The Factual / Legal Context
From recent reports:
The defense for former Philippine President Rodrigo Duterte has filed a request (in August 2025) that the ICC adjudge him unfit to stand trial, citing “cognitive deterioration … impairing memory, reasoning, executive functioning, orientation, etc.”
ICC Pre-Trial Chamber I has postponed the confirmation of charges hearing (scheduled for September 23, 2025) in order to assess whether Duterte is medically fit to participate in pre-trial proceedings; judges granted a deferral “limited to time strictly necessary” to determine fitness.
One ICC-accredited lawyer has publicly said there is “no basis” to declare Duterte mentally unfit.
Thus the legal question is: under the Rome Statute, ICC Rules / jurisprudence, what is the standard / procedure for determining fitness (i.e. capacity) to stand trial, what precedents exist, what outcomes are possible, and how the Duterte case fits (so far).
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Relevant Legal Provisions
Here are the key provisions of the Rome Statute and ICC Rules / jurisprudence relevant to fitness to stand trial / fitness to participate in proceedings:
1. Rome Statute of the ICC
Article 64(2): The chamber shall ensure that the accused receives a fair hearing; that includes that the accused be able to understand the nature of charges and proceedings.
Article 66 (presumption of innocence) and other fair trial guarantees pertain. While there is no express article in the Statute that states “if an accused is unfit, the proceedings must be terminated,” there are procedural rules dealing with mental capacity and fitness.
2. ICC Rules of Procedure and Evidence (RPE)
Rule 135: This is central. It allows the Trial Chamber to order mental health / medical evaluations, to “postpone” the trial or pretrial as necessary. The exact wording includes provisions to examine mental capacity (“mental health” of the accused) to determine fitness to stand trial.
Also, periodic review under some rules: fitness may be examined every certain time interval if there is reason.
3. Threshold / Standard / Burden of Proof
The burden generally lies with the defense (accused) to show unfitness (i.e. that they are unable to meaningfully participate) by a standard of proof (often “balance of probabilities”).
The standard is not purely medical or about a diagnosis per se; rather it is about capacities: to understand the charges, to follow proceedings, to consult and instruct counsel, to comprehend consequences.
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Key ICC / International Tribunal Jurisprudence
There have been several ICC or related tribunal cases that bear directly on this issue. These illuminate what has been done before, what standards used, and how rare certain outcomes are.
Al Hassan (Trial Chamber X, May 2021) -
The Chamber dealt with a defence motion on “ongoing fitness to stand trial”. The ruling held that the accused must retain capacities to understand the charges, proceedings, potential consequences, to consult with counsel, etc. It also approved ordering medical / expert evaluations. In Al Hassan, the trial chamber held that he was unfit to stand trial at a certain point (or at least raised serious concerns) and postponed.
Mahamat Said Abdel Kani (“Said” case, CAR II) -
A Trial Chamber decision (15 December 2023) on fitness to stand trial. In this instance, a redacted public decision exists concerning fitness issues.
Dominic Ongwen (Uganda, LRA case) Defence attempted various mental health/psychological related defenses including fitness to stand trial, insanity, mitigation for sentencing, etc. The court ultimately found him fit to stand trial. The Ongwen case is illustrative of how fitness issues are raised and resolved (with expert reports, hearings) but fitness was affirmed.
Félicien Kabuga (IRMCT, residual mechanism)
-- This is perhaps the most high profile recent case of an aging accused. Kabuga was found unfit due to dementia, and proceedings were “indefinitely stayed” (i.e. essentially suspended) due to health reasons.
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What the ICC Has Not Done / Legal Gaps
In addition to what jurisprudence exists, there are points of uncertain doctrine or practice:
1. No definitive ICC decision yet (as of late 2025) that has TERMINATED proceedings solely on the ground of UNFITNESS (i.e. that the accused will never be fit) under Rome Statute rules. The practice has been more of POSTPONEMENT / stay. The Kabuga case (through IRMCT) is relevant, but IRMCT is a different institutional structure (Residual Mechanism) though standing in some continuity.
2. Ambiguity about whether “unfitness” can lead to PERMANENT DISMISSAL vs temporary stay / postponement under the Rome Statute. The Rome Statute and ICC RPE do not explicitly outline termination due to unfitness; but through interpretation (especially Rule 135) and precedents, the Court has developed practice for POSTPONING; INDEFINITE STAYS (in IRMCT, etc.) have happened.
3. Lack of detailed/specific standards in some cases regarding what specific medical evidence is needed, how severe cognitive decline must be, what exact capacities must be lost (memory, orientation, reasoning vs understanding procedural rights), etc. The “fitness” test tends to require CONTEXT and EXPERT TESTIMONY. There is still normative (and empirical) work under way.
4. Procedural timing: whether fitness is assessed pre-trial, at trial, periodically, whether delays are tolerable, whether the rights of victims are balanced against delays, etc. Also whether the Pre-Trial vs Trial Chambers have sole competence over certain determinations. The recent Duterte case shows conflict: some judges think pre-trial chamber has competence to defer, others dissent.
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Application to Duterte’s Case: How the Precedents Map
Given the above, the Duterte case so far reflects many of the procedural and doctrinal features seen in precedent. Some observations:
1. The defense has alleged cognitive decline impairing critical capacities (memory, reasoning, orientation), invoking the fitness doctrine. That is consistent with what “unfitness” claims have required in prior cases.
2. The ICC has responded under Rule 135 / related procedural rules by postponing the confirmation hearing to allow for an assessment of fitness. This is in line with past practice: the Court ordering EXPERT medical / psychiatric evaluations, postponements until fitness is determined. The deferral is LIMITED in time (“strictly necessary”) per ICC decision.
3. The defense bears the burden to show unfitness, on a standard that is not trivial but also not overwhelmingly high, likely balance of probabilities. So far, the public reports do not indicate that the ICC has accepted that burden. The lawyer saying “no basis” may reflect either public perception or preliminary assessment.
4. As yet, there is no ICC judgement (in this case) that has found Duterte unfit; and the Court has not terminated proceedings; instead, the proceedings are PAUSED for FURTHER EVALUATION. This matches pattern: in ICC jurisprudence, very few cases reach the point where unfitness is affirmed; more often there is postponement or stay, unless evidence is compelling.
5. Given Duterte’s age and the nature of health claims, comparison is being made with Kabuga; but Kabuga is rare. Thus although precedentially relevant, ICC jurisprudence suggests boards are cautious, requiring strong medical-evidentiary showing before declaring permanent unfitness or dismissing charges.
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Doctrinal Analysis and Critical Issues
Here are some deeper doctrinal and normative issues that emerge, especially important for opinion makers and academic readers:
Fair trial rights vs. right to justice / victims’ rights: The ICC must balance the accused’s right to participate meaningfully, understand proceedings, etc., with victims’ rights to have their claims processed without undue delay. The Rome Statute embodies both. In postponement cases, the length of delay, the transparency of medical assessments will be under scrutiny.
Medical secrecy vs public interest: Many filings in the Duterte case are redacted re health conditions. Medical evidence is often confidential, but OVERUSE of REDACTIONS may limit public scrutiny. Precedents act with both medical experts and judges, but transparency is often limited.
Scope and permanency of fitness findings: Does being found unfit permanently preclude trial? In Kabuga, the proceedings were indefinitely stayed (i.e. not terminated, but suspended) due to dementia. Could a future ICC decision do so for Duterte if medical evidence shows irreversible condition? Perhaps, but no precedent within the ICC (excluding residual mechanism / IRMCT) for permanent dismissal based solely on unfitness.
Reversibility / periodic review: Many jurisprudential examples require that fitness assessments be periodic if condition could improve. Courts have tended toward adjournment / stay, not outright dismissal, unless irreversibility is established.
Institutional gap: As Leiden Law Blog and other commentary point out, there is a procedural gap: Rule 135 allows postponement / evaluation; but there is no express provision for permanent termination of proceedings purely on unfitness (unless interpreted via “exceptional circumstances” such as “grave and manifest miscarriage of justice”) under Article 85 etc.
Standards of proof / burden: The defense must show unfitness; the standard in ICC / international law has been “on the balance of probabilities” (or such equivalent). Mere speculative decline, subjective claims, or vague medical affidavits may not satisfy the burden unless supported by credible expertise.
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Conclusions (as of 2025)
Summarizing, and projecting possible paths:
Under current ICC law, there is a recognized doctrine of fitness to stand trial; the Court has procedural mechanisms (Rule 135, expert assessment, hearing postponement) to address claims that an accused cannot meaningfully participate / understand proceedings.
Until now, no case involving comparable health claims (old age, dementia / cognitive decline) has resulted in a confirmed finding by the ICC that an accused is permanently unfit (with resultant termination of proceedings) absent extremely strong evidence (e.g. in Kabuga via the IRMCT). The burden is high.
In Duterte’s case, the ICC has so far only deferred / postponed hearings to allow for health / fitness assessment; it has not yet made a ruling on unfitness. The lawyer’s statement that there is “no basis” may be reflecting that no medical report yet has (in their view) satisfied the legal threshold, or that the legal standard remains unmet.
If credible expert medical evidence shows irreversible cognitive impairment that deprives Duterte of capacities required, then the Court could in theory make a finding of unfitness. That could lead to, depending on what the Statute allows, an indefinite stay. But termination (i.e. dismissal or acquittal or closure) is not clearly foreseen in all circumstances under the Rome Statute — it would require interpretation, possible invocation of “exceptional circumstances,” possibly even appeals.
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Read
https://www.philstar.com/headlines/2025/09/14/2472677/icc-lawyer-no-basis-declare-duterte-mentally-unfit
https://www.researchgate.net/publication/388561495_Doctrine_of_Fitness_to_Stand_Trial_in_International_Criminal_Law
https://www.leidenlawblog.nl/articles/too-unfit-to-face-justice?utm_source=chatgpt.com
https://jaapl.org/content/early/2023/01/10/JAAPL.220034-21?utm_source=chatgpt.com
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Assisted by ChatGPT AI app, September 17, 2025.
