Fit for mass crimes, fit for trial

Perhaps the popular saying “You cannot have your cake and eat it too” could apply in this case. Loosely in Filipino, “Ano ka, sinuswerte?” or “How lucky can you get?” Double jeopardy in reverse.

Despite his defense counsel’s protests, former Philippine President Rodrigo Roa Duterte will have to abide by the International Criminal Court’s (ICC) findings that he is indeed fit—fit na fit, his critics cry out from the housetops, to stand trial for crimes against humanity committed during his presidency. His bloody reign as head of state had been preceded by an equally bloody reign as mayor of Davao City, with the support of his Davao Death Squad and other characters.

Detained at the ICC’s Scheveningen Prison in The Hague since March 2025, the 80-year-old former autocrat is portrayed by his family and supporters to be of failing health and therefore not fit to stand trial. Physically slower perhaps, but mentally? It has been only four years since he stopped making kill orders publicly.

This isn’t for laughs: for the crimes against humanity that he is accused of having committed, will this incorrigible pathocrat now make a plea of insanity—temporary or otherwise—instead? An insanity plea is made by an accused who argues that he or she cannot be held criminally responsible for the crimes because of severe mental illness during the commission of the crime. This applies to crimes of passion. But seriously, and in the context of the impending trial in the land of windmills and dikes, is Duterte fit to face the charges?

The ICC, after having gone through the assessment of the Pre-Trial Chamber (PTC), said yes, “he is able to exercise his procedural rights and is therefore fit to take part in the pre-trial proceedings.” Feb. 23 is the D-Day, if you may, the start of the confirmation of charges. Expect the “Duterte Park” in the ICC vicinity to be packed with the accused’s followers spreading out an instant buffet with humba dish and all.

Of the Duterte camp’s protestations, former senator and now Mamamayang Liberal party list Rep. Leila de Lima, imprisoned and in solitary confinement for nearly seven years on the say-so of Duterte and on trumped-up charges, was quoted as saying: “We can expect more delaying tactics from [defense counsel Nicholas] Kaufman because he simply cannot defend Duterte in the trial proper. He will continue to harp on Duterte’s supposed mental incapacity in order to stop the trial. But he can only do so much in his dilatory tactics. In the end, Duterte will still face justice and pay for his crimes. Duterte cannot boast of iron will and total control for years, then plead mental unfitness when finally called to account. This ruling tells victims that in the reckoning of Duterte at the ICC, their voices will not be sidelined by technical evasions.”

In other words, at the height of his powers, starting when he was Davao City mayor and during his presidency (2016 to 2022), he exercised brute force that earned him the ire of human rights advocates, De Lima among them, but also the blind awe and reverence of his cult following. But now that he will soon be on the dock to face his victims, he invokes, through his lawyer, unfitness to stand trial? Too late to feign mental incapacity and other disabilities. He is better off just being himself, and by doing so, he can perhaps earn back some dignity for himself. Yikes, I said that? In charity, yes.

One of the two ICC-accredited lawyers for the victims, Gilbert Andres, explained that “fitness to stand trial” is not so much a medical issue as it is a legal one. (The other accredited lawyer for the victims is Joel Butuyan, who is also a columnist for the Inquirer. Both Andres and Butuyan are with the nonprofit group CenterLaw.) Does the accused understand the proceedings and can exercise his rights under the Rome Statute? Simply that, Andres said. The ICC’s PTC has studied the arguments and findings of all parties and has decided that Duterte is fit to stand trial.

Duterte should know. He is himself a lawyer and a fiscal before he entered politics. He knew the Davao terrain, the killing fields, like the back of his hand. The drug war “tokhang” orders he made as commander in chief were carried out by then Philippine National Police chief and now Sen. Ronald “Bato” dela Rosa, and resulted in thousands of deaths described as extrajudicial killings, the meat of the charges against Duterte. EJK has become synonymous with Duterte and now senator-in-hiding/AWOL Dela Rosa, who, if his luck runs out, might soon join his boss at the ICC prison, and so, the saying goes, “You can run, but you can’t hide.”