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MANILA, Philippines — Contrary to the claim of the lawyers of former president Rodrigo Duterte, the Office of the Prosecutor (OTP) of the International Criminal Court has formally asked ICC pre-trial judges to deny his request for interim release to an undisclosed third country.
In a 15-page response dated June 23, ICC deputy prosecutor Mame Mandiaye Niang asked the Pre-Trial Chamber I to reject Duterte’s urgent request, citing the risk of endangering ongoing investigations and even the court’s proceedings.
He directly addressed the claim of Duterte lead counsel Nicholas Kaufman that the prosecution “has confirmed its non-opposition to interim release,” provided that certain terms and conditions are met.
In a 16-page urgent request for interim release dated June 12, Kaufman said Duterte is seeking his interim release from detention in The Hague and transfer to a third host country that is a member of the ICC.
Niang said the OTP’s earlier discussions with the defense were in the context of another country, which it described as having “a long history of cooperation with the Court.”
“No agreement whatsoever was reached with the Defense on conditions of interim release to any country other than (REDACTED). For absolute clarity: the Prosecution has not agreed in any way to conditions for interim release to (REDACTED), or anywhere else in the world, other than (REDACTED),” he added in the filing. The use of the term “redacted” in the filing was not explained.
In its response, the OTP said Duterte’s continued detention is necessary to ensure his appearance during trial.
He cited various factors, such as Duterte’s resistance to his arrest, as well as the claims by his family and lawyers that he was “kidnapped” by the court.
Among those it cited was the “physical acts of violence” reportedly committed by Duterte’s common-law wife, Honeylet Avanceña, who was caught on video hitting an arresting officer with her phone when the former president was being arrested.
The prosecutor also cited Kaufman’s statements, including claims that Duterte’s arrest was a “political hit-job” and that the prosecution had “colluded” with the Philippine government to abduct the former president.
“Mr. Duterte’s behavior, as described above, and the claims of his family and lawyers that he was kidnapped or abducted by the Court, demonstrate that he does not accept the legitimacy of the legal proceedings against him,” read Niang’s filing.
“His continued detention is therefore necessary to ensure his appearance at trial … A victim of a kidnapping is unlikely to return to the custody of the kidnapper if given an opportunity to escape. Mr. Duterte, his family, vocal supporters and counsel all consider him a victim of a kidnapping/abduction,” it added.
The ICC prosecutor also noted Duterte’s political position and international contacts, as well as his financial situation and resources.
For the prosecution, the former president remains a flight risk, citing his recent election as Davao City mayor and his ability to travel outside the Philippines.
Duterte’s release, it added, could endanger and obstruct the ongoing investigation “because of the possible opportunity to intimidate or threaten witnesses either directly or indirectly, through his associates or his family members.”
The OTP cited repeated history of Duterte interfering with investigations against him, such as his decision to withdraw the Philippines from the ICC.
It also cited the current positions held by his children, including Vice President Sara Duterte, who is also a reserve colonel in the Army.
“In these positions, she wields power and influence over governmental structures, as well as over her father’s former allies and supporters,” the prosecutor said, referring to the Vice President.
It also cited the ongoing impeachment proceedings against her, particularly allegations that she plotted to assassinate President Marcos.
“Overall, Mr. Duterte, his family and his associates are capable of influencing and harming witnesses as a result of their positions of power … The release of Mr. Duterte could risk bringing real and substantial harm to the legitimate interests of victims and witnesses,” the prosecutor said.
Niang also maintained that humanitarian factors “are not, on their own, a consideration” in the analysis of the request.
The jurisprudence cited by the defense, he noted, only granted provisional release for humanitarian reasons to allow detained persons to attend funerals and “not an extended period of interim release.”
September freedom
The Vice President said lawyers of her father want to have their plea for his temporary freedom and transfer to a third country from the Netherlands approved by the ICC no later than September due to his age and failing health.
“I asked the lawyers for the timeline of the interim release and months was the answer, not weeks. Months was the answer, but they wouldn’t give a definitive timeline, but they said they’re hoping to do it before September and they’re in a rush because of his age and his health condition,” Duterte said.
She said her father inquired anew on his interim release during their last conversation.
“He asked about the interim release and then I told him that I cannot (discuss the interim release) because the ICC is listening on our telephone conversations because apparently my name appears in many of the documents with regard to the ICC case,” the Vice President said.
“So, they’re listening in on our conversations. And I told him that I cannot discuss the specifics with him because I do not have privileged communication,” Duterte said.
“I’m helping the lawyers. All the family members are supporting the lawyers as well,” she added.
According to Duterte, her father has lost weight.
“Well, you haven’t seen him this thin before. I don’t think he’s ever been this thin since maybe before his marriage. So he’s thin because of the lack of appetite and because of the weather, it’s very cold for him. He’s not used to the cold. And I think it’s the way that they cook the food. It’s not really traditional Filipino food. But I’m happy that he gets rice every day. But yes, he’s given milk as well if he doesn’t have the appetite to eat,” she said.
Duterte said the ICC should allow the interim release of her father, for his being a “super senior citizen” at the age of 80.
The Vice President said that Australia is among the countries being considered as temporary host country for the former president if his petition for interim release is granted.
“Australia is in the list of countries that are considered by the lawyers, but I am not here for the interim release. Not for this visit,” Duterte said following her recent visit in Melbourne, Australia.
Duterte said all remedies are being considered to secure the release of her father, including the filing of a case before the local Dutch court.
“Former (presidential spokesman) secretary Harry Roque already sat down and discussed with a local Dutch lawyer, and he has been asking me to do an online consultation and vetting of the lawyer. I’ve not done that because I’ve not sat down and discussed this as well with the former president Rodrigo Duterte. Since he is the client, I think he should be the one to decide and he should be informed of the other remedies that are available to him,” she said.
