A selection of comments made by the identified co-perpetrators of former president Rodrigo Duterte and their sharing of the same "rhetorical cue" proves nothing about the alleged collusion to commit a common criminal plan through Duterte's bloody war on drugs, his defense team said.

Duterte's defense counsel Nicholas Kaufman said on the third day of the confirmation of charges hearing at the international Criminal Court (ICC) on Thursday, Feb. 26, that the prosecution has yet to give any proof that Duterte, then most powerful official in the country, and his co-perpetrators have crafted a supposed common plan to kill drug suspects.

"It does not mean that those who formulated the anti-drugs policy were acting under similar caprice when they devised the nomenclature for these particular police operations," Kaufman said during the second session of the day.

"None of the indicators I have mentioned up until now have shown in any way a mutual meeting of minds between alleged co-perpetrators evincing a commonality of purpose or an agreement to act in an illegal fashion," the defense counsel stressed.

He told judges that the prosecution has yet to prove that the co-perpetrators coordinated between themselves to reach a mutual agreement to execute the supposed criminal plan.

"Assuming that the prosecution can overcome the hurdle of proving the existence of a common criminal plan, how has it shown that the so-called co-perpetrators coordinated between themselves to reach a mutual agreement to execute it. Well, it hasn't. All it can do is show a selection of comments made by Mr. Duterte's closest colleagues in government and all of which take their rhetorical cue from him," Kaufman said.

He further argued that the prosecution "artificially defines the identified individuals as a collective of co-perpetrators."

Kaufman said that the prosecution merely selected a number of individuals working alongside Duterte, who similarly made the same offensive comments.

"It has merely selected a number of individuals working alongside the former president who made similarly offensive comments and then called them co-perpetrators, instead of seeking evidence, which might shed light on the interactions of these individuals between one and another and construing a criminal conspiracy there," Kaufman said, raising the question of whether such evidence would even support the claims.

He further said that the defense had shown "conclusively that there was no mutually agreed common criminal plan."

It can be recalled that the prosecution identified other personalities as Duterte's co-perpetrator of the crimes against humanity, namely Senator Bato dela Rosa, Senator Bong Go, former Philippine National Police (PNP) chief of counterintelligence Vicente Danao, National Bureau of Investigation (NBI) director Dante Gierran, former PNP chief of operations Camilo Cascolan and former Justice Secretary Vitaliano Aguirre II.

"Prosecution must show objectively that Mr. Duterte, himself, made an essential contribution to the furtherance of this scheme of criminality on what is more that subjectively, he was aware that he was making such a contribution," Kaufman said.

"Did this 49 murders occur because of Rodrigo Duterte's involvement or to make the logic, would Rodrigo Duterte's withdrawal from this criminal scheme to target suspected criminals as alleged by the prosecution have led to the avoidance of these 78 deaths?" Kaufman went on.

Kaufman spent the first half of the second session of the day arguing that "to neutralize" suspects does not mean "to kill" them.

He has cited documents, including police manuals and judicial documents, to prove that the term frequently used in almost every police report during the implementation of war on drugs means "to kill."

Kaufman argued that the term of neutralization "can only mean the use of self-defense when officers' lives are endangered."

"[A]cross political, legislative, judicial, and law enforcement context, the consistent articulation has always been that neutralization denotes lawful restraint. At the Executive and operational level, the chief of the Philippine National Police Ronald Dela Rosa publicly clarified in 2017 that neutralization means arrest," the defense lawyer said.

"No circular has been invalidated on this basis, nor has it ever been established at the highest level of domestic judiciary that to neutralize means to kill. The judicial record does not sustain such an equation. In each institutional setting, therefore, the term has been situated within ordinary policing powers and constrained by the lawful use of force framework," he added.