The International Criminal Court (ICC) has given the camp of former president Rodrigo Duterte until 5 February to submit its appeal challenging the court’s decision declaring that the 80-year-old ex-leader is still fit to stand trial.

The ICC appointed Judge Luz del Carmen Ibáñez Carranza of the Appeals Chamber to review the defense’s appeal assailing the Pre-Trial Chamber I’s (PTC-I) 26 January ruling.

Carranza was the same presiding judge who upheld the PTC-I decision in October, declaring Duterte a flight risk and ordering his continued detention.

The recent appeal by the defense follows the PTC-I’s decision, rejecting the former’s argument that Duterte is in frail health and unfit to take part in the proceedings on his crimes against humanity case.

The ruling corroborated the December findings of the court-appointed panel of experts, who concluded that Duterte remains capable of standing trial despite claims by his lawyers of his debilitating cognitive impairment and unexplained weight loss.

In a submission dated 28 January, Duterte’s lead legal counsel, Nichlas Kaufman, argued that the PTC-I “committed an error of law and of fact” when it ignored a medical finding prepared by the medical experts hired by their camp.

The findings would supposedly support their assertions that Duterte is physically and mentally weak to evade prosecution in case granted temporary release by the court.

The medical report, Kaufman added, was “highly relevant to the assessment” of Duterte’s continued detention, focusing solely on Duterte’s ability to actualize the risk factors under Article 58(1)(b) of the Rome Statute, which outlines the grounds for continued detention.

This includes being a flight risk, likely to reoffend on the crimes, obstructing the judicial proceedings, and intimidating witnesses.

“The Pre-Trial Chamber’s disregard of the medical report constitutes a factual error,” the defense said. “In refusing to consider the report, the Pre-Trial Chamber failed in its duty to assess whether there exist changed circumstances that would, in turn, affect the necessity of detention, as envisaged under Article 58(1)(b).”

Kaufman has long argued that these risk factors no longer apply to Duterte and that his “frail” condition warrants his interim release from ICC detention pending the hearing for the confirmation of his murder charges.

As a result, Duterte’s lawyer sought a reversal of the 26 January decision and requested that he be granted immediate interim release pending the confirmation of his charges scheduled for 23 February.

The confirmation of charges hearing is a crucial phase in ICC proceedings, as it is where the judges decide whether the case against an accused has enough merit to proceed to a full trial.

A case could also be dismissed at this early stage if the judges find that the prosecutors lack substantial evidence.

Duterte is facing three counts of murder for crimes against humanity over the killings recorded between 1 November 2011 and 16 March 2019, spanning his time as Davao City mayor and as president. He has been detained in The Hague, Netherlands, since his arrest in Manila on 11 March.