THE legal counsel of victims of the violent drug war of the Duterte administration has urged the International Criminal Court (ICC) appeals chamber to reject the bid of former president Rodrigo Duterte to disqualify chief ICC Prosecutor Karim Khan from handling his crimes against humanity case before the tribunal.
In a 20-page submission dated August 26, Principal Counsel Paolina Massida
also asked the Pre-Trial Chamber 1 for a flexible approach to reviewing the victims’ application in the case.
Massida said Duterte’s defense team led by Nicholas Kaufman failed to show or demonstrate that its objection to Khan “meet the stringiest requirements” for disqualification set in the Rome Statute, the treaty that governs the establishment of the ICC.
Khan, who is currently on leave due to alleged sexual misconduct, has already stepped away from his duties as chief prosecutor since May, and deputy prosecutors have taken operations of his office.
“Therefore, the legal representative submits, that in the circumstances, the request is moot. The undeniable fact is that Mr. Khan is no longer at the helm of the Office of the Prosecutor, exercising his statutory authority,” Massida said.
“In other words, he is no longer responsible for receiving referrals on any substantiated information on crimes within the jurisdiction of the Court, examining them and conducting investigations and prosecutions before the Court, and heading the Office of the Prosecutor and having full authority over its management and administration, including the staff, facilities and other resources thereof as provided in the Statute, the Rules, and relevant regulations,” she added.
Massida stressed that even if the chamber grants Duterte’s request to disqualify Khan, it would amount to nothing since he is, basically, out of office and is no longer exercising statutory authority over the crimes against humanity cases lodged against the 80-year old former leader.
“Not only such disqualification proceedings will cause unnecessary distractions or erosion of confidence in the Court as a whole among victims and the general public but it will also waste precious time and resources of the Court. Therefore, on this ground alone, the request should be dismissed as moot,” she said.
Duterte’s disqualification request stems from Khan’s 2018 involvement as part of a legal team representing victims requesting the ICC to investigate alleged crimes in the Philippines in connection with the bloody anti-drug crackdown of the then Duterte administration.
Khan voluntarily disclosed his earlier involvement in March and April 2025.
Massidda said the defense should have raised that issue “as soon as there is knowledge of the grounds on which it is based” and not four months after the disclosures.
She also said that the defense has actually said there was no ground for Khan’s disqualification when it filed its initial response to the notifications on April 3, essentially approving the conduct of the prosecutor.
Massida pointed out that all the factual information on which the defense based its request has all been “clearly communicated” to them via the notifications.
“Based on these facts, it can be concluded that the defense forfeited its right to timely submit the request for disqualification of the Prosecutor. Consequently, the request should also be dismissed as untimely,” she also said.
Massida likewise said the request lacks merit as its “allegations fall short of meeting the high threshold set by the Statute and the Rules, and thus should be rejected.”
Kaufman has earlier said they will not hinder proceedings of the PTC by seeking the disqualification of Khan, in a major turnaround from its previous position.
However, Kaufman did not officially withdraw its request seeking Khan’s disqualification.
In a related development, Massida asked the ICC Pre-Trial Chamber 1 for a flexible approach in the victims’ application in the case.
“Flexibility will take into account the interests of the victims reflecting the true nature and extent of their victimization and reinforce the victim-centered approach on which the mandate of the Court is based,” Massida said in a 6-page document dated August 29.
The Pre-Trial Chamber, in an order issued in April, categorized how victims can participate in the case, including the “A-B-C” approach.
Under it, Group A include applicants who clearly qualify as victims; Group B for applicants who clearly do not qualify as victims; and Group C for applicants whom the ICC Registry could not make a clear determination for any reason.
Massida said she supports the Registry’s approach and its recommendations based on the victim’s proof of identity and proof of kinship.
She added “this is in line with the approach constantly taken in the practice of the Court in relation to documents to be provided by victims for their application to be considered complete. This approach is also in accordance with the prima facie standard of proof applicable to victim’s applications.”
Massida also noted that the annexes containing the application form are heavily redacted, preventing a fair and full assessment of the events.
Earlier, 303 drug war victims sought to participate in the pre-trial proceedings in the crime against humanity charges against Duterte.
The number, according to the Victims Participation and Reparations Sections (VPRS) is just but a small percentage of the total number of drug war victims.
The VPRS said it has verified that the applicants have met its criteria, namely “their identity as natural persons is established, they suffered harm, and the harm suffered is the result of the crimes that Mr. Duterte is charged with” in the international tribunal.
The VPRS also verified their identities through their Philippine government-issued IDs such as voter’s ID, DSWD-issued cards, and barangay employment ID.
