JUDGES of the International Criminal Court (ICC) are being asked to allow some witness statements in the case against former Philippine President Rodrigo Duterte to be admitted without full courtroom testimony, a move prosecutors say would speed up the proceedings.
Duterte’s lawyers oppose the request for key witnesses, arguing that the former president must be allowed to challenge evidence that directly implicates him.
The dispute highlights a key question facing the court as it prepares for trial in The Hague: how to keep proceedings moving while protecting Duterte’s right to cross-examine witnesses.
At the center of the debate is Rule 68 of the ICC Rules of Procedure and Evidence, which allows judges under certain circumstances to admit previously recorded testimony.
Prosecutors are invoking Rule 68(2)(b), which permits written statements on matters that do not directly concern the accused’s alleged conduct, and Rule 68(3), which allows written testimony while preserving the opportunity for questioning in court.
The Office of the Prosecutor is seeking to admit several witness statements in writing, arguing that they provide background on the alleged anti-drug campaign rather than direct evidence of Duterte’s actions.
‘The Prior Recorded Testimonies…do not concern the acts and conduct of the Accused,’ prosecutors said in a filing. Instead, they deal with the broader context of the alleged crimes and policies behind them.
Acting Prosecutor Mame Mandiaye Niang argued that admitting the statements would ‘enhance the expeditiousness of the proceedings, obviate the unnecessary appearance of the witnesses, save valuable court time and resources, and serve the interests of justice.’
For other witnesses, prosecutors have proposed a compromise under Rule 68(3): their written statements would be admitted into evidence, but they would still appear in court for limited questioning and cross-examination.
Prosecutors said this approach is ‘not prejudicial to or inconsistent with the rights of the Accused’ because the witnesses would remain available for questioning by both the defense and the judges.
Duterte’s defense team, led by Peter Haynes KC, agrees that the proceedings should be efficient, citing the former president’s age and health condition.
‘The Defence supports the use of Rule 68[2][b] to expedite the trial, particularly in light of Mr Duterte’s age and frailty,’ Haynes said. ‘However, procedural efficiency must not come at the expense of his fundamental right to defend himself effectively.’
The defense has raised no objection to some witnesses whose testimony is limited to background information. However, it opposes admitting the statements of two witnesses without live testimony.
According to defense filings, one witness allegedly links killings to a system of rewards and quotas, while another is a key witness in one of the charged murder incidents.
‘Defense cross-examination is required to test the witness’s credibility and ability to provide relevant evidence capable of assisting the Chamber in establishing the truth,’ Haynes wrote, arguing that the allegations should be tested in open court.
The defense also described another witness as ‘a key witness’ who provides information ‘that no other witness identified by the Prosecution is in a position to supply,’ and argued that admitting the testimony without cross-examination ‘would compromise the rights of the accused.’
Representing 539 participating victims, the Common Legal Representatives of Victims supported the prosecution’s request, saying written testimony could help protect witnesses from re-traumatization and reduce the burden of repeated court appearances.
‘Their participation gives human meaning to the crimes before the Court,’ the victims’ lawyers said. ‘These proceedings concern not only the determination of individual criminal responsibility, but also the victims whose lives have been irrevocably affected by the crimes alleged before the Court.’
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The victims’ representatives also argued that the proceedings offer families an opportunity to establish the truth and seek accountability.
‘For the victims, the proceedings before this Court constitute a rare and indispensable source of hope,’ they said, expressing hope that the truth would be established and the suffering of victims acknowledged.
The filings provide an early indication of how both sides intend to present their case. Prosecutors are seeking to establish the broader context and alleged policies behind the killings, while the defense is focused on challenging evidence that directly links Duterte to the crimes charged.
Trial Chamber III, composed of Judges Joanna Korner, Keebong Paek and Nicolas Guillou, is expected to rule on the contested witness statements before trial proceedings start on November 30.
The ruling will not determine Duterte’s guilt or innocence, but it will shape how evidence will be presented in one of the ICC’s most closely watched cases involving a former head of state.