ICC limits Duterte pre-trial hearings to four weekly, three hours daily

The International Criminal Court (ICC) has limited hearings in the crime against humanity case of 80-year-old former President Rodrigo Duterte to a maximum of four per week, with a total duration of three hours, pursuant to the recommendation of medical experts.

These special measures and adjustments follow the observations of the court’s medical officer and the three-member panel of experts, who were previously appointed by the court to assess Duterte’s alleged debilitating health ahead of his pre-trial hearing scheduled for Feb. 23.

Based on an order dated Jan. 27 signed by the three judges of the ICC Pre-Trial Chamber, the confirmation of charges hearing is set on weekdays from Feb. 23 to 27, except for Wednesday, Feb. 25. The daily session will start at 10 a.m.

The experts also suggested providing breaks during the hearings every one hour and capped the total duration of the daily hearings to no more than three hours.

The order also showed that Duterte’s lawyers would be allotted more time to present their arguments than the prosecutors and the common legal representative for victims (CLRV). This is primarily because the prosecution had already presented its case in writing.

The court has given the defense three hours and 30 minutes for submissions on the merits, and 30 minutes each for its opening and closing statements.

Meanwhile, the prosecution will be given two hours and 30 minutes for submissions on the merits, while the CLRV will be allotted only one hour and 30 minutes. Both have 30 minutes each for opening and closing statements, similar to the defense.

“[T]he chamber recalls the principle of fairness which encompasses the notion of equality of arms and requires that the parties be placed on equal footing, and that the defence should have the last word, as prescribed under rule 122(8) of the Rules,” the nine-page document reads.

The ICC, however, mandated that the oral arguments of the defense, the prosecution, and the CLRV “must be concise in nature, and repetition should be avoided.”

Closing statements cannot introduce new arguments, but they can be used to respond to points or questions raised during the hearing.

The parties are also restricted from interfering by raising new arguments during the closing statement. They can only use such an opportunity to respond to arguments and questions raised during the hearing.

The confirmation of charges hearing is a crucial phase in ICC proceedings. This is where the judges decide whether the case against an accused has enough merit to proceed to a full trial. A case could also be dismissed at this early stage if the judges find a lack of substantial evidence from the prosecutors.

Duterte’s lawyers earlier petitioned the chamber to indefinitely postpone the confirmation of charges hearing, initially scheduled for Sept. 23 last year, citing the former president’s alleged debilitating cognitive impairment and advanced age that may jeopardize their strategy.

However, the PTC-I on Monday declared that Duterte is still fit to stand trial, effectively dismissing Duterte’s lead legal counsel, Nicholas Kaufman’s, claims that the former leader is “emanciated, infirm and incapacitated,” to participate in the proceedings.

The decision corroborated the December findings of the panel of experts, who concluded that Duterte remains capable of standing trial.

Duterte is facing three counts of murder for crimes against humanity over killings recorded between Nov. 1, 2011, and March 16, 2019, spanning his time as Davao City mayor and as president.

The defense has repeatedly called for Duterte’s release, arguing that the ICC no longer has jurisdiction over him, citing the Philippines’ withdrawal from the Rome Statute—the ICC’s founding treaty—in March 2019.

Under the ICC’s rules, a one-year window is required to prevent a state party from immediately departing the treaty once it learns that it is under investigation for possible grave crimes, including crimes against humanity.

The ICC, however, asserted that it still retains jurisdiction over the alleged extrajudicial killings prior to the country’s withdrawal, underscoring that the preliminary probe had already commenced even before the country departed the treaty.