Duterte update: To release or not to release

It was pretty chilly while I was at Den Haag but it wasn’t just about the weather. It was the fact that I was on my way to the International Criminal Court where former president Rodrigo Roa Duterte was being detained that caused the chilling effect. Literally.

While on the bus, my companion and I were fortunate enough to have kind-hearted OFWs give us clear directions for our journey and the right stops that would lead us to the ICC. It wasn’t only cold, it was also rainy. One OFW we encountered even asked if there was an event that day, which meant that many Filipinos in The Hague were up to date on occurrences that happen with regard to the former president.

The Dutch people are fully aware of the Philippine situation. They have witnessed the rallies in honor of Duterte. The International Criminal Court, or the ICC, has as its founding treaty the Rome Statute that grants the ICC jurisdiction over four crimes, namely: genocide, crimes against humanity, war crimes and crime of aggression.

In terms of legal procedures, the ICC may function differently from our national jurisdiction. With regard to cooperation, the ICC does not have its own police force or enforcement body, thus it relies on cooperation of countries worldwide for support, specifically in making arrests, transferring arrested persons to the ICC detention center in The Hague and freezing assets of the suspect as well as enforcing sentences.

The Philippines’ withdrawal from the statute took effect on March 17, 2019 and while it has done so, the ICC retains jurisdiction with respect to alleged crimes committed in the Philippines while it was a state-party from Nov. 1, 2011 up until and including March 16, 2019. This would explain the residual impact on the case of former president Duterte.

President Marcos Jr., on the other hand, has continued to maintain that the ICC has no jurisdiction on the Philippines since he took his oath of office in 2022. As the case of former president Rodrigo Roa Duterte continues to fester, most recently, a request was made by Duterte for a transfer to a third country while he faces trial at the ICC, a rule that seems validated by the court itself under Rule 119 of the ICCs Rules of Procedure and Evidence, wherein a detainee may request or petition for interim release or even relocation to another country provided the request is grounded on specific humanitarian, medical or security concerns and will not compromise the integrity of the trial.

A human rights lawyers’ group, however, has called upon the ICC to reject the request, saying that an interim release may “threaten” the safety of victims and the integrity of the prosecution as a whole. But then again, rules are rules and it is now a question of “to release or not to release.”

In 2021, the Pre Trial Chamber A of the ICC decided to grant interim release to Paul Gicheru, a lawyer suspected of offenses against the administration of justice under Article 70(1)(c) of the Rome Statute, consisting of corruptly influencing ICC witnesses in cases from the Kenyan situation in 2013. This marked the second time that the ICC granted an interim release to person pending trial.

To release or not to release? I suppose in this case one can say it is possible because it has been done under the rules of the court. In the case of Bemba et al, judges ordered the interim release of four out of five suspects where Bemba was released only pending a final decision on his sentence and after being acquitted in the main case.

For those suspected of crimes against Article 5 (genocide, crimes against humanity and war crimes), interim release has never been granted due to potential risks that prevents authorization. Then again there are implicit presumptions – the presumption of innocence being one of the pillars of human rights protection in criminal proceedings AND of the Rome Statute, which demands that for those awaiting trial, liberty is the general rule and detention the exception .

In the end , the question remains – “to release or not to release” and the Pre Trial Chambers confronted by such requests have underscored that the relevant provisions must be made in accordance to internationally recognized human rights as required by the Rome Statute. It has been recorded that in the 18 years of the ICC, the court  employed detention pending trial under exception and 11 people have spent their pre-trial proceedings stage in detention.

To release or not to release ? As many continue to grapple with the question, it might be worth noting that the ICTY (International Criminal Tribunal for the Former Yugoslavia) also faced a situation where it adopted a presumption against provisional release but eventually, such a presumption progressively disappeared as judges became extremely concerned with the adverse effects of prolonged detention on the defendant’s well-being, which not only goes to the detriment of the defendant but also the general interests of justice.

Hence, if a detained person becomes unfit to stand trial, the swift conduct of the proceedings is affected and, in the worst case scenario, their death determines the termination of the trial. To release or not to release? In the end, the seriousness of offenses cannot be the sole reason that determines the outcome for interim release and Rule 119 can allow a temporary transfer under strict supervision for the former president, who is said to be suffering from serious health conditions.

It seems to be a question of justice and mercy and,  should a release be granted, for as long as the ICC retains jurisdiction, this would not constitute a violation of the Rome Statute. At the end of the day, under the rules, a transfer to a third country while facing trial would be possible without threat to the pursuit of justice.