INTERNATIONAL law expert Melissa Loja said the prosecution faced hurdles in establishing a clear legal nexus in the confirmation of charges hearings against former president Rodrigo Duterte before the International Criminal Court (ICC). In an interview with The Manila Times on Sunday, Loja described the prosecution’s theory of liability as “tenuous,” particularly on the element of indirect co-perpetration. She said that to meet the threshold of substantial grounds to believe, prosecutors must identify the person or organized power structure through which an accused allegedly conveyed the intent to commit murder and allowed extrajudicial killings to be carried out. “To establish substantial evidence of indirect co-perpetration, the person or power structure through whom or which the indirect co-perpetrator conveyed the intent to commit murder and caused the act of murder to be committed have to be identified,” Loja said. She noted uncertainty over whether the names of such individuals or entities were among those redacted in the public record. Loja said the prosecution’s evidence on criminal intent appeared to have been weakened during the hearings after the defense presented written policies directing police officers to comply with operational procedures and limiting the use of lethal force to self-defense. She pointed out that the defense was able to cite speeches in which Duterte reminded law enforcers to observe procedural due process. According to Loja, these materials “hollowed out” the prosecution’s assertions of intent, at least at the level presented during the oral arguments. The prosecution could still regain lost ground if its written submissions demonstrate that such policies were routinely ignored and that Duterte failed to revise them despite repeated breaches. There must be irrefutable evidence showing officers who violated procedures were not retrained or disciplined could bolster the prosecution’s position. On the defense side, Loja observed that redactions in the case record limited its ability to mount a per-incident challenge to the prosecution’s evidence. “I had expected a granular attack,” she said, adding that the defense’s written filings might yet contain a more detailed rebuttal. Loja noted that the appeals chamber may have been monitoring the proceedings, placing an added burden on the defense. “Defense bore the double burden of convincing the pretrial chamber and the appeals chamber in one hearing,” she said. The confirmation of charges hearings determine whether the case against Duterte will go to trial.