ICC told: Release Duterte while fitness for trial is assessed

The camp of former President Rodrigo Duterte has renewed its plea to the International Criminal Court (ICC) for his interim release pending the tribunal’s decision on whether the ex-leader is still fit to stand trial.

The defense argued that they had informed the court about Duterte’s condition long before his initial court appearance, initially set on 23 September.

However, Duterte’s lawyer, Nicholas Kaufman, lamented that their request is facing further delays as the prosecution is persistently blocking it, making it difficult for the court to render a decision immediately.

He argued that Duterte’s right to liberty cannot be suppressed by administrative delay, and further justifies the need for his temporary release from detention.

“Mr. Duterte should not remain in detention while proceedings on fitness—now expected to take no less than [REDACTED] at a minimum—are underway,” the five-page filing dated 16 September read.

“Administrative delay, occasioned by [REDACTED], cannot justify the abrogation of liberty. Provisional release should be ordered as soon as continuing detention ceases to be reasonable,” it added.

The defense’s latest plea follows the ICC’s postponement of the confirmation of charges hearing, set on 23 September, in favor of Duterte, who is allegedly “not fit to stand trial.”

The defense sought to indefinitely pause all legal proceedings, including the pre-trial hearing, citing the 80-year-old former president’s health condition.

The ICC Pre-Trial Chamber I granted the petition, but emphasized that the “postponement will be limited to the time strictly necessary to determine whether Mr. Duterte is fit to follow and participate in the pre-trial proceedings,” and all other hearings.

The prosecution, however, contended that the defense’s claims of Duterte’s health issues, particularly memory loss, do not suffice to establish that he is unfit to go on a trial.

Deputy Prosecutor Mame Mandiaye Niang also called for a second opinion from a medical expert—selected by the prosecution team—to reassess whether Duterte is physically and mentally incapable of participating in the proceedings.

Furthermore, the prosecution argued that while the temporary delay is warranted, they underscored the need to keep the proceedings moving forward, asserting that the confirmation of charges hearing should proceed before year-end.

In addition, Mandiaye Niang contended that keeping Duterte in the ICC’s custody is necessary given the continued rejection of the legitimacy of the ICC’s proceedings by the Duterte family, including Vice President Sara Duterte, as stated in their recent interviews.

"The release of Mr. Duterte would provide him with greater access to his associates and family who are actively attempting to interfere with the proceedings against him, including through [REDACTED]," the prosecution said.

The defense, however, countered that the interim release “will not, in any way, affect or hinder the proceedings on fitness or of the case more generally.”

Kaufman also assured that the unnamed country that agreed to host Duterte is willing to facilitate any conditions imposed by the ICC.

“Mr Duterte’s release while litigation on fitness is underway would ensure a proper balance between a suspect’s rights under the [Rome] Statute while respecting the efficiency and integrity of the proceedings,” the defense stated.

There are 125 state parties to the Rome Statute, the ICC’s founding treaty. Nineteen are from Asia-Pacific, including Japan, Korea, Cambodia, and Timor-Leste.

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 comprised the 25, while Eastern Europe comprised the 20.

Only Argentina and Belgium have signed cooperation agreements on interim release with the ICC.

To recall, Duterte’s camp sought temporary release as early as 12 June, citing 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.

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.