Duterte camp renews appeal for temporary release before pre-trial

The camp of former president Rodrigo Duterte has renewed its appeal for his temporary release from the custody of the International Criminal Court (ICC) as the pre-trial hearing for his crimes against humanity case draws near.

The filing of the petition came just a little over a month before Duterte faces the ICC judges anew for the confirmation of the charges scheduled for 23 to 26 September.

The erstwhile leader has been detained at Scheveningen Prison in The Hague, Netherlands, since his arrest on 11 March in Manila on an ICC warrant.

His lawyer, Nicholas Kaufman, assured the ICC that they are willing to comply with “any conditions deemed appropriate” by the tribunal to allow Duterte’s “immediate release” to an unnamed country.

“Mr. Duterte’s presence at confirmation proceedings may be waived but, if necessary, may equally be ensured by way of videoconferencing,” the heavily redacted petition dated 19 August read. “Monitoring conditions of release and contact restrictions may be ensured through [REDACTED].”

Only two state parties, namely Argentina and Belgium, have signed cooperation agreements on interim release with the ICC.

But the defense told the tribunal that the country willing to host Duterte “has already undertaken to abide by all conditions as would be required by Article 4(2) of the Model Agreement on Interim Release.”

“For the sake of clarity, the defence informs the Pre-Trial Chamber that the [REDACTED] continues to affirm its willingness to cooperate with the court, to accept Mr. Duterte onto its territory, and to enforce conditions of release,” the filing further read.

The prosecution and the lawyers of the drug war victims strongly opposed the defense’s request, asserting that Duterte would pose a direct and significant threat to the victims.

The prosecution earlier said that they would only agree if Duterte would be transferred to their preferred host country, not the defense’s chosen country, which has “a history of extensive cooperation with the court.” The two countries, however, remained confidential.

“The Defense’s submission that Mr. Duterte would not abscond from [his chosen country] for fear of embarrassing his hosts is highly unpersuasive given Mr. Duterte’s history of making disparaging and insulting remarks about heads of state and world leaders,” read the filing of ICC Deputy Prosecutor Mame Mandiaye Niang dated 24 June.

But Kaufman countered that the prosecution’s objection is “either negligible or negotiable,” and that their preferred host country has “an extensive history of actively opposing interim release onto its territory.”

There are 125 state parties to the Rome Statute, the ICC’s founding treaty, at present, nineteen of which are from Asia-Pacific, including Japan, Korea, Cambodia, and Timor Leste, among others.

The African States account for the largest bloc, with 33 countries, followed by Latin America and Caribbean States with 28. Western European and other countries comprise the 25, while Eastern Europe makes up the 20.

The Philippines, under Duterte's watch, withdrew from the Rome Statute in March 2019 after the ICC launched a preliminary probe into the alleged extrajudicial killings linked to the notorious anti-narcotics campaign.

The ICC, however, pushed back and asserted jurisdiction over the killings committed prior to the country’s withdrawal, emphasizing that the preliminary probe had already commenced even before the country departed the treaty.

To recall, Duterte’s camp sought temporary release as early as 12 June, citing advanced age, lack of flight risk, and the unlikely reoffending of the crimes he is accused of. But only two days later, Kaufman asked the ICC to defer the ruling on their request, which the ICC granted.

The 80-year-old Duterte is facing a single charge of crimes against humanity related to his brutal war on drugs, which saw more than 6,000 deaths based on the government’s data, though rights watchdogs estimate that the death toll exceeded 30,000, most of them from low-income communities.

The figure only accounts for the summary killings during Duterte’s presidency, with ICC records spanning earlier incidents from as early as November 2011, during Duterte’s term as Davao City mayor.

The charges against the former leader, however, could still be expanded and include other offenses such as torture and rape if the prosecution can produce an additional set of evidence to substantiate the same during the pre-trial hearing.