The camp of former president Rodrigo Duterte continues to exhaust all legal remedies to release him from the International Criminal Court’s custody ahead of his impending pretrial hearing for crimes against humanity of murder linked to his bloody drug war, scheduled for 23 February. 

Duterte’s lead legal counsel, Nicholas Kaufman, cited the 80-year-old ex-leader’s “unfeebled physical state” to support their longstanding claims that he cannot evade custody contrary to the conclusions by the court. 

This latest appeal, filed before the Appeals Chamber, seeks the reversal of  ICC Pre-Trial Chamber I’s (PTC-I) 26 January decision, finding Duterte still fit to stand trial despite the defense’s claims that he is already too weak to participate in the proceedings due to his advanced age, unexplained weight loss, and cognitive impairment.

As a result of the alleged “debilitating” condition, Duterte must be released from ICC custody, the defense petitioned.

The PTC-I’s ruling, however, indicated that Duterte will continue to be detained while awaiting the confirmation of charges hearing. 

In petitioning the court anew, Kaufman argued that the court gravely erred when it declined to consider the medical report prepared by the neurologist and neuropsychologist commissioned by the defense, which backs their assertions of Duterte’s cognitive impairments and his inability to actualize risk factors under Article 58(1)(b) of the Rome Statute. 

“The medical report detailed Mr. Duterte’s lack of executive functioning, sustained planning capacity, and rapid decision-making — to say nothing of his enfeebled physical state — that would make it impossible for him to evade custody,” reads the defense’s 18-page submission dated 5 February. 

“Had the Pre-Trial Chamber admitted the medical report, it would have found that the risks underpinning its previous decision on detention no longer exist or could be mitigated with suitable conditions of release,” it added. 

Article 58(1)(b) of the Rome Statute, the ICC’s founding treaty, outlines the grounds for continued detention of a pretrial detainee.

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

Both the PTC-I and the Appeals Chamber junked the defense’s previous petition for an interim release, asserting that Duterte continues to possess such risk factors. 

Kaufman, on the other hand, has repeatedly claimed that Duterte’s current “frail” condition makes him incapable of actualizing these risk factors; hence, he must be released. 

The defense petitioned the Appeals Chamber to reverse the January ruling by the PTC-I in its entirety, to come up with its own conclusion and determine whether or not the Chamber “misinterpreted the law.”

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.