The International Criminal Court Pre-Trial Chamber I has rejected the bid by the camp of former president Rodrigo Duterte to disclose all communications between the court’s registry and the independent panel of medical experts, who were appointed to assess whether the octogenarian is still fit to stand trial. 

The PTC-I unanimously ruled that “there is no reason that would warrant granting the request” by the defense, asserting that they already possessed all the relevant information concerning the registry’s interactions with the experts, which were made available to them before they filed their observation on 12 December.

“For these reasons, the chamber hereby rejects the request,” read the five-page decision dated 23 December, released only on Tuesday, 6 January. 

Citing the findings,  the medical experts concluded that the 80-year-old Duterte is still capable of undergoing trial despite claims by his lawyers of his debilitating cognitive impairment.

Duterte’s lead counsel, Nicholas Kaufman, had told the court that such a condition makes it impossible for Duterte to contribute to his own defense, jeopardizing their legal strategy.

The lawyer also repeatedly invoked Duterte’s alleged frail health and advanced age to convince the court to grant him interim release, which was twice denied by the PTC-I and the Appeals Chamber. 

ICC records showed that two weeks prior to the findings on Duterte’s fitness to stand trial, the registry furnished the PTC-I with the individual and joint reports of the medical experts evaluating Duterte’s health status on 5 December. 

Five days later, the defense requested that they obtain emails, letters, or notes taken during telephone conversations that detail instructions or directives from the registry to the panel. 

The defense contended that they have the right access to this information pursuant to specific rules of the Rome Statute, the ICC’s founding treaty. 

ICC dismissed bias speculations

“Further recalling that the registry is a neutral organ of the court, whose main role in the present case was to liaise with the experts to transmit the chamber’s instructions, the chamber considers that, without further substantiation from the defence, the disclosure of ‘all communications between the Registry and the three experts’ is not warranted,” the recent decision further read.

Recall that Kaufman raised strong objections to the findings, asserting that each member of the panel “reached his conclusions stridently [in] conflict with those of the others,” arguing that such “internal inconsistencies undermine the overall weight” of the joint conclusion. 

Thus, he said, an evidentiary hearing to cross-examine the experts on how they arrived at the conclusion before the PTC-I rendered its decision is necessary.

The ICC has postponed Duterte’s pre-trial hearing, initially scheduled for 23 September, in favor of the defense’s petition asking the court to indefinitely stop the proceedings, citing the former president’s unfitness to stand trial.

This resulted in the ICC appointing the three-member medical experts to determine the veracity of the defense’s claims. 

However, the ICC’s rejection of several petitions by the defense did not stop Kaufman from exhausting all legal remedies to halt the looming trial. 

In December, he also petitioned the court to allow the same panel of medical experts to assess whether Duterte’s “cognitive state” and “unexplained weight loss” would permit him flee the ongoing proceedings, to intimidate witnesses, or to reoffend crimes he is facing as previously found by the PTC-I and the Appeals Chamber. 

These risk factors are outlined under Article 58(1)(b) of the Rome Statute, which allows continued detention of an accused, though Kaufman maintained that these grounds no longer apply to Duterte, thus warranting interim release pending the hearing for confirmation of his charges.

ICC prosecutors, victims opposed

Both the prosecution and the legal counsel of drug war victims strongly objected to the defense’s plea, dismissing it as a veiled attempt to further delay the already stalled proceedings. 

Deputy Prosecutor Mame Mandiaye Niang argued that the request is “unnecessary,” saying the chamber no longer needs the expert opinion on Duterte’s cognitive ability to “escape” or satisfy other grounds under the said article because it already possesses all relevant information, which ultimately guided them to render the previous decision. 

“This decision was subsequently upheld by the Appeals Chamber, noting the defence’s failure to demonstrate that the chamber’s approach to the issue was unreasonable,” Niang said in a submission dated 23 September but released only on Tuesday.

The prosecutor reiterated that “deterioration” of Duterte’s health does not justify the need for” an additional expert report, and that the “impact of time on his physical health is consistent with the natural process of aging.”

Victims’ principal counsel, Paolina Massida, echoed the prosecution’s argument, arguing that multiple requests concerning matters already decided by the court inevitably cause delays to the proceedings 

“By, effectively, seeking an additional delay through the proposed renewed instruction of the panel of experts, the defence is interfering with the prospect of expeditiously moving forward in this pre-trial phase of the proceedings,” Massida said in a separate filing. 

Duterte, facing three counts of murder for crimes against humanity related to his brutal war on drugs, was supposed to face the judges of the PTC-I on 23 September for the confirmation of charges.

The ICC, however, has yet to decide whether Duterte is indeed fit to stand trial, though ICC assistant to counsel Kristina Conti projected that it is likely to be set for February if not this month. 

In the meantime, Duterte will remain in the Scheveningen Prison in The Hague, Netherlands, where he has been detained since his arrest on 11 March in Manila.