MANILA — The prosecution of the International Criminal Court (ICC) clarified claims of former president Rodrigo Duterte’s lawyer Nicholas Kaufman that it has not opposed the interim release petition of former president Rodrigo Duterte.

In response to Duterte’s urgent request for interim release, ICC deputy prosecutor Mame Mandiaye Niang clarified “that the (prosecution’s) agreement to the conditions was based exclusively on the express understanding that Mr. Duterte’s potential interim release, if granted by the Chamber, would take place in a [redacted information], not [redacted information] as the defense seems to suggest.” 

The filed response was made public on June 23. 

The prosecution pointed out, “No agreement whatsoever was reached with the defense on conditions of interim release to any country other than [redacted information]. For absolute clarity: the Prosecution has not agreed in any way to conditions for interim release to [redacted information], or anywhere else in the world, other than [redacted information].” 

The prosecution added that it reserves its right to respond to Duterte’s formal application to the chamber for interim release to a country chosen by Duterte if and when it may be filed. 

“The prosecution cannot agree not to oppose a specific submission before the submission has been filed by the defense and reviewed by the prosecution,” the prosecution said. 

The prosecution said that it opposed Duterte’s interim release to the country cited by his lawyer saying that it is not an appropriate state to host the former president. 

For one, the prosecution said it only agreed to the conditions of interim release on the basis that it would be implemented to a country that has an extensive history of cooperating to the ICC, unlike the country of choice of the defense that does not have the record of cooperation with the court.

The prosecution added that the necessary conditions for release will be impossible to implement in the country that the defense is choosing. 

They added that “it would be time consuming and complex to secure Mr. Duterte’s attendance in the courtroom given the distance.” 

There are also additional concerns about the country which the defense is choosing, the prosecution said, adding that it cannot fulfill at least one of the conditions required for the temporary release of Duterte. 

News reports said that Australia is a country of choice.

The prosecution also said that the defense’s claim that Duterte will not abscond out of his respect for his host country is unconvincing, given his history of making offensive remarks about world leaders as well as other countries and inter-state authorities. 

On the defense claim that the ICC has granted temporary release to other detainees, the prosecution said that the ICC has granted provisional release for detained persons to attend funerals, not an extended period of interim release. 

Detention is necessary 

The prosecution said that as stated in the article 58(1) of the Rome Statue, Duterte’s detention is necessary to 1) ensure his appearance at trial, 2) ensure that he does not obstruct or endanger the investigation or court proceedings, and 3) prevent him from committing crimes within the jurisdiction of the Court. 

While the defense claims that Duterte is committed to returning for the trial scheduled this September, however, the prosecution noted that when he was being arrested last March, Duterte told the arresting officers that they would have to kill him to take him to The Hague. 

The prosecution added that prior to his arrest, Duterte also repeatedly made public assertions that if the ICC arrests him, “There will be a shootout, I will finish all those sons of bitches.”

“Mr. Duterte’s proclamations that that he would rather die than appear before the Court, or would ‘finish’ ICC staff assisting with his arrest and transfer in ‘a shootout,’ is not consistent with the behavior of an individual committed to returning for his appearance at trial and casts doubt on his recently stated ‘commitment,’” the prosecution said. 

The prosecution also cited efforts of the Duterte family to hinder his arrest, such as the petition filed at the Supreme Court to grant a permanent injunction/prohibition that would perpetually restrain and prohibit government officials and all persons under its authority from cooperating with the ICC.

It also mentioned acts of violence by Duterte’s girlfriend Honeylet Avanceña and their daughter Kitty against officers arresting Duterte. 

These behaviors and claims of Duterte’s family members that he was kidnapped by the ICC “demonstrate that he does not accept the legitimacy of the legal proceedings against him,” it asserted.

The prosecution added, “His continued detention is therefore necessary to ensure his appearance at trial pursuant to article 58(1)(b)(i) of the Statute. A victim of a kidnapping is unlikely to return to the custody of the kidnapper if given an opportunity to escape.”

Duterte, being president of the Philippines, has held the highness office for six year, the prosecution argued, adding he still has strong support from powerful individuals. 

Her daughter, Sara Duterte, is also the vice president of the Philippines and consistently rejected the legitimacy of her father’s detention. 

Duterte’s lawyer also claimed that he has “current strong influence over the police in his home town of Davao – the same police department that the prosecution alleges was involved in murders at his direction during the mayoral period.”

On intimidating the witnesses if released

As asserted by families of the victims of Duterte’s “drug war,” his interim release, if granted, pose a risk of endangerment or obstruction of 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 prosecution said that if released, Duterte would have greater access to his associates and family who remain in positions of power with access to networks and personnel to carry out witness interference. 

For one, Sara Duterte is the vice president of the country and a reserve colonel in the Army with strong links to the police and military. 

Her sibling, Sebastian Duterte was elected as Vice Mayor in Davao City and is likely to function as mayor in their father’s absence. 

Duterte and his associates also have a history of interfering with investigations against him, said the prosecutor. 

The prosecution cited the case of former Senator Leila de Lima who led the investigation of the extrajudicial killings in Davao City since her time as the chairperson of the Commission on Human Rights and at the Senate when she was elected as a senator and became the chairperson of the Senate Committee on Justice and Human Rights. 

Duterte turned the tables on de Lima when he became president, orchestrating her arrest and detention for several years. De Lima was later cleared of most drug-trafficking charges against her and is set to return to Congress as a partylist representative.  

Duterte also made public threats against individuals who are openly opposing his blood campaign against illegal drugs, the prosecution said in its opposition to Duterte’s temporary liberty bid. 

“For example, when elements of the Catholic Church criticized war on drugs killings, Mr Duterte reportedly gave a speech calling for the public to ‘kill’ bishops. On other occasions, he reportedly instructed police to ‘shoot’ human rights activists and threatened to block CHR investigations and to abolish it altogether,” it said.

“He also threatened to slap a United Nations Special Rapporteur if she investigated his war on drugs,” the prosecution said. 

To evade further investigation of the extrajudicial killings, Duterte withdrew the Philippines from the Rome Statue approximately a month after the former prosecutor of the ICC announced that the Philippines was under preliminary examination. 

The next hearing of Duterte is scheduled on Sept. 23 this year. 

Families of those who were killed in Duterte’s drug war also expressed apprehension in Duterte’s request and hoped that their testimonies submitted to the ICC will be reconsidered. (RBV)