A protester holds a life-size cartboard cutouts of former Philippines' president Rodrigo Duterte during a demonstration in his support outside the International Criminal Court (ICC) in The Hague on February 23, 2026. Simon Wohlfahrt, AFP/File
Legal representatives for victims in the case against Rodrigo Duterte are strongly pressing the International Criminal Court to maintain his detention, arguing that the former Philippine leader continues to pose a flight risk and a threat to witnesses.
This, after Duterte’s defense team said the former president is suffering from severe memory loss and sometimes forgets his lawyer's name.
The 81-year-old Duterte faces charges of crimes against humanity at the ICC over his so-called "war on drugs" during which thousands were killed, according to prosecutors.
His trial is scheduled to start on November 30, but judges are weighing whether he is mentally fit to be tried and ordered a medical assessment by three experts.
That assessment has not been made public but Duterte's defense and the ICC prosecutor reacted to it in documents dated September 14 but published on the ICC website on Tuesday.
Lead Counsel Peter Haynes, KC, argued that independent medical assessments paint a clear picture of an accused suffering from "significant memory impairment that prevents him from retaining recent information and reliably accessing memories."
According to the filing, the panel of experts appointed by the Trial Chamber to evaluate Mr. Duterte found that his cognitive hurdles make it difficult for him to engage with the charges or give proper instructions to his legal team.
The defense noted that Mr. Duterte remembers his lead counsel's name "only sometimes."
WHAT MEDICAL EXPERTS FOUND
Despite documenting low test scores indicative of moderate to severe cognitive impairment, the expert panel concluded that Mr. Duterte possessed the necessary capacities to stand trial, attributing his poor testing results to "underperformance" or a lack of motivation rather than a definitive neurological disorder.
The defense sharply contested this conclusion, pointing out that the experts' own findings failed to rule out an underlying neurological condition.
“The probability of the latter hypothesis is not a mere suggestion advanced by the Defence, but a plausible explanation put forward by two out of the three appointed experts. Professor [REDACTED] expressly made clear that his reference to underperformance was valid only “in the absence” of any neurological disorders. 23 A scenario that, unlike in his December 2025 report, 24 he now appears unwilling to discount, by stating that “[REDACTED]” cannot be ruled out,” as explained in the document.
The filing emphasized that the actual cause of Mr. Duterte's testing failures "remains unknown," noting that the appointed neurologist omitted straight forward ancillary examinations that could have provided a clear diagnosis without requiring the patient's cooperation.
“Further examinations which did not require the patient’s cooperation – [REDACTED] – were available and would have been able to clarify this question, yet were not performed.”
"The Defence does not seek to supplant the Professors' expertise," the legal team stated, urging strict adherence to instructions and the exhaustion of all available medical examinations to provide judges with a robust evidentiary basis.
‘DUTERTE THINKS HE IS LIVING IN 2007-2008’
The defense observations detailed multiple instances during medical interviews where Mr. Duterte struggled with fundamental orientation.
The filing stated that Mr. Duterte could not remember being examined by the panel ten months prior, remained incapable of placing himself in time and space—believing he is living in 2007 or 2008—and failed to correctly identify members of his own family, including his grandchildren.
Furthermore, he believed his last election took place 46 years ago and that he is 84 or 85 years old, the defense argued.
The legal team argued that these consistent memory lapses make it impossible for counsel to place confidence in information provided about past events or to adequately prepare a defense against tens of thousands of disclosed items of evidence, hundreds of hours of video footage, and voluminous transcripts.
Acting Prosecutor Mame Mandiaye Niang, meanwhile, urged the judges to rule that the former leader possesses the capacity required to understand the proceedings, follow the evidence, and instruct his legal counsel.
“Pursuant to Trial Chamber Ill’s (the “Chamber”) decisions… the Prosecution provides its observations on the Panel of Experts’ joint and individual reports… Understand the charges… Instruct counsel in the preparation and conduct of his defence,” Niang said in observations submitted to Trial Chamber III on September 14, 2026.
The prosecution's position centers squarely on the unanimous findings of a specially appointed panel of multidisciplinary medical experts.
FIT FOR TRIAL
According to the filing, the experts conducted in-person interviews, examinations, and assessments of Mr. Duterte after reviewing relevant medical records and consulting clinicians and custody staff.
The prosecution said the experts found "[REDACTED]" in his condition since their initial assessments more than six months prior. Instead, the evaluation indicates that the former president is fit for trial and capable of "meaningfully exercising his procedural and fair trial rights."
The panel was initially formed following a defense request in May 2026 for a medical evaluation. Both the prosecution and defense supported the re-appointment of the experts who evaluated the accused during pre-trial proceedings.
Addressing the evaluation process, the prosecution noted that the panel members maintained strict independence, providing a formal declaration confirming the absence of any conflicts of interest.
The filing also points out that certain expert observations suggested instances of "reduced effort and unreliability during assessments," noting behavioral notes such as a "[REDACTED]" in a "[REDACTED]" environment.
With the medical findings clear and the panel in full agreement on its methodology and conclusions, the prosecution argues that holding a dedicated hearing on Mr. Duterte's fitness is unnecessary. Under the court's regulatory framework, such a hearing is discretionary rather than mandatory.
"There is no statutory requirement to hold a hearing on fitness to stand trial in the Court’s regulatory framework, nor is one envisioned within the process under rule 135 of the Rules of Procedure and Evidence," the prosecution stated in the document.
To accommodate the former leader during court proceedings, the expert panel outlined several practical adjustments.
“Pursuant to the Chamber’s instructions,30 the Panel provided a number of practical suggestions, including those aimed at facilitating Mr Duterte’s effective participation at trial.”
The prosecution defers to the court registry regarding the feasibility of these measures, though it noted that schedule adjustments might occasionally need flexibility to accommodate incoming witness testimonies.
“The Prosecution considers that the above-mentioned measures proposed by the Panel are reasonable and defers to the Registry in relation to the feasibility of their practical implementation, as well as to the Chamber’s discretion in their adoption. In relation specifically to the proposal to commence hearings [REDACTED], the Prosecution flags that exceptions may need to be made in order to accommodate witness testimony [REDACTED].”
Furthermore, the prosecution contends that a continuous cycle of medical reassessments is unnecessary.
It noted that rule provisions for ongoing reviews apply strictly to situations where an accused individual has been found unfit.
“There is no ongoing statutory obligation on Chambers to reassess an accused’s fitness, as rule 135(4) applies only in situations where an accused is found to be unfit to stand trial.”
'A MATTER OF LAW RATHER THAN SCIENCE'
In its observations, the defense invoked Rule 135 and underscored that it is ultimately for the Trial Chamber—as a matter of law rather than science—to determine fitness to stand trial to ensure fair proceedings.
“Pursuant to Rule 135, a Chamber may order a medical examination… Accordingly, it is for the Chamber alone to determine this question – as it is a matter of law rather than science.”
The defense has formally requested the Trial Chamber to direct the appointed neurologist to complete all necessary ancillary examinations to establish a formal diagnosis regarding any neurological condition.
In the alternative, the defense asked the court to permit the parties to question the experts either orally or in writing to resolve inconsistencies in their reports before any trial proceedings move forward.
VICTIMS SPEAK OUT
In a public redacted filing submitted to Trial Chamber III on September 15, the Common Legal Representatives of Victims maintained that the foundational factors requiring Duterte's custody remain entirely unchanged.
The legal team stressed that keeping him detained at the seat of the Court in The Hague is the sole mechanism capable of guaranteeing his physical presence at trial and preventing any potential interference with the judicial process.
"Victims expect to finally see Mr Duterte appear in person in the courtroom," the legal representatives stated in the document.
They added that continued detention is vital "to prevent any risk that victims and witnesses may be subjected, directly or indirectly, to intimidation, threats, interference, or other forms of undue influence that could undermine their participation in the proceedings and the proper administration of justice."
Duterte was surrendered to the Hague by the Philippine government on March 12, 2025, following an arrest warrant issued by Pre-Trial Chamber I.
Under the rules of the Rome Statute, his detention is subjected to periodic reviews at least every 120 days.
Following the confirmation of charges against him on April 23, 2026, the Chamber previously ruled that the milestone increased the risk of flight, necessitating his continued imprisonment.
The latest filing also addresses ongoing discussions surrounding Duterte's health and his fitness to stand trial.
While the Defence has repeatedly argued that medical conditions should warrant interim release, the victims' legal team noted that independent medical evaluations by a court-appointed multidisciplinary panel of experts have not altered the legal landscape.
“The Defence’s argument that Mr Duterte’s health conditions supported interim release rather than continued detention… the independent medical expertise does not affect the prior judicial determination that Mr Duterte continues to pose a significant flight risk,” said in the document.
The Chamber previously emphasized that fitness to stand trial hinges on whether an accused can effectively exercise fair trial rights rather than the mere presence of medical conditions.
“Emphasising that “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.”
According to the victims' representatives, “it is nevertheless important to emphasize, for the purposes of the present observations, that the independent medical expertise does not affect the prior judicial determination that Mr Duterte continues to pose a significant flight risk.”
They pointed out that the gravity of the charges, the potential sentence, and Duterte’s longstanding public posture toward the Court and its legitimacy remain unchanged.
For many affected individuals and their families, the proceedings represent a vital avenue for accountability.
“Victims and their families attach considerable importance to these proceedings, viewing them as the only avenue to obtain justice.”
However, the legal filing highlights that deep-seated fears persist within local communities.
"Many continue to fear threats, retaliation and stigmatisation in the communities due to Mr Duterte’s continuing influence," the representatives noted, emphasizing that the protection of participants can only be effectively ensured through continued custody. With Agence France-Presse