Duterte asks ICC for temporary freedom while case is pending

Aside from humanitarian grounds, the Duterte camp also argues that he is not a flight risk, will not continue committing the alleged crimes, and will not obstruct the trial

MANILA, Philippines – Former president Rodrigo Duterte is seeking temporary release while his crimes against humanity case is pending with the International Criminal Court (ICC).

“As such, the defence will respectfully request that the Pre-Trial Chamber order Mr. Duterte’s immediate release into [REDACTED] under any conditions as deemed appropriate,” said the June 12 request of Duterte’s lawyer, Nicholas Kaufman, before the all-women ICC Pre-trial Chamber I.

Duterte’s Request to ICC for Interim Release by Rappler on Scribd

An accused may file for an interim release with the ICC chambers, based on the Rome Statute as part of the due process afforded to people facing cases before the international court. If the ICC judges determine that an accused has the following risks, they will not approve the request for temporary liberty:

• risk of an escape
• risk of obstructing or endangering the investigation
• risk of him recommitting the crimes he is accused of

So far, the international court has only granted interim release to suspects facing obstruction of justice — it has yet to grant temporary liberty to suspects of crimes against humanity.

In their request, Duterte’s lawyer said that a country has agreed to accept Duterte should his request for temporary release be granted. The name of the state was among the redacted information in the publicized request.

This may not be the Philippines because Kaufman argued that Duterte will not continue the alleged crimes because “he will be residing well outside the geographic scope of the alleged crimes, the likelihood of Mr. Duterte posing a risk under Article 58(1)(b)(iii) is non-existent.”

ICC assistant to counsel Kristina Conti said the receiving state is important because the state will guarantee that Duterte will appear before the curt should he be allowed interim release, and that the receiving state will ensure that all conditions are met.

The Duterte camp also claimed in their request that there have been discussions about the interim release between the prosecution and the defense. Kaufman claimed “the prosecution has confirmed its non-opposition to interim release.”

This was not unusual, but concerning, according to Conti.

“It’s quite concerning that the defence says that they have been in talks on this issue with Chief Prosecutor Khan since after Duterte’s arrest,” Conti said. “We cannot confirm if prosecutor agreed with defence. This kind of self-supporting claims are usually not put on paper. The Prosecutor should be allowed to give observations soonest, as well as victims and the alleged receiving state.”

Arguments for release

Kaufman said the possibility that his client will continue the alleged crimes “is highly abstract” because, he said, it’s more than six years since the alleged crimes happened. The ICC case covers Duterte’s drug war that killed nearly 30,000 people, according to human rights groups’ tallies — and the deaths under Duterte’s alleged Davao Death Squad — from November 1, 2011 to March 16, 2019.

“Mr. Duterte is no longer the President of the Philippines, and does not command the same influence or power he is said to have abused during the period of the alleged crimes. He no longer holds the type of office that the prosecution argues allowed him to order and to implement the policies that form the basis for the ICC arrest warrant,” the request read.

Kaufman also argued that Duterte must be released on the grounds that he is not a flight risk and his release will not obstruct the trial. They also cited humanitarian considerations. These arguments were based on the grounds for interim release usually cited before the court.

“In light of [REDACTED]’s support for Mr. Duterte’s application for interim release, as well as its indicated willingness to implement such conditions as may be imposed by the Pre-Trial Chamber that are in accordance with its domestic laws, there can be no objective, concrete finding of flight risk,” Kaufman said.

Kaufman admitted in their request that the Rome Statute does not explicitly include humanitarian considerations in the requirements for interim release but, he said, “the ICC has, in practice, granted provisional release for humanitarian reasons.”

Most of the grounds cited by the Duterte camp were redacted, aside from the arguments that the former president is already 80 years old, and that the supposed host country for Duterte “represents a stable and suitable environment in keeping” the ICC suspect.

“One important consideration that we are at a loss as to how we should appreciate is what other grounds exist. Aside from advanced age, it appears he has enumerated other factors to support his urgent humanitarian release,” Conti told Rappler.

Another ICC-accredited counsel, Joel Butuyan, previously said that age was never a factor in ICC cases because most of the ICC suspects are of the same age as Duterte. He also said Duterte cannot bring up health reasons because the medical facilities in The Hague, Netherlands are equipped to treat him and return him to the detention facility.

“I don’t think that the usual Philippine practice of sending VIP patients to a hospital will fit the situation at The Hague because the jails there have excellent facilities, and I think any needs of the patient short of any grave medical emergencies, can be addressed by existing facilities,” Raul Pangalangan, a retired Filipino ICC judge, said during a University of the Philippines College of Law forum back in March.

Duterte has been in detention in the Netherlands since his arrest in March. While detained, he won his election as mayor of his hometown and bailiwick Davao City. The former Philippine president is set to face the court for his confirmation of charges hearing scheduled on September 23. – Rappler.com