Seeking to resolve questions over former president Rodrigo Duterte’s fitness for trial, International Criminal Court prosecutors have asked the pre-trial chamber to tap three independent specialists to evaluate Duterte’s health, including whether he may be feigning illness.
In a nine-page filing dated September 18 but made public October 9, ICC Deputy Prosecutor Mame Mandiaye Niang pushed for the creation of a ‘multidisciplinary panel’ composed of at least three experts – a forensic psychiatrist, a neuropsychologist and a behavioural neurologist – to assess Duterte’s capacity to stand trial.
The ICC Office of the Prosecutor said the experts’ mandate should explicitly include ‘an evaluation of any evidence of malingering,’ or the fabrication of symptoms.
Recap. The medical fitness issue has somewhat slowed the pace of proceedings against Duterte, who was arrested and transferred to ICC custody earlier this year. During his initial appearance before the chamber via video link, ICC Presiding Judge Iulia Antoanella Motoc remarked that Duterte had been medically examined and found to be “fully mentally aware and fit.”
The confirmation of charges hearing – a crucial stage where judges determine if there’s enough evidence to proceed to a full trial – was initially scheduled for September 23.
But in mid-August, Duterte’s lawyer Nicholas Kaufman filed a request for indefinite adjournment, claiming he was “not fit to stand trial as a result of cognitive impairment in multiple domains.”
In his filing, Kaufman said Duterte suffers from impaired memory and an inability to retain new information or to recall events, places, timing or even members of his close family and defense team. He argued that Duterte “lacks the capacity to apply the cognitive skills essential for the proper conduct of his defense.”
The defense cited medical examinations from two of their own experts and a neuropsychologist who examined Duterte inside the ICC detention center and who reportedly found “significant cognitive deficiencies” affecting memory, reasoning, spatial awareness, and orientation.
The pre-trial chamber eventually voted to postpone the September 23 hearing to allow time to resolve the fitness question.
What the independent experts should assess, according to prosecution
According to the prosecution’s October 9 filing, the appointed specialists should determine “whether and, if so, at what level Mr. Duterte suffers from any medical condition which might have an effect on his ability to follow and take part in the ongoing pre-trial proceedings, including the confirmation of charges hearing.”
The prosecution wants the panel to evaluate five specific capacities: whether Duterte can understand the purpose and consequences of the proceedings; grasp the course of proceedings, including “the nature and significance of pleading to the charges”; understand the evidence presented; testify or give an unsworn statement if he chooses; and instruct his lawyers “in the preparation and conduct of his defence.”
If the experts find any mental impairment, they must specify which areas of mental capacity are affected and “assess whether these are due to reversible or irreversible causes.”
“The panel’s assessment should also expressly include an evaluation of any evidence of malingering, particularly in light of [REDACTED],” the redacted filing states.
The filing lays out extensive materials the experts should review, including Duterte’s complete medical record, all reports from defense experts, test results from MRI and CT scans conducted in May and July, and his detention record since surrendering to the court.
Prosecutors also want the panel to access “objective information” from detention centre personnel “who have interacted with Mr. Duterte since his surrender, in particular, before his fitness was raised as an issue in this case.”
The experts should also review public recordings of Duterte’s speeches “made shortly prior to his arrest,” including a March 9 speech in Hong Kong – two days before he was taken into custody, according to the filing’s footnotes.
Prosecution skeptical of defense claims
In an earlier filing responding to the defense’s indefinite adjournment request, the prosecution called the defense expert reports “premature and speculative,” arguing “it is unclear how familiar, if at all, the Defense Experts are with judicial proceedings at this Court, or even at other international courts or tribunals.”
The October 9 filing also reveals the prosecution opposed appointing one expert recommended by the defense, saying the specialist was suggested by one of Duterte’s own medical team. “Given the possibility that [REDACTED] may be part of the appointed experts’ assessment, the Prosecution respectfully submits that it would be advisable to appoint experts who have [REDACTED] in order to mitigate any potential bias,” the redacted filing states.
Prosecutors asked judges to bar any further suggestions of experts from either side, arguing that additional proposals would “delay the process of appointing experts” despite “the urgency of this matter.”
Pressure to speed up
There is also, according to the filing, somewhat of a need to prod the ICC Registry to speed up the turnaround time for translated documents, which currently take up to five weeks. The ICC prosecution requested that “the Chamber encourage the Registry to accelerate” this timeline, stating that “an accelerated timeline for translations will help to ensure that the issue of Mr. Duterte’s fitness is resolved swiftly.”
In an earlier filing, Niang said that “it is likely that this case will still proceed to the hearing on the confirmation of charges sooner than previous cases before this Court,” and pushed for the hearing to be completed “before the end of 2025.”
Duterte faces charges of crimes against humanity in connection with thousands of killings during his administration’s war on drugs. His case one of the ICC’s most closely watched prosecutions involving a former head of state.