Duterte ICC fitness check hits snag anew as expert faces disqualification

MANILA, Philippines — International Criminal Court prosecutors have called on judges to remove a second medical expert from the panel examining Rodrigo Duterte's fitness to stand trial over "profoundly offensive remarks" the expert posted on social media. 

The prosecution's request, filed October 22 and made public Monday, November 10, comes less than a month after it asked to drop another expert who is suspended from practice over allegations of breaching patient confidentiality and threatening or harassing behavior.  

Hiccups in the vetting process for the panel of medical experts are, once again, another delay in the process of determining whether Duterte is fit to stand trial. It's only after this medical evaluation by the three-member panel that the ICC can proceed with a confirmation of charges hearing. 

ICC Deputy Prosecutor Mame Mandiaye Niang said in the October 22 filing: "The Prosecution notes with concern the information provided by the Defence of social media activity by [REDACTED]. If this activity is attributable to [REDACTED], as it appears to be, it would render him entirely unsuitable as an expert in this (or any other) case."

Duterte's defense had been the one to discover the social media posts and filed an urgent request to disqualify him October 20. Court documents did not specify the nature of the offensive remarks.

First expert suspended over patient allegations

In separate and earlier filings also made public Monday, prosecutors and victims' representatives detailed their positions on the first expert, a neuropsychologist appointed in September who was later found to be under professional suspension.

According to the ICC Registry's observations filed on October 10, the neuropsychologist is currently unable to practice. She is currently facing allegations that "relate to breaches of patient confidentiality and concerns regarding threatening, harassing and coercive behavior." The ICC Registry had said a final determination of the case was not expected until 2026.

The ICC prosecution told the Pre-Trial Chamber I that, given the expert's ongoing suspension, the serious nature of the allegations, and the lengthy timeframe for resolution, her appointment should be revoked.

In a filing made public Monday, the Office of Public Counsel for Victims, representing the drug war victims, said it relied entirely on the ICC Registry's information when endorsing the expert's qualifications. The office noted that vetting the expert list falls within the "exclusive purview of the Registry, as the neutral organ of the Court."

"In this regard, she rejects as unfounded the Defense’s criticism that she ought to have 'conducted a simple google search' prior to endorsing the expert in question," the victims' counsel wrote. 

Prosecutors recommend replacements

In an earlier October 15 filing, the prosecution recommended several alternative neuropsychologists from a shortlist provided by the Registry, though specific names were redacted from public versions of court documents. Prosecutors said all candidates appeared qualified but highlighted certain experts as particularly suitable based on their experience assessing mental capacity in forensic contexts. The defense also indicated it found certain candidates acceptable.

Meanwhile, the Office of Public Counsel for Victims said it was leaving it to the court's discretion whether to remove the expert mentioned. It said "defers entirely to the Chamber’s discretion... once further clarifications have been obtained from the Registry that might shed light on the issue raised by the Defense." 

Stronger vetting. The ICC prosecution also told the court the Registry must adopt "more rigorous vetting" of expert candidates after the two experts recommended were found unsuitable.

In an earlier filing on October 3, the court itself had already urged the Registry to "revise its working methods, especially with regard to the vetting process of medical experts, in order to avoid a similar recurrence".

However, the prosecution said in their October 22 filing that such revisions "appear to remain necessary in order for the parties, participants, and the Chamber, to trust that the list of experts contains suitable candidates".

Duterte's request for interim release was earlier rejected by the Pre-Trial Chamber I. His fitness to stand trial is the only existing hurdle before the court can move forward with his case.

The former president faces charges related to alleged crimes against humanity during his administration's anti-drug campaign, which human rights groups say resulted in thousands of extrajudicial killings.