Irish Centre for Human Rights Blog

By Dr. Elisabetta Baldassini

(Source: ICC Flickr page)

The ICHR Blog welcomes Dr. Elisabeeta Baldassini for this guest post on the Duterte case. Dr. Baldassini is an international law researcher and policy advisor, and holds a PhD from the University of Macerata, Italy.

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On 12 June 2026, Trial Chamber III (‘TC’) of the International Criminal Court (‘ICC’) issued a public redacted Decision^[1] (’12 June Decision’) appointing experts for the purpose of a medical examination to assess whether former President of the Philippines, Rodrigo Roa Duterte, is fit to stand trial. This decision reveals the doctrinal gaps and evidentiary inconsistencies within which judges’ broad discretion in assessing such evidence lies. 

Setting the scene

On 12 March 2025, Duterte was surrendered to the ICC pursuant to a warrant of arrest issued by the Pre-Trial Chamber I (‘PTC’) only a few days earlier.^[2] The PTC found reasonable grounds to believe that Mr Duterte was individually responsible as an indirect co-perpetrator for crimes against humanity of murder between 1 November 2011 and 16 March 2019. The charges arise from the so-called War on Drugs^[3] during the period he was in power.^[4] On 14 March 2025, Duterte appeared for the first time via video-link because of his medical condition.^[5] He also did not attend in-person for the confirmation hearing. On 23 April 2026m the PTC confirmed the charges on three counts of crimes against humanity and committed him to trial.^[6] The TC has scheduled the opening of the trial for 30 November 2026,^[7] but related fitness litigation will continue in parallel. 

A cognitive capacity thread

The focus of this post is not the charges, but the judicial discretion that weighs on the assessment of experts’ evidence over the cognitive capacity of the accused to meaningfully participate in the proceedings to determine fitness to stand trial. The Duterte proceedings at the ICC are a case in point. In prior cases, the way the Court treats and relies on experts’ findings exposes the breadth of such discretion and mirrors the fragmented approach in tackling the fitness question grounded in intrinsic legal-psychiatric epistemic tensions. 

The procedural thread on the issue begins on the same day the accused first appeared before the Court and continues while I write this post. 

It was 14 March 2025, the day of his first appearance via video-link, when Duterte’s counsel informed the PTC of his intention to raise the issue of the accused competence to stand trial.^[8] At that stage, the Court’s doctor was of the opinion that Mr Duterte was “fully mentally aware and fit”.^[9]  

The Defence responded by initiating the process for independent medical examination in an effort to establish the accused’s mental state. A series of Defence requests to the Court for further diagnostic assessment followed, but these were mostly delayed or denied.^[10] The Defence eventually asked the PTC to convene a status conference to tackle the issue of the accused’s competency to stand trial. It was declined.^[11] On 18 August 2025, the Defence filed the Request for an Indefinite Adjournment of the proceedings claiming that the Accused “is not fit to stand trial as a result of cognitive impairment in multiple domains.”^[12]

Less than a month later, in September 2025, the PTC, not satisfied of the evidence presented by the Defence, ordered a medical examination and appointed a panel of three experts on the matter (neuropsychology, geriatric and behavioural neurology, forensic psychiatry).^[13] These are the same experts who now constitute the Panel of Experts currently assessing Duterte’s mental condition at the Trial stage.^[14]  

On 26 January 2026, the PTC found Duterte fit to take part in the pre-trial proceedings, and  declined the Defence request for an evidentiary hearing.^[15] In filing the hearing request, the Defence stressed the need to also clarify the internal inconsistencies resulting from the Panel of Eexpert’s individual conclusions that could undermine the panel’s joint conclusion.^[16] As the case entered the Trial stage, on 25 May 2026, the Defence submitted a request for the TC to order a medical examination of the Accused pursuant to Rule 135 of the RPE prior to the commencement of the trial, again requesting that an evidentiary hearing follow. On 12 June the TC deferred the Defence’s hearing request pending receipt of the expert reports.

(The Duterte Trial Chamber. Source: ICC Flickr page)

Discretionary frameworks

Under Rule 135(1) of the ICC RPE, judges may order a medical, psychiatric, or psychological  examination of the accused,^[17] and if the Court finds the accused unfit to stand trial, proceedings should be adjourned.^[18] However, Rule 135 is silent about the legal standard upon which the determination of fitness should be built, how much weight should be given to the medical experts’ conclusion, or whether there should be an evidentiary hearing. Standards and practice have been constructed through case law, thereby giving concrete expression to statutory fair trial guarantees. In particular, under Article 64(2), the Rome Statute places responsibility on the judges to ensure that a trial is conducted in a fair and expeditious manner with respect for the fair trial rights of the accused^[19] as set out in Article 67(1),^[20] while Article 64(8)(a) binds the TC to ensure that “the accused understands the nature of the charges”.^[21] The 12 June Decision is grounded on these provisions, framing the question of fitness to stand trial within the broader notion of the possibility for the accused to exercise its procedural and fair trial rights.^[22]

In the TC’s framing, the meaningful exercise of those rights includes the “capacity to understand the conduct, purpose and possible consequences of the trial proceedings, instruct counsel and, if desired, to make a statement”.^[23] This is followed by the TC’s clarification that the determination of fitness does not equal the determination of the accused’s medical condition, but the capacity of the accused to meaningfully exercise his procedural rights.^[24] The threshold for fitness is therefore met if “the accused possesses these capacities overall in a reasonable manner.”^[25] The TC’s approach in Duterte encapsulates the essence of the capacity-based approach inherited from the Gbagbo, Ongwen, Al Hassan, andSaid cases at the ICC.^[26] In the May 2026 request, the Defence argued for a higher threshold by citing the International Military Tribunal and ICTY Strugar Appeals Chamber highlighting the need for the accused to “understand the details of the evidence”.^[27]

What stands out in the 12 June Decision, read against existing case law, is the degree to which the TC explicitly asserts its authority over the fitness determination against that threshold. In paragraph 26 of the Decision, the TC describes the determination of the accused’s fitness to stand trial as its own “exclusive responsibility”, while positioning the parties and the experts, as assisting. In doing so, the TC stresses the legal nature of the fitness question over the medical one. The evidentiary weight to be given to the medical psychiatric expertise is just a judicial matter. This line runs through the evidentiary thread in which the TC leads, receives, and assesses psychiatric evidence. 

A question naturally arises. If the determination of the accused’s capacity to meaningfully participate in the proceedings carries that degree of institutional weight and judicial responsibility, and given it rests on the evidence that experts produce, shouldn’t evidentiary hearings be a precondition towards a final determination of the accused’s fitness to stand trial? Shouldn’t any methodological difference or apparent inconsistency be tested through questioning? 

As pointed out earlier, Rule 135 is silent on this, and in Duterte, the PTC was inclined to deal with the question of fitness on paper rather than through a hearing. There is no guarantee one will occur before the TC. This makes the Duterte case a divergence from most international criminal cases the TC cites in the 12 June Decision.^[28]

These fundamental differences between legal and medical understandings of capacity underlining the 12 June Decision become even more tangible in the instructions to the Panel of Experts.^[29] In a hybrid approach, the TC asks the experts to assess the cognitive status of the accused through a non-exhaustive list of capacities resembling those articulated in Strugar,^[30] and even more closely Kovacevik,^[31] followed by a list of clinical questions.^[32] It remains unclear whether the capacity-based approach that the TC has inherited from ICC jurisprudence impacts to any degree on its discretion in assessing the expert conclusions developed within the scope of those instructions. It is also blurred whether the TC is asking the experts to use their scientific knowledge to find whether the accused satisfies a legal standard upon which it has just declared exclusive responsibility.

One final thought ahead of trial

The Duterte case seems to confirm Spencer’s observation that judges tend to defer to medical evidence on issues related to fitness to stand trial more easily than being convinced of the validity of such experts’ evidence, retaining broad judicial discretion over the “probative weight of such evidence”.^[33]

In Duterte, the cognitive capacity thread allows us to observe the degree of control by the TC in the construction and assessment of the medical, psychiatric, or psychological^[34] evidence under Rule 135, which, in itself, is a feature of international criminal procedure at the ICC. Yet the assertive language used in the 12 June Decision over the legal ownership of the medical evidence, the responses to the various Defence requests, the reservations over the letter of instructions submitted jointly by the Prosecutor and the Defence, as much as the refusal or deferral to hold evidentiary hearings, are, overall, exercises of judicial discretion. 

It is also true that independent proceedings are to be protected from risks of partiality, and that, understandably, medical and psychiatric experts are not responsible for the ultimate issue which would entail an automatic translation of medical findings into legal ones. But it is precisely that translation that should be done in a thorough manner if judges are to discharge their responsibilities in assessing psychiatric evidence before determining the accused’s mental capacity. 

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^[1] Prosecutor v Rodrigo Roa Duterte (Decision appointing experts for the purpose of a medical examination pursuant to Rule 135 of the Rules of Procedure and Evidence) ICC-01/21-01/25-462-Red (12 June 2026).

^[2] Ibid para 1. Prosecutor v Rodrigo Roa Duterte (Warrant of Arrest) ICC-01/21-01/25-83  (7 March 2025).

^[3] ICC, ‘Case Information Sheet: The Prosecutor v Rodrigo Roa Duterte’, ICC-01/21-01/25 (February 2026).

^[4] Prosecutor v Rodrigo Roa Duterte (Document Containing the Charges), ICC-01/21-01/25-178-Red (13 February 2026) paras 19-21.

^[5] Prosecutor v Rodrigo Roa Duterte (Defence Request for an Indefinite Adjournment) ICC-01/21-01/25-230-Red (11 September 2025) paras 5-6.

^[6] Prosecutor v Rodrigo Roa Duterte (Decision on the Confirmation of Charges) ICC-01/21-01/25-417-Red (23 April 2026).

^[7] ICC, Prosecutor, v. Duterte, Case Information Sheet.

^[8] Prosecutor v Rodrigo Roa Duterte (Defence’s request for medical examination pursuant to Rule 135) ICC-01/21-01/25-450-Red (25 May 2026) para 2.

^[9] Ibid.

^[10] Prosecutor v Rodrigo Roa Duterte (n 5) paras 8-14.

^[11] Prosecutor v Rodrigo Roa Duterte (Defence Observations on the Reports of the Panel of Experts) ICC-01/21-01/25-327-Conf (18 December 2025) para 4 (‘Defence Observations’). See also Prosecutor v Rodrigo Roa Duterte (Order pursuant to rules 113 and 135 of the Rules of Procedure and Evidence) ICC-01/21-01/25-268 (8 September 2025) paras 3–6.

^[12] Prosecutor v Rodrigo Roa Duterte (n 5) para 1; 12 June Decision (n 1) paras 2-3.

^[13] Ibid, paras 4 and 5.  

^[14] 12 June Decision (n 1) para 20.

^[15] Defence Observations (n 11) para 28. Prosecutor v Rodrigo Roa Duterte (Request for Leave to Appeal Decision) ICC-01/21 01/25-363-Red (2 February 2026) para 7.

^[16] Prosecutor v Rodrigo Roa Duterte (Decision on the ‘Defence Request for an Indefinite Adjournment’ and Mr Duterte’s fitness to take part in the pre-trial proceedings) ICC-01/21-01/25-356-Red (26 January 2026) para 15. Leave to Appeal Request (n 15) para 18.

^[17] ICC RPE, r 135(1) 

^[18] ICC RPE, r 135(4). There is a procedural gap in Rule 135(4) RPE, the TC shall review the accused’s fitness to be tried every 120 days,“but it does not expressly permit termination of proceedings due to the accused’s unfitness to stand trial” Sze Hong Lam and María Manuela Márquez Velásquez, “Too unfit to face justice?” (Leiden Law blog, 2025) https://www.leidenlawblog.nl/articles/too-unfit-to-face-justice.

^[19] Rome Statute 1998 Art 64(2). 

^[20] Rome Statute 1998 Art 67(1). Under Article 67(1) fair trial rights, Pre-Trial Chamber I in Gbagbo indicated the criteria to assess the necessary capacities to meaningfully exercise those rights, namely, “(i) to understand in detail the nature, cause and content of the charges; (ii) to understand the conduct of the proceedings; (iii) to instruct counsel; (iv) to understand the consequences of the proceedings; and (v) to make a statement”. Prosecutor v Laurent Gbagbo (Decision on Fitness) ICC-02/11-01/11-286-Red50 (2 November 2012) para. 50.

^[21] Rome Statute 1998 Article 64(8) 

^[22] 12 June Decision (n 1) para 23.

^[23] 12 June Decision(n 1) para 24.

^[24] 12 June Decision (n 1) para 25. It is interesting to note the difference in wording between the 12 June Decision: “In connection with the foregoing, the question of whether an accused is fit to stand trial does not depend, in and of itself, on whether he or she has particular medical conditions, but whether he or she is able to effectively exercise his or her fair trial rights in the proceedings” and that of Al Hassan and Ongwen, “the question of whether an accused is unfit to stand trial does not concern, in and of itself, whether he or she has particular medical conditions, but whether the accused is able to exercise effectively his fair trial rights in the proceedings” in Prosecutor v. Al Hassan  (Decision on the Defence notice on Mr Al Hassan’s unfitness to stand trial) ICC-01/12-01/18-952-Red (2 September 2020), para. 36 See also Prosecutor v Ongwen (Medical Examination Decision) ICC-02/04-01/15-637-Red (16 December 2016) para. 13.

^[25] 12 June Decision (n 1)para 24.

^[26] 12 June Decision (n 1) paras 24-25 

^[27] Defence Request (n 8) para 12 referencing Prosecutor v. Strugar (Appeal Judgment) IT-01-42-A (17 July 2008) para. 63 and IMT Goering et al. (Order of the Tribunal Rejecting the Motion on behalf of Defendant Hess, and Designating a Commission to Examine Defendant Hess with Reference to his Mental Competence and Capacity to Stand Trial) (24 November 1945) para. 2.

^[28] For example, Gbagbo (n 19), Strugar (n 27), Ongwen (n 23), Prosecutor v Kabuga (Decision on Appeals) MICT-13-38-AR80.3 (7 August 2023), even though Kabuga and Ongwen go beyond  the question of fitness and can be treated differently to a degree from Strugar, Gbagbo, and Duterte. It remains however relevant to the scope of the argument. 

^[29] Submitted jointly by the Defence and Prosecution and adopted with some variations by the TC. 

^[30] Prosecutor v. Strugar (n 27) para 41. In fact, in the instruction to the PoE the wording “details of” in relation to understanding the evidence as in Strugar is missing. 

^[31] Prosecutor v Kovačević (Decision on Accused’s Fitness to Enter a Plea and Stand Trial) IT-01-42/2-I (12 April 2006) para 22. 

^[32] 12 June Decision (n 1) para 31(iii).

^[33] Dragana Spencer, ‘Scope and Limits of Psychiatric Evidence in International Criminal Law’ (2020) pp 5-6.

^[34] ICC RPE, Rule 135(1).