International Criminal Court (ICC) prosecutor Julian Nicholls and lead defense counsel Peter Haynes during the fourth status conference on the case of former president Rodrigo Duterte before Trial Chamber III at The Hague, Netherlands on October 13, 2026. (Courtesy: ICC-CPI)
The counsel of former President Rodrigo Duterte and the prosecution team at the International Criminal Court (ICC) clashed over a dataset on the past administration’s drug war fatalities.
During the fourth status conference, Presiding Judge Joanna Korner asked the prosecution whether it had reviewed each document’s relevance to Duterte’s case.
“Now the first thing I need to know, Mr. (ICC Senior Trial Lawyer Julian) Nicholls, from you, because it’s not clear from what you say, has the prosecution actually reviewed the database for the relevance of each individual item?” Korner said.
The prosecution lawyer said their team’s analysts reviewed the documents and divided what they used in the trial brief based on the October 9 decision by the ICC Trial Chamber III.
“The documents that support our 57, now 56 charged incidents, the ones related to our witnesses who we’re calling, as well as ones that we considered relevant, probative, and important to send out to the experts who they have relied on in their reports,” Nicholls said.
According to Philippine National Police (PNP) records, it identified 3,400 drug war deaths, which occurred from July 2, 2016 to Nov. 27, 2017.
“The analytical memo which we have disclosed… they have counted this. These are official PNP documents turned over. Official PNP documents, I’ll leave it at that. And they have counted that up to 3,422 deaths. Our proposed agreed facts are that that number is 3,400 deaths,” Nicholls said.
“Our proposed agreed facts are 3,400 deaths, and the President’s administration, for the same time period, says 3,697 deaths,” he added.
The prosecutor added that the findings they obtained were based on a 2017 accomplishment report from the Presidential Communications Operations Office, now called the Presidential Communications Office.
However, he also said that the prosecution has yet to come to an agreement with the defense, pointing out that they do not agree to a joint expert to go through with the dataset and count them.
“They would not agree, besides multiple offers, to come to our office, and we said, we can count through this with you, we can show you exactly how we get to the number through these documents in our office, we can do it over a few hours if you want to go more in depth, we can do it over a whole weekend. They wouldn’t do that,” Nicholls said.
Defense says otherwise
Meanwhile, defense counsel Peter Haynes argued that 44,000 documents need to be on the list of evidence to prove the agreed facts.
“In order to prove those agreed facts, all 44,000 documents should be on the list of evidence, so what they are, in fact, inviting me to do is agree things they cannot properly or possibly prove by reference to their list of evidence,” Haynes said.
He clarified that 35,000 of the documents were in the Rule 77 material, stressing the prosecution’s role to reduce the case file and invite him to agree to things they cannot “prove by reference to the documents on the defense’s list.”
The defense lawyer also argued that the prosecution should refile the documents, following his concerns about the alleged use of artificial intelligence (AI) in the dataset or the spreadsheet they reviewed.
“The prosecution haven’t done it humanly. They’ve effectively passed it through an AI machine,” Haynes said.
However, Nicholls disputed the allegation and maintained that the analysts had reviewed the data.
“That is completely untrue. He keeps saying that. We have gone through this data set by analysts who’ve gone through all of it, lawyers some of it, page by page, human, manual, 100 percent,” Nicholls said.
Haynes also said some incidents were irrelevant to the war on drugs, which included murders between jealous lovers, landlords and tenants, and disgruntled employees.
Korner said the judges had reviewed the summaries of the prosecution but noted that their submissions do not identify a form of “exculpatory evidence” that could provide clarity on the charges against Duterte.
“It seems to us in this stage, there is not a great deal that we can do about this unless the two sides get together and reach some agreement,” Korner said.
“We take the view that the prosecution should review the database and any other documentation that it’s proposing, which it’s in its possession to indicate clearly to the defense what documents or materials could be considered exculpatory. I think that is the main and overarching task that the prosecution must carry out,” she added.
The Presiding Judge recommended that the defense must take the offer of the prosecution to assist in the examination of the said database.
“I want to make quite clear that your motion that the evidence should be re-filed in JWP (Judicial Workflow Platform), and the prosecution limit it to 10,000 documents is, at the moment, refused,” Korner said.
However, she said the court could not yet impose its arbitrary limit on the number of evidential items that the prosecution could disclose, as it could cause them to violate their disclosure obligations.
Haynes clarified that both the prosecution and the defense had been cooperating with their duties.
“I wouldn’t want you to get the impression that we are miles apart. We are quite collegiate in many ways,” Haynes said.
Nicholls has since said the prosecution has requested the defense to reach an agreement with them, specifically on the number of deaths in police operations during a specific period to expedite the proceedings: “We did talk during the break. We haven’t agreed. But one offer again is to have an independent expert to take a look, that we agree on.”