MANILA, Philippines – Former Philippine president Rodrigo Duterte can undergo trial, provided he’s given some accommodations like regular breaks and his preferred food, medical experts told the International Criminal Court (ICC).

“Upon completion of their assessments, panel members individually reached the same overall conclusion that, while frail and elderly, Mr. Duterte nevertheless possesses the necessary capacities to meaningfully exercise his procedural and fair trial rights,” said the prosecution on Thursday, December 18.

The experts did not use the phrase “fit for trial” just yet because that is a legal determination that only the ICC pre-trial chamber would make. The prosecution hopes that the long-awaited report from three medical experts would convince the court.

Duterte’s lawyer Nicholas Kaufman had claimed his client, the 80-year-old former strongman, is so cognitively impaired that a trial would not be fair. This has delayed his pre-trial hearing, originally set last September.

The report of the medical panel was released on December 5, but it is not available to the public. However, contents of the report were part of the prosecution’s filing on Thursday, urging the ICC pre-trial chamber to adopt the findings, and re-schedule the hearing.

“These findings are clear and unanimous, and should be relied upon by the Chamber as authoritative to determine that Mr. Duterte is fit to stand trial,” said the prosecution. The ICC is now on break and will reopen on January 5, 2026.

The prosecution said it supports the recommendation by the medical experts to accommodate Duterte’s health needs during the hearings, including “regular breaks,” and “that he should be provided with nutritious foods to his personal tastes and cultural preferences.”

The prosecution also said it’s “reasonable” to follow expert advice that when questioning Duterte, they should be “simple questions (repeated if necessary), short breaks for assessment, spoon-feeding information in an accessible format, and allowing time for the processing thereof.” The details of this recommended questioning was part of Kaufman’s filing on December 12.

Duterte is facing three counts of crimes against humanity of murder, one count each per context, representing 49 incidents of killings, with 78 victims of the war on drugs and the mysterious Davao Death Squad.

Kaufman’s dispute

Kaufman said that if Duterte was not cognitively impaired, there’d be no need to recommend the format. He said that kind of format fits the need of “a functionally-impaired individual.”

One of the medical experts did a “coin in hand” test, a neuropsychology test to see if a person was exaggerating their memory problems.

As we have not seen the actual medical report, we are left with the interpretations of both the prosecution and defense of the findings of the experts.

For Kaufman, there was “no imputed malingering” or no imputed faking on Duterte’s part when he was assessed to be an “unreliable historian” of his health and mental functions. “All experts appear to agree that Mr. Duterte’s poor performance on the tests designed to assess cognitive faculties results from underperformance. Nowhere is it stated, however, that such underperformance is deliberate,” said Kaufman.

For the prosecution, the assessment was clear. “In the Prosecution’s view, it strongly appears that Mr. Duterte is feigning cognitive impairments in an attempt to avoid a trial on the merits,” said the prosecution.

Even while he was president, Duterte had claimed to have various ailments like Buerger’s disease and the rare muscle disease myasthenia gravis, as well as telling Filipinos that an endoscopy once showed a growth. There was a petition to compel Duterte to release his medical records, but the Supreme Court voted against it in a decision that dissenters said was “overly deferential” to the former president.

Kaufman said the medical report is “not dispositive,” saying that the pre-trial chamber never indicated that the panel of experts were “meant to be decisive and the final word on Mr. Duterte’s competency.”

The Office of the Public Counsel for Victims (OPCV) said that the medical report is sufficient to meet the “legal criteria” for Duterte to be declared fit for trial. In ICC jurisprudence, a suspect can be deemed fit for trial if they are “oriented in time, oriented vis-a-vis his environment and himself.”

“For the foregoing reasons, the Legal Representative respectfully requests the Chamber to find that Mr. Duterte is fit to participate in the proceedings and to set the date for the confirmation of charges hearing without further delay in light of the Victims’ right to the expeditious conduct of the proceedings,” Paolina Massidda, principal counsel of the OPCV, said in a filing also on Thursday.

Duterte has lost all of his major motions so far, such as his requests for interim release and jurisdiction. Interim release has been junked on appeal, while jurisdiction is still being appealed.

– Rappler.com