The Dementia Defense: Duterte’s Convenient Amnesia Act at the ICC

From Blood-Soaked Bravado to Convenient Brain Fog: Duterte’s ICC Escape Plan

By Louis ‘Barok‘ C. Biraogo — September 12, 2025

VISUALIZE Rodrigo Duterte, the swaggering, curse-slinging autocrat who bragged about blasting drug dealers like it was a national pastime, now claiming he’s too senile to face the ICC’s spotlight. His lawyer, Nicholas Kaufman, has unleashed the ultimate courtroom plot twist: a “cognitive decline” so dire it’s supposedly curtains for the ICC’s case against him for alleged crimes against humanity. Welcome to The Dementia Defense, a legal farce where the once-ferocious “Punisher” is now too foggy to face the music. Are we buying this? Hell no. And neither should you.

Kaufman’s Grand Illusion: A Masterclass in Misdirection

Nicholas Kaufman, that slick maestro of legal theatrics, is playing a tear-jerker on the world’s tiniest violin, crooning about Duterte’s crumbling mind. His weapon? Article 67 of the Rome Statute, which guarantees fair trial rights—like understanding the charges and not just drooling in the dock. Kaufman claims Duterte’s memory is so shot he can’t recall his own blood-soaked “war on drugs,” let alone mount a defense. Oh, the humanity! Never mind the thousands gunned down without trials, rights, or mercy during Duterte’s reign. The irony’s thicker than Manila’s smog.

Cynical Shield: Kaufman’s waving Article 67 like a get-out-of-jail-free card, arguing Duterte’s too frail to face justice. But let’s be real: fair trial rights were conspicuously absent for the street-level corpses of his drug war. This is impunity dressed up as compassion.
Stalling 101: He whines about “bureaucratic red tape” from the ICC’s Registry slowing access to neutral medical experts. It’s a page ripped from the Slobodan Milošević Playbook for Postponing Inevitability—stall, deflect, repeat. Think faking a limp to skip gym class, but with higher stakes.
Medical Miracle: The real gag? Duterte’s kids—Veronica and crew—are telling the press their dad’s sharp as ever, dissecting legal strategies and political intrigue like a caffeinated pundit. A man who can’t name his grandkids one day but can parse ICC briefs the next? That’s not dementia; that’s Oscar-worthy acting. Kaufman’s selling snake oil, and it’s not even convincing.

The Pre-Trial Chamber’s Preposterous Pause: A Procedural Facepalm

In a 2-1 split, the ICC’s Pre-Trial Chamber hit pause on the September 23, 2025, confirmation hearing to mull Duterte’s fitness. Enter Judge María del Socorro Flores Liera, the lone voice of reason in this judicial circus. Her dissent is a legal Molotov cocktail: the Pre-Trial Chamber is way out of its lane, meddling in trial-level fitness questions (an Article 64 issue) when its job is confirming charges under Article 61. This isn’t just a procedural foul—it’s a full-on referee ejection.

Dissenting Clarity: Flores Liera rightly calls out the majority for overreaching. Fitness is for the Trial Chamber to sort out, not a pre-trial panel playing doctor. This is a Category 5 jurisdictional screw-up that could spark appeals galore.
Victims Betrayed: Article 68 demands respect for victims’ rights, yet this delay is a knife in the back for thousands waiting years for justice. The Ateneo Human Rights Center nails it: every postponement re-victimizes survivors, spitting on the principle that “justice delayed is justice denied.” The Chamber’s hesitation isn’t neutral—it’s a win for Team Duterte and a middle finger to the dead.

The Ongwen Precedent: Been There, Seen That

The ICC’s no stranger to this script, thanks to Dominic Ongwen. The Ugandan warlord tried the mental health card, claiming PTSD made him unfit. The Court’s response? Prove it. The standard isn’t “I’ve got a diagnosis”; it’s whether you can functionally understand charges and instruct counsel (Ongwen, ICC-02/04-01/15). Court-appointed doctors found Ongwen “oriented in time” and fit to stand trial, despite his issues. Kaufman’s flimsy house of cards is headed for the same dumpster.

Functional Test: Under Rule 113, the ICC will likely tap neutral, Registry-approved experts to examine Duterte. Bet on them seeing through this charade—Duterte’s probably lucid enough to snarl through a defense, just like he did through six years of presidency.
No Free Pass: Ongwen’s precedent is clear: illness doesn’t equal unfitness. Kaufman’s banking on sympathy, but the ICC’s not running a nursing home. Expect a swift reality check when neutral experts report back.

The Stakes: Beyond One Tyrant

This isn’t just about Duterte; it’s about the ICC’s soul. If the Court lets a former president slink away via a dubious health claim, it’s open season for every aging dictator to fake a cough and dodge The Hague. The ICC’s credibility is already on shaky ground—flinch here, and it’s a global punchline. For the Philippines, it’s a gut-wrenching insult: a man who mocked international law could weasel out by pretending he forgot why he’s there. It’s the ultimate tragic twist in a saga of bloodshed.

ICC’s Credibility: A weak ruling risks turning the Court into a retirement home for war criminals. Every autocrat over 70 will start clutching their chest and claiming amnesia.
Philippine Fallout: Letting Duterte skate would mock the thousands killed in his drug war, cementing impunity as the Philippines’ national sport.
The Fix: The Pre-Trial Chamber needs to stop dithering. Either dismiss Kaufman’s motion as the frivolous stall tactic it is or order a swift independent medical exam under Rule 113. No more defense-friendly quacks—bring in the Court’s own experts to call Duterte’s bluff. Then, race to the confirmation hearing. The world’s watching, and the ICC can’t afford to star in this telenovela any longer.

Key Citations

Rome Statute, Article 67(1): Rights of the accused to a fair trial, including presence and effective participation.
Rome Statute, Article 64(2): Trial Chamber’s mandate to ensure fair and expeditious trials, including fitness determinations.
Rome Statute, Article 61: Pre-Trial Chamber’s role in confirming charges.
Rome Statute, Article 68: Victims’ rights to participation and protection.
ICC Rules of Procedure and Evidence, Rule 113: Authorizes medical examinations for fitness assessments.
Ongwen Case (ICC-02/04-01/15): Established functional test for fitness to stand trial, requiring ability to understand charges and instruct counsel. Link
Rappler, September 11, 2025: Duterte has ‘deteriorating cognitive condition,’ says lawyer. What now?
Manila Bulletin, September 9, 2025: ‘Every postponement is another denial of justice’: Ateneo Human Rights Center hits ICC delay in Duterte drug war case