Kaufman reveals plans for Duterte’s release from ICC custody

The application for the temporary release of former President Rodrigo Duterte from the International Criminal Court's custody pending his trial scheduled for September is already in the works, his chief legal counsel confirmed.

Speaking to reporters in The Hague, Netherlands, lawyer Nicholas Kaufman disclosed that the pleading for Duterte’s interim release is underway, but he did not provide specifics on when they will submit the application at the ICC.

Citing three factors that could impede Duterte’s release — the risk of flight, the risk of interference with witnesses, and the risk of continued crimes — the British-Israeli lawyer expressed confidence that the international tribunal could grant him liberty, as these risks are non-existent in his case.

“None of those factors exist in the present situation. So there is a right for Mr. Duterte to be released,” he told reporters following his visit to Duterte at Scheveningen Prison. “We are working on that, but the timing of when we intend to introduce such an application is yet to be decided.”

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 international tribunal.

These conditions include assurance of the person’s appearance at trial, refraining from obstructing or endangering the investigation or the court proceedings, and not committing the alleged crime or offenses he is facing before the ICC.

However, if the court finds that these conditions are not met, it shall release the person, with or without conditions.

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

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

He explained that those involuntarily brought against their will to the ICC were never given interim relief or allowed to post bail.

“So, I think that will apply to former President Duterte,” Carpio said in an interview last week.

In January 2021, the late Kenyan lawyer Paul Gicheru, who was also charged before the ICC, was granted temporary release. The prosecution did not oppose his application, although the court set conditions restricting his liberty.

In approving his pleading, the ICC took into consideration Gicheru's voluntary surrender, demonstrating his concrete willingness to subject himself to the jurisdiction of the international tribunal in relation to the allegations against him.

The Kenyan lawyer was accused of tampering with witnesses in favor of President William Ruto over post-election violence in Kenya in 2007 and 2008. On 14 October 2022, the ICC terminated the case against him following his death two weeks earlier.

The lawyers of the drug war victims previously warned that they would block any attempt by Duterte’s camp to release him from detention. They asserted that keeping Duterte in ICC custody is necessary to ensure he will not pose a danger or threat to the victims and witnesses of his bloody war on drugs.

The 80-year-old Duterte is currently in ICC custody following his arrest on 11 March in Manila upon his return from Hong Kong. He is facing charges of crimes against humanity for 43 extrajudicial killings under his drug war, including those executed by the Davao Death Squad during his tenure as Davao City mayor.

The government logged more than 6,000 deaths related to the notorious anti-narcotics campaign.

Human rights organizations, however, estimated that the actual death toll may have exceeded 30,000, affecting predominantly low-income families and communities.

The prosecution has already furnished the ICC and Duterte’s camp with the evidence to be used during the trial, although they still have until 4 April to submit additional pieces of evidence.

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

The former president made his first appearance before the ICC judges on 14 March, just three days after being arrested. He is set to face the ICC judges again on 23 September for the confirmation of the charges against him.