Duterte: The ‘prized’ and ‘peculiar’ catch of the ICC

2026-03-10 - 23:45

THE HAGUE, Netherlands – Rodrigo Duterte, the boisterous, foul-mouthed former president of the Philippines, is supposedly now defeated and fatalistic. So claimed his lawyer, the British-Israeli Nicholas Kaufman, during the four-day confirmation of charges hearing against Duterte at the International Criminal Court (ICC) in The Hague. Although the prosecution wants this stricken off the record, the country has already heard it, that Duterte has now “accepted my fate and realized I could die in prison.” Here comes the star of the ICC, a “prized catch” as his former executive secretary and longtime friend Salvador Medialdea called him. A “peculiarity,” as deputy prosecutor Mame Mandiaye Niang described him, whose public speeches are a prosecutor’s dream come true, according to an expert. Yet the star was not on the dock at the much-awaited pre-trial inside the imposing building of the ICC packed with cameras and live translations, but tucked away, hidden in his cell at the prison complex in the middle of the dunes. Duterte supporters prepare the standees and tarpaulins of the “Duterte street,” a portion of the dunes in front of the Schveningen prison complex where Rodrigo Duterte is detained. Supporters have obtained a permit from The Hague to gather there. Photo by Lian Buan/Rappler ‘Weaker, frailer, greyer’ Talk in The Hague is Duterte is indeed slimmer, at one point slightly longer hair, and as Kaufman suggests, seemingly disinterested in the nitty gritty of the case. “His eyes simply glazed over,” Kaufman described one of their conversations. “I wish for this Court to respect my peace inside the cell it has placed me,” Duterte wrote in his waiver, resigned to the thought of, in his words, dying in prison. “I can assure you that he’s considerably weaker, considerably frailer, considerably grayer,” Kaufman told Rappler. Duterte is fit to participate in the hearings, ruled the pre-trial chamber, affirming the findings of a panel of independent medical experts. That’s not to totally debunk the claims that he is no longer the thriving, talkative Duterte he once was. Case law at the ICC require just enough executive functions to understand what is happening. “He is in good spirits [not high spirits]; high spirits would suggest he is rejoicing. Of course, he’s not rejoicing – he’s in prison,” Kaufman told reporters after Day 4. Kaufman lost another appeal at the ICC, just very recently, regarding another route to free Duterte on the grounds of fairness of proceedings. Five judges of the appeals chamber unanimously rejected it. “In my opinion, the reasoning disclosed in the latest judgment simply reinforces the Court’s policy of never releasing any surrendered suspect in a crimes against humanity case – no matter what his personal humanitarian circumstances,” said Kaufman, whose style is as polarizing as his principal. He is applauded by Duterte supporters, and sharply criticized by anti-Duterte factions. It’s true, though, that the ICC has never once granted interim release to a suspect of crimes against humanity. It granted interim release to Kenyan lawyer Paul Gicheru, suspected of obstruction of justice – he was accused of tampering with witnesses in the case against President William Ruto. ‘We’re not desperate’ For the pro-Duterte camp, all of these just mean the ICC is desperate for a case. As Medialdea said during initial appearance, the ICC was a “troubled legal institution... desperate for a prized catch and a legal show.” “I think the ICC is fighting for its survival. And they need a former president to help them because otherwise they would have an empty caseload. They would have a very difficult time justifying the existence given that in one past assembly of state parties, the issue had already been raised [if] the court [should] continue to exist given that they’re not able to arrest many of their accused in the first place,” Harry Roque, Duterte’s former presidential adviser seeking asylum in Austria, told Rappler via Zoom a day before the hearings. “It’s not true. It is not the only case. Just last December, the German authorities surrendered to the court a Libyan suspect who is now in the court’s custody... and that’s another landmark case because these are the first proceedings for a case related to the Libyan situation. So, I would say there are others,” said Maria Elena Vignoli, senior counsel in the International Justice Program of the Human Rights Watch (HRW), speaking to Rappler outside the court after Day 1. Vignoli was referring to Khaled Mohamed Ali El Hishri, who is scheduled for a confirmation of charges in May for alleged war crimes and crimes against humanity, including torture, rape, and murder of prisoners in Libya. “We are not desperate for cases. Whoever says that, he doesn’t know how ICC works,” deputy prosecutor Niang told Rappler. Niang explains, in an ideal world, there would be no case in the ICC, because it would mean there was either no mass atrocity, or that local justice in those countries was working. “We are only competent in war crimes, crimes against humanity, or even genocide. We don’t want that to happen. So we can’t be desperate for that to happen,” Niang said. The ICC is investigating Russia’s invasion of Ukraine, and the destruction of Gaza, over which judges have issued warrants against heads of states. The ICC officials were slapped with American sanctions as a consequence, although Niang said those have not affected the Philippine case despite being a US ally. Play Video A peculiar case That Duterte supporters are holding vigils in the ICC is not a unique phenomenon. The Hague saw this before in the Kenya case, particularly with supporters of Uhuru Kenyatta and Ruto. Once rivals, Kenyatta won the 2013 presidency despite the ICC charges, and Ruto stayed in power as deputy president until he became president starting 2022. “In the minds of these supporters, it was like Ruto and Uhuru [Kenyatta] did what they did because you know they had to just do it,” Kenyan reporter Sharon Mwende of the Journalists for Justice told Rappler. Tribal loyalty played a complex role in the local politics surrounding these cases in Kenya. In some ways, that’s similar to the regional loyalty to Duterte. Many of his supporters are from Mindanao like he is, or the main southern island, who believe that it was Duterte’s tough anti-crime policies that made their streets safe. “I support the war on drugs. Of course [killing] is wrong. Killing in itself is wrong. It is unacceptable. But to underscore what happened in the war on drugs as a mere killing, ultimately [like you are just] defenseless, [killed] without any reason, is completely false,” said Alvin Sarzate, a pro-Duterte vlogger with 1.8 million followers on Facebook. Sarzate hails from Butuan, a city in Mindanao, before he moved to the Netherlands in 2017. PRO-DUTERTE. Alvin Sarzate, known to his followers as the Alvin Tourism page in green jacket in one of the vigils on Duterte street outside the prison complex before the confirmation of charges hearing at the ICC. Photo by Michelle Abad Duterte is not the first international crimes suspect to invoke his love of country, and duty as a leader. In the first ever international war crime trials in Nuremberg, Germany for the Nazi High Command, Hitler’s number two guy, Hermann Göring, said in German, “The only motive which guided me was my ardent love for my people.” Göring was convicted, in part, because the tribunal found him complicit. For Duterte, the prosecution said he is a mastermind by indirect co-perpetration. Duterte ordered, induced, aided, and abetted these killings, or at least that’s what prosecutors will convince judges he did so they could proceed to trial. “One of the peculiarities of this case, no matter what the defense say, is that, you know, it’s not always that you have self-confessed crimes of this magnitude,” Niang told Rappler, referring to Duterte’s public speeches ordering state agents to kill, or even to goad criminals to fight so there’s an excuse to shoot. “It shows that, you know, don’t be overconfident because the wheel of justice may be slow, but at one point they can catch up with you. And then all the statement you made... will really be, in fact, your own evidence against you,” said the deputy prosecutor. That the killings of alleged criminals were so brazen is also another peculiarity, said Paolina Massidda of the ICC’s Office of the Public Counsel for Victims. “One thing that also I found peculiar was the fact that the majority of these crimes were actually committed at home, in a place you should consider a safe place. And then in the streets, in the neighborhoods, where everybody could have seen,” Massidda told Rappler in an interview at the ICC after the hearings. Play Video Indirect co-perpetration Duterte did not pull the trigger on those victims. There’s also no single order signed by Duterte to kill them. So the theory of the prosecution is indirect co-perpetration, a mode of criminal liability under the Rome Statute, which requires them to show that Duterte made an essential contribution to the commission of those crimes. “That is why they rely on a few selective and vociferous individuals in the Duterte administration calling them co-perpetrators, just so it can artificially superimpose their fantasy common plan theory linking Rodrigo Duterte to the victims,” said Kaufman, appealing the judges to terminate the case. For Kaufman, Duterte’s speeches should never be taken literally. That they were just bluster. That he even said “follow the law” in some parts of those same speeches. And that all circulars that do exist tell the police to follow due process. Senior trial lawyer Julian Nicholls reminded Kaufman that the same things can be said about Ratko Mladić, convicted of genocide and crimes against humanity by the International Criminal Tribunal for the former Yugoslavia (ICTY) in 2017. “During the trials for Srebrenica and the other Bosnian Serb army crimes, every single order that turned out to be criminal, virtually every single order... from General Mladic down the chain — respect the Geneva Conventions, treat prisoners of war properly, treat civilians properly in accord with the Geneva Conventions. That was in virtually every order, and it didn’t mean anything,” said Nicholls. Such mode of criminal liability is also not unique to Duterte. Bosco Ntaganda has been convicted as indirect co-perpetrator for crimes in the Democratic Republic of the Congo. It’s also the Ntaganda case that’s sometimes cited for this mode, where the prosecution has to show that the suspect had “virtual certainty” that people were going to be killed when he did what he did – in Duterte’s case, when he spoke from podiums and told cops to kill. Relevance “If we are going to talk about Philippine centeredness, our sovereignty, surrendering the former president to an international body is basically giving up our sovereignty,” Sarzate said, when asked what topic would get him to engage in a conversation with an anti-Duterte Filipino. But even that is not a debate unique to Duterte. The “intrusive foreigners” line is a common criticism against the ICC and other international criminal tribunals. It’s the current context around the Duterte case that makes it relevant, said HRW’s Vignoli. “It’s the first confirmation of charges hearing that we see in a case related to the Asia-Pacific region, which is massive in terms of the relevance of this case at a regional level... Let’s not forget the context in which this case is happening, which is a context of brutal assault on the court, on the rule of law more broadly,” said Vignoli, referring to the US sanctions, and Russia convicting ICC officials in a local court. (The ICC prosecution is currently seeking warrants against a Myanmar leader for the persecution of Rohingyas.) When the ICC dropped the charges in the Kenya case, it did so because evidence was hard to come by, noting the intimidation of witnesses. It was not an acquittal, or a judgment of innocence. But that was all that their supporters needed to keep Ruto, for example, in power. “With the narrative that this man might have been, you know, innocent all along, it has strengthened his stronghold,” said Mwende. The same concern goes for the Duterte case. His daughter, Vice President Sara Duterte, has announced her plans to run for president in 2028. What if the prized, peculiar catch of the ICC win the case? What is going to happen to victims then? “In a process, you can never be sure 100% if you are gonna win or not,” said Massidda, “but I think it’s important to know that... it is possible... that the truth will be heard, that the voice of victims will be heard.” For Sheerah Escudero, whose 18-year-old brother Ephraim was killed in 2017, it’s now or never. They have come this far. “We trust the International Criminal Court kung paano nila i-handle itong proceedings at buo ang loob ng mga pamilya (that they will handle this case properly, and the families are resolute).. we’ll never stop fighting for justice even if it will take us more years,” Escudero said. Must Read The treacherous road to The Hague for the victims, their lawyers, and advocates – Rappler.com