When Institutions Need a Victory: The ICC, Duterte, and the Economics of Relevance
When Institutions Need a Victory: The ICC, Duterte, and the Economics of Relevance
Amiel Gerald A. Roldan™
February 28, 2026
Premise and Method
This essay treats the International Criminal Court’s engagement with Rodrigo Duterte as a case study in institutional self‑preservation, and it explores three human factors—pride, the sunk‑cost phenomenon, and the desperation to remain relevant—that, together with ancillary values, can shape prosecutorial and judicial outcomes. The tone is at once academic and anecdotal, humane and ironic: an attempt to read legal procedure as theatre, bureaucratic psychology, and moral performance. The analysis draws on public records of the ICC’s docket and contemporary commentary to situate psychological dynamics within institutional practice.
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A Short Narrative Overture
Imagine a courtroom that is also a greenhouse: fragile seedlings of precedent are watered by press releases, warmed by donor attention, and shaded by diplomatic gusts. Into this greenhouse walks a defendant whose name has become shorthand for a policy era—its violence, its theatricality, its populist bravado. The Office of the Prosecutor (OTP) has spent years cultivating a case; the Pre‑Trial Chamber has already tended the soil. The question is not merely legal sufficiency but institutional survival: will the court prune the plant now, or let it grow to full bloom before the world judges its fruit?
This vignette is intentionally theatrical because institutions are theatrical: they perform legitimacy for audiences that include states, NGOs, donors, and publics. The performance is sustained by human motives—some noble, some petty—that are rarely acknowledged in legal reasoning but are decisive in practice.
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Pride as Institutional Motor
Pride is not merely an individual vice; it is an organizational thermostat. Courts, like corporations and universities, develop reputational capital that must be defended. The ICC’s engagement with the Philippines began as a formal legal inquiry but accrued symbolic weight: it signaled the Court’s willingness to address alleged mass violence beyond Africa and to test its reach against a former head of state. To abandon a high‑profile inquiry after years of investigation would read as institutional humiliation—an admission that the preliminary examination was overambitious or politically miscalibrated.
Judges and prosecutors are not immune to reputational incentives. A Pre‑Trial Chamber that declines confirmation risks being read as risk‑averse or politically compromised; the OTP that withdraws would be accused of misjudgment. Thus pride operates as a conservative force that biases institutions toward continuation rather than cessation. The legal standard for confirmation—often described as a low threshold of “sufficient evidence to establish substantial grounds to believe”—interacts with pride to produce a procedural momentum: it is easier to send a case forward than to stop it.
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The Sunk‑Cost Phenomenon in Legal Practice
The sunk‑cost phenomenon is a cognitive bias familiar to economists and gamblers: past investments—time, money, political capital—distort present decisions. In the context of international prosecutions, sunk costs are not merely fiscal; they are reputational, relational, and moral. The OTP has invested investigative teams, forensic work, witness protection planning, and diplomatic energy into the Philippines situation. NGOs and victim groups have invested hope and advocacy. To halt the process now would be to admit that those investments yielded insufficient returns.
This dynamic creates a perverse incentive structure. Rather than recalibrate strategy in light of evidentiary fragility, institutions may escalate commitment: broaden charges, seek more dramatic evidence, or push for trial to avoid the psychological sting of conceding error. The result is a procedural ratchet: once resources are committed, the path forward becomes self‑justifying. The sunk‑cost effect thus helps explain why institutions sometimes pursue cases that, in a purely evidentiary calculus, might be deferred or narrowed.
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Relevance as Existential Pressure
Institutions crave relevance. The ICC has faced political headwinds—sanctions, criticism of selectivity, and diplomatic pushback—that have eroded its aura of inevitability. In such a climate, a high‑visibility prosecution offers a narrative of efficacy. The arrest and transfer of a former head of state to The Hague is not merely a legal milestone; it is a public relations triumph that signals the Court’s continued utility.
This is not to deny the moral stakes of accountability; rather, it is to note that institutional survival can shape prosecutorial priorities. When an institution’s legitimacy is contested, the calculus of case selection and persistence is partly political: which matters will best shore up the institution’s claim to be indispensable? A case that is prosecutable, visible, and narratively resonant becomes disproportionately attractive. The danger is that the pursuit of relevance can eclipse the narrower demands of evidentiary prudence and procedural fairness.
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Anecdotes That Illuminate
A prosecutor once told a colleague, over coffee and a stack of redacted witness statements, that “we are not in the business of closing files; we are in the business of making history.” The remark was half‑joke, half‑doctrine. It captures the ambivalence of legal actors who oscillate between craft and crusade. Another anecdote: a veteran judge, upon receiving a voluminous pre‑trial brief, sighed and said, “We will send it on; let the trial judges carry the burden.” The sigh was not laziness but a bureaucratic calculus: confirmation shifts the political and evidentiary risk downstream.
These small stories matter because they reveal how human gestures—sighs, jokes, private wagers—aggregate into institutional outcomes. They also remind us that legal processes are social processes, animated by personalities, alliances, and the occasional petty vanity. Anecdote, in this sense, is not mere ornament; it is data.
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Values at Stake Beyond the Three Factors
If pride, sunk costs, and relevance are the three human engines propelling a prosecutorial trajectory, other values complicate the picture and sometimes counterbalance institutional momentum.
- Fairness and Due Process. The integrity of a trial depends on procedural safeguards: disclosure, witness protection, and impartial adjudication. These values can constrain institutional overreach if judges insist on rigorous standards at confirmation and trial.
- Victim‑Centered Justice. For many advocates, the ICC’s involvement is less about institutional prestige and more about recognition and redress for victims. This moral claim exerts pressure in the opposite direction: to pursue accountability even when political costs are high.
- Subsidiarity and Complementarity. The ICC’s mandate is complementary to national systems. If domestic institutions can genuinely investigate and prosecute, the ICC should defer. The interplay between international and domestic capacities complicates the simple narrative of institutional self‑preservation.
- Transparency and Professionalism. Transparent decision‑making and clear evidentiary reasoning can mitigate the corrosive effects of pride and sunk costs by subjecting choices to public scrutiny.
These values are not merely abstract; they are levers that can be deployed to check or justify institutional momentum. Their presence in public discourse matters because they shape the normative frame within which judges and prosecutors operate.
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Ironies and Critical Observations
There is an irony in the spectacle of international justice: institutions designed to transcend politics are themselves political actors. The ICC’s quest for relevance can lead it to pursue cases that shore up its image while leaving structural inequalities of power untouched. Another irony is that the very act of seeking global accountability can be domesticated by local politics: domestic actors may use international mechanisms to settle political scores, and international actors may use local cases to signal global resolve.
A further irony is epistemic: the Court is moved by narratives of horror—compelling, human stories that mobilize moral outrage—yet legal proof demands dispassionate corroboration. The tension between narrative force and evidentiary rigor is not merely methodological; it is existential for institutions that must be both moral and legal authorities.
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A Modest Prognosis and Normative Coda
This essay does not predict verdicts; it offers a diagnostic: institutional psychology matters. Pride, sunk costs, and the hunger for relevance create a structural bias toward continuation. That bias can be checked by robust judicial scrutiny, transparent reasoning, and a recommitment to values that prioritize fairness and subsidiarity over spectacle.
If the ICC is to avoid becoming a greenhouse of performative justice, it must cultivate practices that make stopping as honorable as continuing. That requires institutional humility: the willingness to say, in public and with evidence, that a case is not ripe; the courage to return resources to victims in other forms; and the discipline to let domestic systems lead when they can. These are not easy prescriptions; they demand a culture that prizes epistemic modesty over reputational triumph.
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Final Anecdote and Reflection
A curator once told me that the best exhibitions are those that leave space for the viewer to finish the story. Institutions, too, might learn from that curatorial modesty. The ICC’s work will be judged not only by convictions but by the integrity of its choices. Pride, sunk costs, and relevance will continue to tug at its sleeves; the question is whether the Court will answer with the measured voice of law or the louder voice of survival. Future scholars will read the docket not only for legal doctrine but for the human traces that shaped it: the jokes in the margins, the weary sighs, the private wagers. Those traces are the saving grace of any institutional account—humane, fallible, and, if we are lucky, self‑correcting.
The Burden Must Not Be Transferred to the Defense
There is a small, stubborn moral grammar that undergirds criminal procedure: the State accuses, the State proves, the accused answers. This grammar is not merely a technicality; it is a civic ritual that protects the fragile dignity of persons against the appetites of power. When Lead Defense Counsel Nicholas Kaufman insists that “the burden must not be transferred to the defense,” he is not uttering a rhetorical flourish but invoking a principle that is both juridical and human. The insistence that the prosecution must prove the falsification of police records—rather than forcing the defense to disprove it—is a demand for epistemic humility, procedural fairness, and a recognition of the asymmetries that define modern criminal adjudication. This essay takes that demand as its premise and explores, with a mixture of academic rigor, humane curiosity, ironic distance, and anecdotal tenderness, why the allocation of burden matters, how cognitive and institutional forces distort it, and what values might rescue a trial from becoming a theatre of presumptions.
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Burden, Proof, and the Ethics of Doubt
At the heart of criminal justice lies a paradox: the system must be decisive enough to punish wrongdoing and cautious enough to avoid punishing the innocent. The allocation of burden—who must prove what, and to what degree—resolves this paradox in favor of caution. The presumption of innocence is not a sentimental relic; it is a procedural mechanism that forces the State to marshal evidence, to translate suspicion into proof. When the prosecution alleges that official documents have been falsified, the accusation carries a particular gravity: it is an attack on the institutional memory of the state, on the documentary scaffolding that supports police narratives and prosecutorial claims. To shift the burden of rebuttal onto the defense is to invert the presumption of innocence and to weaponize evidentiary asymmetry.
This is not merely legal formalism. Documents—police reports, forensic logs, custody records—are the bones of many prosecutions. They are also, in practice, produced by institutions with incentives, habits, and blind spots. The State’s duty to prove authenticity is therefore a duty to interrogate its own records, to subject its bureaucratic artifacts to the same skepticism it would apply to a stranger’s testimony. To demand that the defense disprove authenticity is to ask the accused to disprove the State’s own story—a task often impossible without access to the very institutional resources that produced the documents.
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Anecdote and the Human Scale
I remember a small courtroom in which a retired schoolteacher, accused of a petty theft, watched the prosecutor slide a photocopied ledger across the table as if it were a talisman. The ledger bore neat columns and a signature; the prosecutor’s voice assumed the ledger’s infallibility. The defense lawyer, a woman with a habit of knitting metaphors into cross‑examination, asked a simple question: “Who kept this ledger?” The prosecutor shrugged; the clerk had died, the original was lost, the photocopy was all that remained. The judge, a man who liked to think of himself as a guardian of process, accepted the ledger’s authority. The defendant was convicted. Years later, the defense lawyer found the original ledger in a municipal storeroom, its pages water‑stained and annotated in a different hand. The conviction was overturned. The moral of the story is not merely that evidence can be fallible; it is that institutional convenience often masquerades as evidentiary certainty.
This anecdote is not an argument by analogy; it is a cautionary parable. When official records are treated as self‑authenticating, the trial becomes a ritual of confirmation rather than a search for truth. Kaufman’s insistence is thus a plea for procedural curiosity: require the State to show its work, to produce chain of custody, to explain anomalies, to let the defense test the document’s provenance without being forced into the impossible posture of proving a negative.
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Cognitive Biases and the Temptation to Transfer Burden
Human cognition is a treacherous ally in the courtroom. Confirmation bias, the tendency to favor information that confirms preexisting beliefs, inclines investigators and prosecutors to treat documents that fit a narrative as inherently reliable. The sunk‑cost fallacy—having invested time and resources in a line of inquiry—makes institutions reluctant to abandon a theory even when the evidentiary ground shifts. And the authority heuristic—our tendency to accept claims made by perceived experts or institutions—gives official records an aura of truth that is hard to dislodge.
These biases conspire to create a procedural shortcut: instead of the prosecution proving authenticity, the court treats the document as presumptively genuine and expects the defense to explain discrepancies. The result is a reversal of the burden of proof in practice if not in law. The defense, often resource‑constrained and operating under the stigma of suspicion, is asked to produce alternative narratives, to find missing custodians, to reconstruct chains of custody that the State never bothered to document. This is not merely unfair; it is epistemically perverse.
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Institutional Pressures and the Performance of Proof
Courts do not operate in a vacuum. They are embedded in political climates, media cycles, and institutional incentives. Prosecutors are rewarded for convictions; institutions are rewarded for appearing decisive. In high‑profile cases, the pressure to produce a coherent narrative can lead to evidentiary compression: complex uncertainties are smoothed into tidy documents and definitive statements. The defense, meanwhile, is often cast as the spoiler of narrative coherence, obliged to puncture the story the State has spent months or years assembling.
Kaufman’s plea thus also addresses institutional theater. He asks the court to resist the seduction of narrative completeness and to insist on the labor of proof. The prosecution’s duty to authenticate is not merely a technical requirement; it is a guardrail against the spectacle of justice, ensuring that the drama of accusation does not eclipse the discipline of proof.
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Humor, Irony, and the Human Cost
There is a dark humor in the idea that a photocopy can carry the weight of a life. It is almost Kafkaesque: a bureaucratic artifact, reproduced in a thousand offices, becomes the instrument of fate. The irony is that the very documents meant to render the world legible—logs, reports, signatures—are often the most opaque. They are written in shorthand, in institutional idioms, in the hurried hand of overworked clerks. To treat them as infallible is to mistake the map for the territory.
Yet humor here is not frivolity; it is a coping mechanism. The courtroom is a place where human dignity is at stake, and humor can be a way to name absurdity without surrendering to despair. Kaufman’s insistence, when read with a wry smile, is also a moral joke: “Prove it,” he says, as if the prosecution’s documents were not already dressed in the robes of authority. The joke lands because it exposes a truth: authority is not the same as evidence.
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Values That Should Guide the Court
If the burden must not be transferred to the defense, what values should guide judges and prosecutors in adjudicating authenticity claims? Several come to mind:
- Transparency. The prosecution should disclose the provenance of documents, the methods used to obtain them, and any gaps in the chain of custody. Transparency is not merely a procedural nicety; it is a corrective to institutional opacity.
- Proportionality. The court should calibrate evidentiary expectations to the stakes of the case. When liberty is at risk, the demand for rigorous authentication must be correspondingly high.
- Access. The defense must have meaningful access to the sources and custodians of documents. Without access, the defense’s ability to test authenticity is illusory.
- Skeptical Curiosity. Judges should cultivate a posture of skeptical curiosity toward official records, asking not only whether a document exists but how it came to be and what institutional practices shaped its form.
- Humane Imagination. Finally, the court should remember that behind every document is a human life. The procedural insistence that the State prove its case is, at bottom, an insistence on human dignity.
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Anecdotal Coda and the Ethics of Proof
A young paralegal once told me that the most important skill she learned in criminal defense was patience: the patience to read a file slowly, to notice the marginalia, to follow a stray initial to a clerk who remembered a different version of events. She described a case in which a single, overlooked stamp—an administrative mark—revealed that a police report had been backdated. The discovery did not exonerate the accused automatically, but it changed the texture of the prosecution’s narrative. The paralegal’s patience was a form of moral labor: a refusal to let institutional convenience stand in for evidentiary rigor.
Kaufman’s demand is a call for that patience at the institutional level. It asks judges to require the prosecution to do the work of proof, to resist the temptation to accept official documents as self‑authenticating, and to protect the defense from the impossible burden of disproving what the State has not proven. This is not merely a tactical plea; it is a plea for a justice that is slow enough to be careful and humble enough to admit uncertainty.
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Conclusion
“The burden must not be transferred to the defense” is a sentence that carries within it a constellation of values: procedural fairness, epistemic humility, institutional skepticism, and humane respect for persons. It is a reminder that justice is not merely the outcome of a contest but the integrity of the contest itself. When the State alleges falsification of police records, it must bring forward credible, objective evidence; it must show its work; it must allow the defense to test, to probe, to challenge. Anything less is to convert the courtroom into a theater where documents play the role of gods and human beings are left to plead with shadows.
There is an irony in the legal world’s reverence for documents: we trust paper to tell the truth about flesh. But paper is made by hands, and hands err. The law’s genius is its insistence that institutions be held to the same standards of proof they demand of individuals. Kaufman’s insistence is thus not merely a tactical gambit; it is a defense of a civic grammar that protects us all. If the court honors that grammar, it will have done more than adjudicate a dispute; it will have affirmed a principle that keeps power honest: the burden of proof belongs to the accuser, and the dignity of the accused must not be the price of institutional convenience.
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A multidisciplinary Filipino artist, poet, researcher, and cultural worker whose practice spans painting, printmaking, photography, installation, and writing. He is deeply rooted in cultural memory, postcolonial critique, and in bridging creative practice with scholarly infrastructure—building counter-archives, annotating speculative poetry like Southeast Asian manuscripts, and fostering regional solidarity through ethical art collaboration.
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