ICC asks prosecutors to trim witnesses, evidence in Duterte trial
MANILA, Philippines — International Criminal Court judges have asked prosecutors to reduce the number of witnesses and identify the evidence they consider essential against former President Rodrigo Duterte — an attempt to narrow the case before his trial opens November 30.
Presiding Judge Joanna Korner of ICC Trial Chamber III said medical reports on the 81-year-old former president indicate the court will have to limit its sitting hours.
"It really is important, even more important than normal, that we conclude the case as quickly as possible," she said.
The status conference on Wednesday, September 16, was the third held since the case moved to trial, after sessions on May 27 and June 23.
Status conferences are hearings where the parties settle matters ahead of the trial proper. Today's conference dealt mostly with the prosecution's submitted list of witnesses, the hours it needs to present them, its list of evidence, disclosure to the defense and the incidents prosecutors want to add.
Duterte attended in person for the first time, having waived his appearance at the first two status conferences. His only previous appearance was by video link at his initial hearing on March 14, 2025.
Court unlikely to grant prosecution request for 193 hours of testimony
Prosecutors have asked for 193 hours to present their witnesses. Korner said that once cross-examination is added, that amounts to a "very lengthy period of time."
She did not rule on the request but told prosecutors to consider dropping witnesses, particularly as the list appears to include four experts on the same topic. If prosecutors send no proposals before the next status conference, she said, the chamber will go through the list "witness by witness."
"There are obviously going to be limitations on sitting hours as is clear from the medical reports," the ICC judge said.
"For the many reasons that I don't have to go into, we are very anxious that this [case] concludes as swiftly as his possible in the circumstances," Korner said.
Edward Jeremy, prosecution trial lawyer, said the list had already been cut and is still within the 175 to 200 hours prosecutors estimated before the first status conference.
Peter Haynes, Duterte's lead counsel, said he could not estimate how long cross-examinations would take until the court decides how far to restrict the prosecution.
He said the first prosecution witness is cited in only one footnote of the trial brief yet is scheduled for six hours of questioning. That testimony, he said, would begin in 1987, "thus embracing 40 years of Philippine history."
The prosecution replied that it would not be a 40-year history
Paolina Massidda, principal counsel of the ICC Office of Public Counsel for Victims, said the victims' lawyers "will probably not question all the witnesses.
She estimated they would need 30 minutes to an hour per witness. Witnesses to the crimes may take longer, she said, because the victims' lawyers would examine their victimization in more detail.
Court seeks 'non-negotiable' evidence
Korner said the chamber was "not prepared to agree" to the prosecution's list of about 15,000 items of evidence as it stands.
She reminded prosecutors of the court's earlier warning against the "wholesale dumping" of repetitive or barely relevant material.
"You don't have to put into a case every single document that has a connection to the incident. It's those that are most capable of proving what you wish to establish," she said.
Korner said she would order prosecutors to submit, seven days before the next status conference, a list of their key evidence: "the ones that are really absolutely non-negotiable in your case."
The prosecution said they would comply.
Nature of crimes against humanity case
The prosecution explained their list of evidence is a result of the nature of the case, which tries a former president for crimes against humanity.
In such a case, ICC senior trial lawyer and prosecutor Julian Nicholls said prosecutors must show not only that the killings happened but that they formed part of a broader attack on civilians.
"It's a crimes against humanity case where we have to prove the contextual elements," he said.
"There's a lot of evidence available in this case, more than in other cases I've done, partly because the accused was a president, the head of state, in a country where there was a lot of documentation generated," he added.
The prosecution also explained that part of the list comes from a single, large collection of government and Philippine National Police records on drug war operations in which suspects were killed.
He said the records give a baseline count of about 3,422 such deaths nationwide, and the files were "an absolute mess as we received it."
Prosecutors had also cast a wide net partly because the defense has not agreed to any facts, Nicholls explained.
"So far the agreement on agreed facts has been exactly zero. At this moment, we have to prove that he was mayor of Davao," Nicholls said. He added that the defense has not responded to 52 facts prosecutors sent in June for agreement.
"We may have gone broad. We'll try to narrow it down, but there were reasons for it," he said.
Defense laments 'unworkable' evidence load
Haynes said the prosecution's list is larger than the figure Korner cited. He counted 15,529 non-witness items and 3,712 witness-related items, nearly 20,000 in all, which he said was about four times the roughly 5,000 at the confirmation of charges.
He said 80% of the incriminating items arrived in the three weeks before the August 31 disclosure deadline.
"Realistically, that number of exhibits on the list is just unworkable," Haynes said.
"We haven't got a prayer of reading 20,000 items of evidence by a trial date that starts at the end of November," he said, noting that the defense trial brief is due Oct. 30.
Haynes said total disclosure has reached 62,500 items covering 324,000 pages, plus more than 1,000 video and audio files. He said prosecutors had held the police records collection since November 2021, but the defense learned of it only on July 15, six weeks before the disclosure deadline.
According to Haynes, no one had screened the collection for material that could help Duterte. He rejected the prosecution's offer to let the defense search it: "That's not our job."
Haynes also showed the court a four-page witness statement whose pages had been disclosed as separate exhibits, with page two never found. He said a 400-page document had also arrived page by page and the defense has only 347 of its pages.
He added that a photo of a strip light had been disclosed 21 times.
Korner told prosecutors the four-page example "is not something which inspires us with much confidence."
Haynes asked the court to move the case to a new case file and cap disclosure at about 10,000 documents.
"If I had a younger and healthier client, I would invite you to put back the trial date by six months and start disclosure again, but I don't. So, I'm looking for solutions," he said.
Nicholls said Haynes' account "is not all accurate" and "really exaggerated," though he acknowledged there may be duplicates.
Korner gave the defense until September 23 to file a written motion and gave prosecutors seven days to respond.
What's next
Korner said the chamber intends to sit continuously, from November 30 until the week before the Christmas break and then from January until the Easter break, instead of in blocks separated by breaks as the Registry proposed. She said no final decision has been made.
She also raised the problem of the time difference for witnesses testifying by video link from the Philippines, which will be seven hours ahead of The Hague when the trial starts.
Nicholls proposed starting hearings at 10 a.m., and possibly as early as 8 a.m. for video-link testimony. The expert panel had recommended an 11 a.m. start. Korner said the chamber was considering 10:30 a.m.
The chamber will rule in writing on pending motions, including the prosecution's bid to add incidents and whether Duterte should undergo further medical examinations.
The chamber has yet to rule on Duterte's fitness to stand trial. In a September 14 filing, Haynes said new examinations showed Duterte was suffering from significant memory impairment and asked for further tests by a neurologist.
Prosecutors have asked the chamber to declare Duterte fit and to keep him in detention.
In January, pre-trial judges had found him fit to take part in pre-trial proceedings.
On April 23, Pre-Trial Chamber I unanimously confirmed three counts of crimes against humanity against Duterte for murder and attempted murder allegedly committed between 2011 and 2019.
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