Former President Rodrigo Duterte’s legal team is working on the application for his temporary release from International Criminal Court (ICC) custody, ahead of his trial scheduled in September, his chief legal counsel confirmed.

Speaking to reporters in The Hague, Netherlands, British-Israeli lawyer Nicholas Kaufman said the request is underway though he could not say when it would be submitted to the ICC.

“We are working on that, but the timing of when we intend to introduce an application is yet to be decided,” he said.

Kaufman cited three factors that could hinder Duterte’s release — the risk of flight, the potential for witness tampering, and the risk of continued crimes — asserting that these are not present in his case, thus there is a chance the court would grant his temporary liberty.

“None of those factors exist in the present situation. So there is a right for Mr. Duterte to be released,” Kaufman told reporters following a visit to Duterte at Scheveningen Prison.

Under Article 60 of the Rome Statute, the treaty that established the ICC, a person subject to an arrest warrant may apply for interim release pending trial subject to the conditions set forth by the tribunal.

These include ensuring his appearance at trial, not obstructing or endangering the investigation or court proceedings, and refraining from committing the alleged crimes or offenses he faces before the ICC.

If the court finds that these conditions are met, it shall release the person, with or without conditions.

Doubts about release

ICC-accredited lawyer Joel Butuyan had expressed doubt the ICC would grant Duterte an interim release, taking into account that he is a “flight risk.”

‘None of those factors exist in the present situation. So there is a right for Mr. Duterte to be released.’

To former Supreme Court Associate Justice Antonio Carpio, Duterte’s provisional release is unlikely as he did not voluntarily surrender to the court.

Carpio noted that individuals brought to the ICC against their will had never been granted interim relief or were allowed to post bail.

The lawyers of the drug war victims had said they would block any attempt by Duterte’s camp to have him released from detention. They asserted that keeping Duterte under ICC detention was necessary to ensure that he would not pose a danger or threat to the victims and witnesses to his bloody war on drugs.

The 80-year-old Duterte is being held in the ICC prison following his arrest on 11 March in Manila.

He faces charges of crimes against humanity for 43 extrajudicial killings during the war on drugs, including those executed by the Davao Death Squad during his tenure as Davao City mayor.

Meanwhile, Duterte’s defense team has until 11 April to submit its counter-evidence.

The former president appeared before the ICC judges for the first time on 14 March, just three days after his arrest. He is scheduled to return on 23 September for the confirmation of the charges against him.

Victims’ lawyer: ICC has jurisdiction

Meanwhile, lawyer Gilbert Andres, executive director of the Center for International Law and legal counsel of the families of the victims, is confident the ICC has jurisdiction over Duterte.

On Sunday, Kaufman, Duterte’s lead lawyer, said there was a “compelling” case for dismissing the ICC charges before they even go to trial.

Kaufman, in an interview with Agence France-Presse, said he hoped to stop the case before the ICC confirms the charges, asserting that the court lacked jurisdiction. He also pointed out that the Philippines’ withdrawal from the court had taken effect before an investigation was authorized.

However, Andres countered Kaufman, emphasizing that all four requirements to pursue the case are present in Duterte’s situation. He stressed the ICC does have subject-matter jurisdiction, as Duterte is charged with crimes against humanity, which falls within the court’s jurisdiction.

“We are confident there is jurisdiction because the ICC will only look at four factors — first, does it have subject-matter jurisdiction? Yes, because the charge against Mr. Duterte is for crimes against humanity. Second, are the charges within the time jurisdiction of the ICC? Yes, it covers the period from 1 November 2011 to 16 March 2019. Third, did the charges against Duterte occur within the Philippines while it was still a state party to the Rome Statute? Yes, they did. And fourth, is Rodrigo Duterte under the custody of the ICC? Yes, he is,” Andres said in Filipino in a radio interview.