Duterte’s ICC Gambit—Delay, Deny, and Defy Justice

By Louis ‘Barok‘ C. Biraogo — June 2, 2025

RODRIGO Duterte’s legal team isn’t just fighting a case; they’re waging a war of attrition. At 80 years old, confined in Scheveningen Prison, the former Philippine president faces International Criminal Court (ICC) charges for crimes against humanity tied to his brutal drug war. His lawyers, led by Nicholas Kaufman, have launched a calculated double-barreled attack: a May 1 “excusal” bid for two judges, swiftly rejected, followed by a May 9 disqualification motion. These moves, cloaked in claims of judicial bias, reek of a deliberate strategy to stall proceedings until Duterte’s age—or mortality—renders justice moot. The ICC, victims’ families, and the global fight against impunity hang in the balance. Can the court outmaneuver this procedural sabotage, or will Duterte’s legacy of violence slip through the cracks?

1. The Defense’s Delay Playbook: A Ticking Clock

Duterte’s defense has fired two shots at Pre-Trial Chamber I judges Reine Alapini-Gansou and María del Socorro Flores Liera. The May 1, 2025, excusal request, dismissed by May 6 as procedurally improper, argued the judges’ prior rulings created a “perception of bias.” Undeterred, the defense doubled down on May 9 with a formal disqualification motion to the ICC Presidency, claiming the judges’ “firm opinion” on jurisdiction taints their impartiality. This one-two punch isn’t just legal posturing—it’s a calculated bid to paralyze the court.

At 80, Duterte’s age is the defense’s unspoken trump card. Each procedural hurdle—whether a Plenary review or potential appeals—could delay the September 23, 2025, confirmation hearing by months. Deputy Prosecutor Mame Mandiaye Niang warned that such tactics risk “paralyzing the court” by forcing endless chamber reshuffles. With an estimated 30,000 killed in Duterte’s drug war, victims’ lawyer Kristina Conti underscores the human cost: “Delays deny justice to families.” The defense’s strategy seems clear—stretch the timeline, exploit Duterte’s mortality, and evade accountability.

The timing is no coincidence. The Philippines’ midterm elections on May 12, 2025, and rumors of Vice President Sara Duterte’s impeachment add a political edge. Kaufman’s motions align with domestic turmoil, potentially aiming to muddy the waters and rally Duterte’s base by framing the ICC as a foreign interloper. This isn’t just lawyering; it’s theater, with justice as the casualty.

2. Legal Validity: Rome Statute and Precedents Under Scrutiny

The defense’s disqualification bid hinges on Article 41(2) of the Rome Statute, which mandates a judge’s removal if their impartiality “might reasonably be doubted.” Kaufman argues that Judges Alapini-Gansou and Flores Liera, having authorized the 2021 investigation and its 2023 resumption, are irreparably biased on the jurisdictional question. He claims their prior rulings—greenlighting probes into Duterte’s drug war—prejudge the case, violating Duterte’s right to “objectively impartial adjudication.”

The judges and prosecution dismantle this argument with surgical precision. In their May 22 submission, Alapini-Gansou and Flores Liera assert their rulings were “provisional” and “without prejudice” under Article 19(6), which allows jurisdictional issues to be revisited as new evidence emerges. They argue judges are “professionals capable of deciding on issues… solely and exclusively on the evidence,” rejecting Kaufman’s claim as “untenable.” Deputy Prosecutor Niang echoes this, citing the ICC’s presumption of impartiality and warning that disqualification on these grounds would set a dangerous precedent, bogging down future cases.

Precedents bolster the judges’ stance. In Prosecutor v. Gbagbo (ICC-02/11-01/11), the ICC rejected disqualification claims based on prior judicial involvement, affirming that professional judges can compartmentalize rulings across procedural stages. Similarly, in Prosecutor v. Stanišić and Župljanin (IT-08-91-A), the ICTY held that prior involvement doesn’t automatically signal bias; each case requires a specific showing of partiality, which Kaufman’s team has failed to provide. The defense’s argument—that no new evidence could sway the judges—ignores the layered nature of ICC proceedings, where preliminary rulings don’t lock in final outcomes.

On jurisdiction, the defense’s challenge to ICC authority post-Philippines’ 2019 withdrawal is equally flimsy. Article 127(2) explicitly states that withdrawal doesn’t affect “criminal investigations and proceedings” commenced before the effective date. The ICC’s preliminary examination began in 2018, well before the Philippines’ exit, and covers crimes from 2011 to 2019. The Philippine Supreme Court’s 2021 ruling reinforces this, affirming the country’s duty to cooperate with ongoing ICC probes. Kaufman’s attempt to parse “jurisdiction” from “exercise of jurisdiction” is a semantic sleight-of-hand, contradicted by clear statutory language and the court’s consistent application in cases like Prosecutor v. Lubanga.

3. Broader Implications: Accountability on the Brink

The defense’s tactics expose deeper tensions in international justice. Their demand for “irreproachable” judges sounds noble but serves as a smokescreen. By framing routine judicial duties as bias, they exploit the ICC’s commitment to fairness to grind proceedings to a halt. This isn’t just about Duterte—it’s a blueprint for future defendants to weaponize procedural rights against accountability.

The political subtext is impossible to ignore. The Marcos administration’s cooperation with Interpol (not the ICC directly) to arrest Duterte suggests a strategic pivot, possibly to neutralize a political rival amid midterm election chaos and Sara Duterte’s impeachment trial. This raises questions about the ICC’s independence: is it being used as a pawn in Philippine power plays? Southeast Asia’s skepticism of the ICC, rooted in fears of external interference, only grows as Duterte’s case becomes a political lightning rod.

For victims, the stakes are existential. Lawyer Kristina Conti’s plea resonates: delays rob families of justice for the estimated 30,000 killed. The ICC’s decision to allow victims to participate using “unofficial identity documents” acknowledges their urgency, but procedural snags threaten to drown their voices. Duterte’s age amplifies this risk—his death before a verdict would be a symbolic victory for impunity, leaving victims without closure and the ICC’s legitimacy battered.

4. Recommendations: Cutting Through the Fog

ICC Plenary Action: The Plenary of Judges must swiftly reject the disqualification bid, citing Rule 34 of the Rules of Procedure and the Gbagbo precedent. A clear ruling will deter future frivolous challenges and uphold Judicial Economy.
Prosecution Push: The Office of the Prosecutor should stick to its July 1 evidence disclosure deadline, leveraging the 320 pieces of evidence—including 16 hours of audio-video and 9,000 pages of documents—to keep the September hearing on track. Expedited filings can counter defense stalling.
Transparency Imperative: The ICC should reclassify confidential filings where possible, addressing public skepticism about the court’s process. Transparency will bolster trust, especially in a region wary of the ICC’s motives.

Conclusion: A Race Against Time

Duterte’s defense isn’t just challenging judges; they’re betting on time as their ultimate ally. The ICC faces a stark choice: let procedural gamesmanship erode its mandate or assert its authority to deliver justice before Duterte’s clock runs out. With victims’ families waiting and the world watching, the court must prove it can outpace a dictator’s last gambit. The September 23 hearing looms—will it be a step toward accountability or another delay in a legacy of bloodshed?

Key References

Rome Statute of the International Criminal Court – Full text of the ICC’s founding treaty, including Articles 41, 19, and 127.
ICC Pre-Trial Chamber I Authorizes Investigation in Philippines (2021) – Decision authorizing the initial investigation into Duterte’s drug war.
ICC Pre-Trial Chamber I Authorizes Resumption of Investigation (2023) – Decision to resume the suspended probe.
ICC Court Record ICC-01/21-7 (May 6, 2025) – Rejection of the defense’s excusal request (PDF).
ICC Court Record ICC-01/21-8 (May 9, 2025) – Defense’s disqualification motion .
ICC Court Record ICC-01/21-9 (May 22, 2025) – Judges’ submission defending impartiality (PDF).
Prosecutor v. Gbagbo (ICC-02/11-01/11) – ICC case affirming judges’ ability to rule impartially despite prior involvement.
Prosecutor v. Stanišić and Župljanin (IT-08-91-A) – ICTY case on disqualification standards.
Prosecutor v. Lubanga (ICC-01/04-01/06) – ICC case supporting jurisdictional continuity post-withdrawal.
Philippine Supreme Court Resolution on ICC Cooperation (2021) – Affirming the Philippines’ duty to cooperate with ICC probes.
Philippines Midterm Elections 2025 Explainer – Context on political developments.
ICC Rules of Procedure and Evidence – Including Rule 34 on judicial impartiality (PDF).

Disclaimer: This is legal jazz, not gospel. It’s all about interpretation, not absolutes. So, listen closely, but don’t take it as the final word.