter Haynes and associate counsel Kate Gibson.

Much of the conference dealt with procedure. The chamber set an August 18 deadline for court-appointed experts to report on whether Duterte is fit to stand trial, with the parties to respond by the end of the month.

It also set further status conferences for July 14, September 7, October 13 and November 2. Korner said she expected both Haynes and Duterte to attend the September hearing, barring any medical issue.

After experiencing successive losses in his attempts to prevent a trial for his client, Kaufman earlier this year said in a media interview that the ICC had confirmed the charges against Duterte to "justify their workload."

ICC Deputy Prosecutor Mame Mandiaye Niang told the court in a filing the remarks were "offensive and categorically false."

Duterte faces three counts of crimes against humanity for murder and attempted murder. He is linked to the killing of 76 people between 2011 and 2019, first as mayor of Davao City and then as president. 

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