Former president Rodrigo Roa Duterte appearing for the first time before the ICC judges on 14 March 2025. Image from the International Criminal Court

The International Criminal Court Pre Trial Chamber 1 handling the crimes against humanity charge against former President Rodrigo Duterte has given the prosecution until July 1 to disclose evidence it will use for the confirmation hearing in September 23, 2025.

The order was signed by Presiding Judge Iulia Antoanella Motoc, Judge Reine Adélaïde Sophie Alapini-Gansou, and Judge María del Socorro Flores Liera. The same order sets out a timeline of activities ahead of the confirmation hearing. 

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"The Prosecution shall complete the disclosure process by no later than 1 July 2025. This includes all the evidence it intends to rely upon at the confirmation of charges hearing, including the totality of the witness statements and their translations, the exculpatory material that it has identified thus far, and the material falling under rule 77 of the Rules. Any items of evidence submitted after that date will not be taken into account for the purposes of the confirmation of charges hearing."

It added: "This finding is without prejudice to the Prosecution’s ongoing duty to provide the Defence with any exonerating evidence identified after the aforementioned time limit in accordance with article 67(2) of the Statute, without detracting from the Prosecution’s obligation to identify and disclose all the exculpatory material within the evidence already in its control and possession. This obligation shall not affect the existing time limits of the proceedings, including the timeline for the disclosure process as outlined above."

Duterte stands accused of the crime against humanity of murder over his years-long campaign against drug users and dealers that rights groups said killed thousands.

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He was detained March 11 and put on plane to the ICC in the Netherlands the same day.

In the prosecutor's application for his arrest, he said Duterte's alleged crimes were "part of a widespread and systematic attack directed against the civilian population in the Philippines".

"Potentially tens of thousands of killings were perpetrated," the prosecutor alleged of the campaign that targeted mostly poor men, often without proof they were linked to drugs.

In its order, the chamber noted that the Prosecution "intends to complete the review and disclosure of evidence currently in its possession by no later than thirty days before the confirmation hearing."

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However, the chamber also recalls that article 61(3) of the Rome Statute refers to ‘a reasonable time before the hearing’ and that the related time limit specified in rule 121(3) of the Rules is only indicative of the minimum notice period a party may avail itself of to comply with its disclosure obligations.

"This time limit allows the Defence to prepare adequately for the confirmation hearing in accordance with article 67(1)(b) of the Statute. Thus, the Prosecution shall expeditiously discharge its disclosure obligations as soon as practicable on a rolling basis and not only on the date when the deadline indicated by the statutory documents, as amended in this order, expires."

The chamber also wants the prosecution to submit the names of the witnesses it will present in the confirmation hearing as well as a summary of their testimonies.

"Noting that the Prosecution ‘presently intends to call a maximum of two witnesses to testify viva voce at the confirmation hearing’,the Chamber instructs the Prosecution to submit any requests to that effect including: (i) a list of its proposed viva voce witnesses; (ii) a summary of the witnesses’ evidence and the aspects of the Prosecution’s case this evidence is said to support; and (iii) the reasons in support of the request, bearing in mind that ‘[u]se of live evidence at the confirmation hearing should be exceptional and should be subject to specific authorisation by the Pre-Trial Chamber’ and that ‘[t]he parties must satisfactorily demonstrate that the proposed oral testimony cannot be properly substituted by a written statement or other documentary evidence’.

The order said the request shall be submitted by no later than the date of the completion of the disclosure process----July 1, 2025.

Likewise, the  chamber ordered the Prosecution to  submit any requests pursuant to rules 87 and/or 88 of the Rules, including with regard to the witnesses it intends to call to testify viva voce,  accompanied by the completed security assessments for the witnesses in question, by the same time limit.

The chamber also ordered the prosecution to submit a Document Containing the Charges that is limited to the essential factual and legal elements of the charges that the Prosecution is requesting the Chamber to confirm as the basis for a potential trial against a suspect.

"In order for the DCC to be fully informative for the Defence in its preparation and the Chamber for the drafting of the decision pursuant to article 61(7) of the Statute, the Prosecution shall therefore submit a DCC setting out the relevant factual and legal elements in relation to (1) the alleged contextual elements; (2) each alleged crime and alleged instance of an underlying crime; and (3) each alleged mode of liability. For each topic, the Prosecution shall indicate, to the extent applicable, (i) the alleged perpetrators and/or other relevant actors; (ii) the alleged conduct and/or consequences; (iii) the alleged location of the alleged crime or related conduct; (iv) the alleged time-frame(s) of the alleged crime and/or related conduct; (v) the alleged (approximate) number and identity of victims, dependent on the nature of the alleged crime; (vi) the alleged mental state of Mr Duterte and/or other relevant actors; (vii) any other essential factual aspect pertaining to the constitutive legal elements of the proposed charge; and (viii) a legal characterisation."

The chamber also wants a pre-confirmation brief (PCB) submitted with the DCC with a view to setting out its factual and legal argumentation in support of the charges proposed for confirmation, as well as the evidence it relies upon. "The purpose of the PCB is to substantiate the specific factual and legal elements of the proposed charges in the DCC."

Under the order, the Prosecution shall submit the DCC, together with the list of evidence and the PCB, at the latest on 4 July 2025. "The DCC shall not exceed 30 pages in accordance with regulation 38(3)(g) of the Regulations, while the PCB shall not exceed 90 pages. Furthermore, the Chamber orders the Prosecution to ensure that the list of evidence to be submitted pursuant to rule 121(3) of the Rules does not exceed 60 pages and only contains the evidentiary items referenced in the PCB."

The same order  reiterates that the confirmation of charges procedure is of a limited scope and should not devolve into a mini-trial. It also prescribes the regime for the disclosure of evidence.

The order also sets timelines for the possible amendment of charges and new evidence by the prosecution on August 20, 2025 and for new evidence from the Defence by September 5, 2025. It also set deadlines for dates in August 2025 for victims to apply to participate.

AMICUS CURIAE OBSERVATIONS

The ICC Chamber also wants its Registry to organise common legal representation for the victims.

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Meanwhile, the chamber also rejected a confidential request to submit amicus curae observations which both the prosecution and defence opposed.

"While the Defence has anticipated that it will ‘raise a challenge pursuant to Article 19(2) of the Rome Statute in due course’, the Chamber is not currently seized of the matter. At this stage of the proceedings, the Chamber cannot determine whether it is desirable for the proper determination of the case to receive amicus curiae observations. Therefore, the Rule 103 Request is premature and shall be rejected."

The order also adopts procedures for the filing of future submissions or observations.

"Any requests for authorisation must be limited to three pages (excluding notification pages). The Registry will only transmit requests that abide by the instructions in the template. The Registry’s transmission filings, as well as the accompanying request and any other annexes, if applicable, shall initially be classified as confidential, unless cogent reasons require more restrictive classification. The Registry may transmit multiple requests for authorisation to make submissions into the record with a single transmission filing, where appropriate."