The International Criminal Court’s recent denial of former president Rodrigo Duterte’s plea for an interim release is already “final,” unless the defense raises new compelling grounds to convince the court to reverse it, the lawyer of the drug war victims said Monday. 

The Duterte camp’s petition to temporarily release him from detention was unanimously denied, not once, but twice, by the Pre-Trial Chamber I in September and the Appeals Chamber on 28 November, on the grounds that he poses a flight risk. 

According to ICC assistant to counsel Kristina Conti, one of the lawyers of the families of the victims of the Duterte administration’s notorious bloody war on drugs, the Appeals Chamber is the final avenue or last resort for appeals. 

Hence, the rulings handed down by the said chamber are already final and not subject to further appeals. 

This leaves the defense with no choice but to reintroduce a new set of compelling arguments, such as the possible further deterioration of Duterte’s allegedly already frailing condition, Conti explained.

“In this case, it’s over. His appeal as of the situation in June, August, or September—because he repeated it twice—is already over,” Conti said in Filipino in an interview. 

Duterte’s lead legal counsel, Nicholas Kaufman, confirmed that he will “reintroduce” their petition to release the 80-year-old former president from ICC’s custody once the “results of the medical evaluation” are released this week. 

Conti, on the other hand, cast doubt that the court will grant the same.

The ICC Pre-Trial Chamber I has formed a panel of doctors who will determine whether or not Duterte is still fit to stand trial. Their report is expected to be released by 5 December.

Aside from the interim release bid, the defense also has a pending petition urging the ICC to determine whether Duterte is still fit to stand trial as another route to secure his release.

The ICC sets 12 December as its last day before it enters its judicial recess. Conti is not ruling out the possibility that the Pre-Trial Chamber I will release the decision on Duterte’s fitness before Christmas.

"But for my estimation, most likely they would decide on fitness to stand trial in January, and they might schedule the confirmation of charges hearing in a month, so February,” she averred. 

The confirmation of charges was initially scheduled for 23 September, but this was postponed indefinitely following a petition by the defense, alleging that Duterte is not fit to stand trial “as a result of cognitive impairment.”

This makes Duterte unable to contribute to his own defense, rendering his participation in the proceedings totally ineffective, according to his lawyers. 

ICC prosecutors and the counsel of drug war victims, however, strongly opposed any attempt to release Duterte from detention, asserting that his alleged health issues, particularly memory loss, do not suffice to establish that he is unfit to stand trial.

Duterte, who has been detained at Scheveningen Prison since his arrest on 11 March in Manila, is facing three counts of murder for crimes against humanity over the summary killings committed by police during his notorious, brutal anti-narcotics campaign, which killed thousands, mostly from poor communities.

Earlier, Conti mentioned that trials in the ICC usually last for eight to nine years, though a recent one lasted only about three years, the quickest on record.

In Duterte’s case, she said, “I get this feeling that the prosecution is eyeing a quick trial, presentation. They say they can finish it in two years.”

Kaufman petitioned the ICC to grant Duterte interim release as early as 12 June, citing, among others, his advanced age and his alleged debilitating health.

He assured the court that the grounds under Article 58(1)(b) of the Rome Statute, which outline the need for a continued detention of an accused—including that he poses a flight risk, is likely to reoffend the crimes and obstruct or endanger the ongoing investigation—were not sufficiently met. 

The Appeals Chamber, however, upheld the September decision of the Pre-Trial Chamber I that declared Duterte’s detention “continues to remain necessary” to ensure that he will appear in the trial, and will not obstruct or endanger the ongoing investigation into his bloody drug war.