The International Criminal Court (ICC) on Friday allowed former President Rodrigo Duterte to skip his four-day confirmation of charges hearing set to begin on Monday, 23 February, overruling the strong objection of the prosecutors and lawyers representing the victims of his bloody drug war.
Judges of Pre-Trial Chamber I cited Article 61(2)(a) of the Rome Statute which permits the conduct of a pre-trial hearing in the accused’s absence when the right to be present has been expressly waived.
“This applies to all sessions of the hearing on the confirmation of charges” scheduled on 23, 24, 26 and 27 February,” the chamber’s decision read.
The waiver, however, is “strictly limited” to Duterte’s attendance on the given dates and subsequent requests, including skipping the annual hearing on his detention to be convened on 27 February, shall require separate filings.
The ruling followed the move by ICC prosecutors to shoot down Duterte’s bid to waive his attendance, asserting that he was “not entitled to excuse himself unilaterally,” and that such a decision rested solely with the tribunal.
Deputy Prosecutor Mame Mandiaye Niang did not buy Duterte’s alibi that he is too “old, tired, and frail” to attend the proceedings, insisting that the 80-year-old is “fit, competent, and physically and mentally able to attend the hearing in person.”
“The state of Mr. Duterte’s health has been comprehensively examined and litigated before this chamber. It has done so with the benefit of extensive independent medical evidence and expert opinion,” the prosecution’s submission dated 19 February read.
“As the panel of experts concluded, unanimously, Mr. Duterte is an unreliable historian regarding the assessment of his health and mental fitness,” it added.
Niang rejected Duterte’s claim of being old and sick as “irrelevant,” adding that there is “no compelling reason” that would justify his absence from the courtroom on the confirmation of charges hearing.
The pre-trial hearing was originally set for 23 September but hit a major roadblock after Duterte’s lawyers petitioned the court to indefinitely postpone the proceedings on the grounds that he was old and sick, which made him unfit to stand trial.
In previous proceedings, the ICC had allowed the prosecutors to present their evidence in the absence of the suspect.
Kony precedence
This was primarily the case with Joseph Kony, a Ugandan warlord and self-styled commander-in-chief of the Lord’s Resistance Army that allegedly abducted women and children and forcibly recruited them into the group.
In September last year, the ICC authorized the prosecutors to open the evidentiary hearing without Kony, who was represented by his counsel during the confirmation of charges hearing.
An ICC warrant for Kony was issued as early as 2005, but he has remained at large to date, making him the ICC’s longest-standing fugitive.
He faces 39 counts of crimes against humanity, including murder, rape and sexual slavery. Although the charges have been confirmed, a full-blown trial will not roll without Kony’s presence in the court.
Duterte unfazed
Less than a week before his confirmation of charges hearing, Duterte furnished the court with a letter stating that he would waive his attendance and would not wish to follow the proceedings outside the courtroom, unfazed by the potential legal consequences of his actions.
His rationale: the ICC has no jurisdiction over his case following the Philippines’ withdrawal as a state party to the Rome Statute, the tribunal’s founding treaty.
Thus, the Philippines turning him over to the ICC in The Hague, Netherlands, was a “kidnapping” that was facilitated by his successor, President Ferdinand Marcos Jr.
Moreover, Duterte vehemently denied responsibility for the extrajudicial killings tied to his bloody anti-drug campaign, accusing his “political opponents” of long peddling such an “outrageous lie.”
No ICC jurisdiction
The prosecution, however, pointed out that his continued rejection of the ICC’s jurisdiction does not automatically give consent to his non-attendance at the pre-trial hearing.
“Thus, the fact that he does ‘not wish to attend’ should be given minimal weight in the chamber’s decision on this matter,” Niang averred.
Furthermore, the prosecutor believed there was a strong need for the chamber to dismiss Duterte’s bid in consideration of the victims of his drug war, who have long cried for justice.
“The defense itself acknowledged the importance of this principle as recently as 9 January 2026, when it complained again that Mr. Duterte had ‘not been seen in court for ten months.’ Mr. Duterte’s sudden heel-turn on this matter now, days before he is due to face the substantive criminal charges made against him, should be rejected by the chamber,” Niang concluded.