LIVE | Duterte sa ICC: First Status Conference (May 27, 2026) PART 2

Added: 2026-05-30

[00:00:14]Please be seated. We are USA.

[00:00:26]Yes. Um, as I say, the next item is that of disclosure.

[00:00:34]Um, Mr. Nichols, you you said in your submissions um that there were still ongoing investigations.

[00:00:54]Um, sorry, I'm just going to find it.

[00:01:02]How is 22 to 23 your um and you're effectively still collecting evidence um and indeed want to reinter as I understand the the the matter.

[00:01:34]Um, you you have access to the to the Philippines.

[00:01:44]>> Can we maybe go into private session?

[00:01:46]>> Yes. Private session, please.

[00:04:27]We are backing open session mid.

[00:04:30]>> Yes. The um the second uh matter that um has been raised by you is um the question of um adding new incidents which the pre-trial chamber left open.

[00:04:50]Um and not surprisingly um the defense aren't very happy about that.

[00:04:56]Um I I think uh we're going to have to give you um a deadline um in in which uh if you want to add new incidents um you're going to have to comply with that deadline and and it's likely to be when um we give you the deadline for disclosure.

[00:05:18]>> Your honor, our our date we were going to propose would be was going to be the end of August. Um, and I can say that we uh are being conservative in in in any new um incidents we're adding. So, uh it will not be a a huge un unmanageable number.

[00:05:42]>> Yeah. Um that sounds as though you are going to be applying to add new incidents.

[00:05:48]>> Yes, I imagine we will. But but I think it will be a few. Some of them are related to existing witnesses where we got more evidence. Some is is material that's come in soon, but that fits perfectly within the theory and is just really part of the same case. So, but but it will not be a huge number, >> right? Yes. All right. Um then, Mr. Haynes, anything you want to say? I mean, as I say, we understand your dissatisfaction.

[00:06:18]Um, >> your honor, this this was going to be the only item on which I made any substantive submissions today, but in the light of uh Mr. Nichols comments, perhaps I'll wait to see what is proposed. Um, I I'll give you it in outline. Uh we we regard the pleading of what are in effect charges as um something else, instances or whatever as as a device to get round the fact that what is in fact being done here is extra charges are being added after committ which of course would require a return to the pre-trial chamber under article 619.

[00:07:02]This is a very unusually pleaded dcc. I think if you look back at Abdel Raman, you'll see that what in that case would have been a topical heading by geographical location or similar here has been pleaded as a account which in old money I think you and I would have regarded as duplicitus because it alleges 19 murders as a single charge and of course thereby deprivives the trial chamber of delivering different verdicts on each of the underlying acts. But as I've said, I'll keep my powder dry for today. Um, we're not going to be silly. Uh, our real concern is what the the parameters of this trial are. Uh, if we are to investigate say even 50 plus um episodes, then then that's manageable. But if the suggestion is that we are in effect in a sort of public inquiry here which spans 300,000 square kilometers and a nation of 120 million people over 7 and a half years then then this trial really is going to get out of hand and our investigations will be impossible.

[00:08:18]>> Yeah. Well, Mr. Haynes, um that's fine.

[00:08:22]I mean until such time as we see what the prosecution is proposing. I mean your problem is that the trial pre-trial train has specifically left it open. Um and um I suppose it it's um if you go back to the old days it's it's like pleading a fraud with all sorts of different instances which are examples of the fraud.

[00:08:47]>> Yes.

[00:08:48]>> Um but anyhow we'll we'll um I'm sure that Mr. Mr. Nichols has heard what you're saying. Um and and Mr. Nichols is fully aware that the the trial chamber um has every intention of this trial proceeding expeditiously.

[00:09:01]>> Thank you. I I'll speak to my friend when we have a chance and I I think I'll be able to put his mind at rest.

[00:09:08]>> Yeah. Yes. Thank you very much. Um again, Mr. Mer, I don't think there's anything that affects you on that. Um yes. Or the registry.

[00:09:17]Um so um on the question of outstanding disclosure um I I think both of you are agreed and can we um uh emphasize that the trial chamber thinks is very sensible. Um disclosure will go on a rolling basis as before.

[00:09:44]Um and um the the same deadline effectively is going to apply to to um all of this um uh these matters of disclosure and the like. Um yes. And if there's to be um any request for delayed disclosure, could you send that uh could you file a motion to that effect as soon as possible, please, Mr. Nichols? And you've got to show good cause as you might expect.

[00:10:20]>> Yes, your honor.

[00:10:21]>> Right. Um all right. Well, having said disclosure like take more time. Mr. Haynes, having kept his powder dry, we can move on to transcription.

[00:10:36]Uh, any updates on what you said at paragraph 28, Mr. Nichols, or is it more or less the same?

[00:10:42]>> It's no update, your honor.

[00:10:44]>> Right. Um, uh, yes. And we'll, and we'll, as I say, produce the same deadline.

[00:10:53]Um, right. Witness protection.

[00:10:57]Um, as I understand it, um, from paragraph 31, Mr. Nichols, you will work towards disclose disclosing the identity of all witnesses by the end of September 2026.

[00:11:17]Does that mean also any new witnesses that you're intending to propose?

[00:11:29]Yes, your honor.

[00:11:30]>> All right.

[00:11:32]Um, I mean, if you want to give any updates, they ought to be, I suppose, in private session.

[00:11:39]>> Yeah. No, I I don't think any updates.

[00:11:41]It's just, as you said just a moment ago, if if we need to apply for delay disclosure of an identity, we'll do that >> as soon as possible.

[00:11:52]>> All right. And if Yeah. If there are um going to be any discussions about that or anything which needs to be ex partyed then we'll we'll deal with that um at the next status conference or anything that needs to be um in session.

[00:12:13]Um and yes, protective measures obviously as soon as possible.

[00:12:24]Um actually I I think nonetheless we'll just briefly go into private session uh for a moment.

[00:17:22]We are back in open session. Madam President, >> thank you very much. Um, a disclosure by the defense uh of any um defenses in accordance with rule 7980 and at the moment I understand um there are none.

[00:17:39]Is that right?

[00:17:43]>> Yes. I've I've never known how you could have an alibi to a JCE.

[00:17:47]>> No. Well, um yes. Um, in the uh conduct of proceedings, we'll deal with um disclosure in respect of um cross-examination um uh of witnesses um uh uh disclosure which must be made in advance but um I don't think we need to do that. Um right.

[00:18:18]Uh, okay. Um, trial briefs, I think, was the next. Um, uh, Mr. Nichols, the OTP says, uh, it would it uh two months before I think the start of trial. Uh, you say the 30 of September if it happened to be the 30th of November. Yeah.

[00:18:46]Um and uh yes uh the defense um Miss Haynes, you have the option, although there's something I'm going to add in a moment, uh but you have the option of of of a pre-trial brief as it were at the be after the prosecution or before you begin your case. And I rather assume that you want to do it before you begin your case.

[00:19:20]>> Uh well, whenever I deliver it, it'll say these are not crimes against humanity. You can have it now if you want.

[00:19:26]>> Well, thank you very much. But there is however um there's an added extra um uh thing that I want to say about um ruling that I want to give about um this um which won't surprise Mr. Nicholls nor I imagine you Mr. Haynes um given your jurisdiction.

[00:19:50]Um article 643 of the Rome Statute says that the trial chamber shall confer with the parties and adopt such procedures as are necessary to facilitate the fair and expeditious emphasized conduct of the case.

[00:20:09]Regulation 54 which deals with status conferences.

[00:20:15]This the first status conference says that the trial chamber may in accordance with the statute and the rules issue any order in the interests of justice for the purposes of the proceedings on interalia the following issues.

[00:20:35]And two of the issues that are um germanine to this point are H the issues that the parties propose to raise during the course of the trial and p the defenses if any to be advanced by the accused.

[00:20:54]Uh, the trial chamber is of the opinion that it would assist the fair and expeditious conduct of this trial, which I referred to in my opening remarks this morning, for the defense to provide a document before the start of trial, which sets out first the matters uh which the prosecution are proposing to lead in evidence with which the defense takes issue. you second uh sets out in general terms the nature of your defense and that means going further than saying these are not crimes against humanity.

[00:21:38]Um Mr. Haynes we do not expect you to provide the complete detail of the defense at that stage.

[00:21:49]The provision of this document does not preclude you from raising further issues at a later stage if those become evident to you in the course of investigations.

[00:22:01]Nor does it encroach upon your right to file a pre-trial brief.

[00:22:08]And we therefore propose to order you to provide this document one month before the start of trial.

[00:22:19]So, is there anything you want to say about that?

[00:22:23]>> No, we'll comply with that, of course.

[00:22:25]>> Thank you very much.

[00:22:27]Um, yes. Uh, and then I think unless there's anything Oh, I'm sorry. Uh, Miss Mercedi, yes. As far as the victims are concerned, um you you may uh file a brief. Um I I I assume it will be before you if you decide to call um any evidence uh as to the views and concerns of the victims.

[00:23:02]Uh yes madame president our position at the moment we are still finalizing our internal uh discussions but our position will be to file the pre-trial brief before the start of the trial.

[00:23:15]um >> as it was in the Abdalaman case. I again if my recollection is is okay this morning I believe the prosecution find one month after the LV filed and then the defense filed in the Abdal Arman case we are of course open at any order of a chamber we will comply no problem at all. Thank you.

[00:23:37]>> That's fine. Um I'm I honestly can't I rather thought that in um the um in the Arament case that the defense filed before they started to call their evidence but I may be wrong.

[00:23:55]I think your honor there was a choice for the opening statements.

[00:24:00]>> Uh if there was a choice of doing the opening statements for the LV as well >> at the start of the trial or once we will request to submit evidence if ever we will request that. I think this was the option. Yeah.

[00:24:16]>> Um >> well I I'll check I'll check that over.

[00:24:19]We're going to have a break before we deliver various oral rulings and we'll check what that was. Thank you very much.

[00:24:25]>> Yeah. Um pre-trial motions.

[00:24:30]Um yes. Uh the officer the prosecutor uh says 30th of October. If start date is the 30th of November.

[00:24:47]um the defense um effectively going back to the um the question on the start date um is a I'm going to come on to that separately I think but a determination of Mr. of the accused uh fitness to stand trial.

[00:25:12]Um >> yeah, I mean do you want about deadline for the filing of of of of motions?

[00:25:22]>> No, we'll comply with whatever order you make in that regard, your honor.

[00:25:26]>> Uh Miss Midi, you're the same. Are you?

[00:25:28]>> Same as well, your honor.

[00:25:29]>> Right. Thank you.

[00:25:32]Um okay. Okay. Well, that brings us on to opening statements which we've more or less had a discussion of it. Um, we'll come back with the hours um at that stage. Um on the question of um victims participation uh yes um I think uh what we'll say there that um the defense invites the deadline um for applications by the victims to participate 30th of September 2026.

[00:26:17]Um, and CLV request until the end of the CI case or at least until the close of the prosecution's evidence. Um, I think we're going to go as we did in in the Al Rakman case, say that it's going to be the end of the prosecution's evidence.

[00:26:34]Um, unless there's any objection to that, Mr. Haynes. Um perhaps a slightly different observation um and and that is going back to the point that's still in the air as it were as to the parameters of the case as a whole. If this case does involve 49 incidents and 73 deceased, then even uh allowing for multiple dependents, one would expect the number of participating victims to be in the low hundreds and not the high thousands.

[00:27:10]And uh Miss Gibson and I have had recent experience of the harm that can be done in admitting uh thousands of victims to participate in proceedings only for them to find out in the reparations phase that none of them fall within the um ambit of the convictions if any. So I I would hope there'd be some careful analysis on the part of those assessing these applications as to whether they fall within the ambit of this indictment as it is currently pleaded because it's doing victims no favors uh to allow thousands and thousands of them to believe that they might receive compensation at the end of the day when that is unlikely even at this stage. The other observation I would make which comes from my experience in the Bember case is that multiple applications throughout the trial process overwhelm the defense because we have to look at them and nobody else does. Um, and we have to review them at a time when we're cross-examining other witnesses or presenting our own case. And so I I I would invite you to consider whether or not that uh given the the the potentially relatively low number of victims who do qualify to participate in this case, whether that shouldn't be done before the trial starts.

[00:28:39]>> All right. Um I Well, Miss Mercedi, yes, first of all, we are and then I think I'll go to the registry.

[00:28:48]>> Uh thank you, U Madame President. Just very briefly, I want you to recall that at the request of a pre-trial chamber, the prosecution indicated that the number of incidents is are only indicative of a victimizations and they are not to be considered an exhaustive list of potential victims. This was confirmed by the docu by the decision confirming the charges and therefore I suspect and these are our assumption at the moment that a high number of victims will manifest themselves for trial and our assessment is done by of course uh having contact with the affected communities and we can already indicate that a number of victims already entering in contact with us to manifest their willingness to participate in this trial.

[00:29:44]Second, your honor, if the prosecution is going to add new incidents, then at that point in time, victims will need time in any case to continue to manifest themselves for trial. So pro the end of a prosecution case seems to us as in previous cases the most reasonable deadline in order to effectively grant the right of victims to participate in this trial. Thank you.

[00:30:14]>> Right. Um does the registry have any observations to make on this?

[00:30:25]>> Mr. Dis we are completely in agreement with this position which is also yours.

[00:30:31]I could also ask Mr. Ambach to give you extra information if you so require.

[00:30:37]>> Mr. Um the only point I would have to add to uh what the legal representative has already submitted which is also part of what we uh submitted in our own uh filing as to the uh scope of the case is that the burden on the defense and the prosecutor in terms of the uh analysis of applications would be minimal if one were to follow the ABC approach that we have proposed to continue from pre-trial into trial whereby by only the unclear forms would come to the analysis of the parties and the final decision by the chamber which as we also submit would be minimized uh the to the later stages of trial which was obviously also a part part motivating our suggestion that one were to continue the possibility of victims to come forward until the end of the evidence hearing. Thank you.

[00:31:36]Um right well we we certainly approve the the the um ABC approach. I mean I think that's now standard through um all all trial chambers. Um so really the the submission of the registry and and um uh the victims represented rather um is it should be the end of trial.

[00:32:00]defense say cut off date and prosecution didn't say anything really I suppose on this um all right it's one of the ones we'll give a a ruling on um when we've dealt with all other matters um uh witness preparation um a lot of this will be dealt with as I say in the conduct of proceedings uh document which we'll issue as soon as um practicable um yes uh the uh uh the um the prosecution uh uh can uh have the same witness preparation protocol um as it had in Abdul Rahman.

[00:32:45]Um there is um and the the adoption of the protocols used uh for preparation, familiaration, familiarization and vulnerability will apply as well.

[00:32:59]However, there's one matter I want to mention because of what happened in the Al Rahman trial.

[00:33:06]Um the uh proceedings were delayed one morning because the uh witness who was due to appear that morning had requested during the 24-hour, if I can put it, quarantine period um before they give evidence to speak to the office of the prosecutor because he had remembered something or wanted to change something And that request um was not transmitted until the morning that the witness was due to testify when he did give new information and as a result there was a delay accordingly.

[00:33:52]Um if that is what a witness requests and it matters not whether it's a defense witness or a prosecution witness or somebody called by the CRV then um notwithstanding the 24-hour quarantine period that request should be immediately transmitted to the uh party calling the witness and unless there is good reason why they should not speak to the witness witness, they should be allowed to speak to the witness uh and obviously make a note and provide it to the nonalling party. Um but I it it was a lengthy delay which was unnecessary um and um in my view need not be repeated.

[00:34:44]Um right. Um unless there's anything else on any of that. Um it's um standard. Um right. The sitting schedule for trial. Now this does bring me on um to um the fitness of the accused. Mr. Haynes. Um as you rightly pointed out and and and you filed um a motion to that effect.

[00:35:12]um the finding of fitness related to the confirmation proceedings and the chamber uh is obliged to make a separate finding on that issue.

[00:35:30]Um and you very sensibly propose um that um the three um gentlemen who examined him um for the purposes of the confirmation proceeding should be reinstructed to re-examine him. And we propose um to uh make that order hopefully either today or tomorrow.

[00:35:59]Um you also uh ask that they be made available for um questioning. Um I think we will I mean the first thing to say it makes sense because uh these uh three experts um examined him uh for the purposes of um the confirmation proceedings. Therefore, they don't have to go back over all the background that was taken on the last um occasion as regards having them um uh brought for uh any questioning by um the parties. I I I rather think we'll wait and see what the reports say before we make such a decision.

[00:36:49]>> I agree, your honor.

[00:36:50]>> Thank you very much. Um, in that case, as I say, we'll um I I only hope that they can um carry out the assessment with um some speed. Um so therefore um at the moment it's a bit difficult to set a schedule for trial until we've had a a an upto-date report. But it it seems to be that um because of his age and and um uh uh potentially um medical problems um there there will have to be a day off and I see the suggestion is that it's in the middle of the week. Um but as I say I'm reluctant um at this stage without further reports and without an assessment made by the experts of of of to to set a schedule. So I propose to adjourn that until um we find out what the situation is unless anybody thinks differently.

[00:37:58]No I'm taking silence ascent.

[00:38:03]Um uh the uh representatives of the victims finally um uh uh uh want a secure and private remote. Um I think you have to take that but with the registry. I mean if that if they can arrange that that's fine by the trial chamber.

[00:38:23]It's not really a matter for us. Um and um the final matter was the suggestion by the prosecution of an alternate judge. Um I don't think um that really is necessary.

[00:38:38]Um all right. Uh are there any other matters? We're going to adjourn and and I suppose we could we could try and do it before just to go through the rulings we're going to make. Um just give me a moment.

[00:39:42]Um, I'm reminded, Mr. Nich, I should have asked you, have you got anything to say about the experts um, examining him?

[00:39:51]>> Uh, well, you've made your decision. So, um, no.

[00:39:56]And, uh, we would have, but, you've made your decision. Um >> it didn't occur to me that that that you were going to object but um >> we had some things it no we we we accept that. Um >> the one point I would make uh very briefly is we would hope that your honors would instruct the experts. Um we would not agree with um the defense's proposed letter of instruction.

[00:40:24]>> In its entirety I thought about that.

[00:40:25]some of the >> points we feel we we would >> yes >> take issue with but uh so we think your honor your honor should do the instruction according to the test from Struggar and Hudzitch and Bagbo um and so appreciate the trying to save time and be helpful but we would not agree with this letter going as is.

[00:40:46]>> That's right. Uh all right and and in fact um quite rightly of course people are going to be concerned with the registry. Is there anything you want to say on that, Mr. Dubis?

[00:40:59]>> Mr. Dubis.

[00:41:02]>> No, I believe that to find experts that are immediately available and who know the interested party, I think that this is the best solution.

[00:41:12]And today, I do not believe that they will deviate very much from the previous recommendations. Well, yes, we'll have to see what what they say um rather than anticipating it. Okay. Um yes, Mr. Haynes. All right. So, you they don't the prosecution doesn't much like your letter, so I think we will the chambers will write. Uh >> we were only trying to be helpful.

[00:41:40]>> Thank you. Um all right. Yes. I'm sorry.

[00:41:43]I forgot about that. Uh uh all right. Uh what we're going to do is um adjourn until 2:00 um just so that we can take time to consider um the various matters being raised. Before I do that, however, can I just say one last thing?

[00:42:02]um which really has no bearing or impact on the case or how it will be conducted.

[00:42:09]But for the purposes of transparency, knowing that there is public interest um in in this case um I should say and this is uh myself um speaking rather than on behalf of my fellow judges.

[00:42:26]Um uh the I it's probably well known that the uh the world and the pool of uh international criminal lawyers and judges is a limited one.

[00:42:49]Um and it is therefore probable that judges and council will have met um before um the this case or during other cases or possibly at conferences or even social events.

[00:43:12]In this case, as it so happens, I know council on both sides.

[00:43:19]Um, as far as Mr. Nicholls is concerned, apart from the fact that both he and Mr. Jeremy appeared as prosecution council in uh, the case of Al Rahman.

[00:43:34]Uh, Mr. Nicholls and I worked together now over 20 years ago.

[00:43:41]um as council at uh ICTY.

[00:43:48]Um Mr. Haynes and Miss Gibson I have Mr. Haynes I've known though not in a professional uh way in the same way as Mr. Nichols for almost as long and Miss Gibson for less time.

[00:44:04]Um we have um uh met and as I say are likely almost certainly to meet again at um seminars and social functions.

[00:44:19]Although it's not possible to predict that with any certainty. The one thing it is possible to say with certainty um there will be no discussion whatsoever um of this case uh between parties and the judges at any such functions.

[00:44:42]Um and as I said already, it has no impact on the way that this case will be conducted or any rulings um that may be made by this chamber in respect of submissions made by all sides.

[00:45:00]So thank you very much and we'll adjourn until uh 2:00.

[00:45:06]All right.