MANILA, Philippines – Former Philippine president Rodrigo Duterte may be going to trial at the International Criminal Court (ICC), but he gets a fresh chance to bid for his freedom, even if temporary, because the yearly review has kicked in.

In the ICC, regardless of whether a suspect has lost his request for an interim release, the court will conduct a yearly review to see if detention is still warranted. Every year, judges will examine if there’s a change in circumstances.

The trial chamber III — a new set of three judges tasked to try Duterte for crimes against humanity — will now be doing that yearly review. Comments opposing freedom were already made by the victims’ counsels during the annual hearing — held on the last day of the confirmation of charges hearing last of February — but the trial chamber said new comments (“observations”) have to be sent.

“In light of the developments following the annual hearing, the Chamber considers it necessary to give the parties and participants the opportunity to submit any observations they may have regarding the Accused’s continued detention or release, with or without conditions, including the existence of any changed circumstances,” the trial chamber said on May 1.

All parties have until May 8 to send their comments. Duterte will go to trial for being the alleged indirect co-perpetrator of crimes against humanity of murder and attempted murder. The case covers 49 incidents that killed 78 people across a period nine years from Duterte’s time as Davao City mayor, to when he was president.

Temporary freedom, or interim release in the ICC, is granted to suspects if they do not have any of the three risk factors:

1. Risk of fleeing the case
2. Risk of obstructing the case by intimidating witnesses
3. Risk of re-committing the same alleged crimes

The ICC has not yet granted interim release to a crimes against humanity suspect.

What happened before

On the last day of the confirmation of charges hearing, the prosecution said that Duterte’s waiver to attend the hearing means he is flight risk. Duterte signed a waiver to say he won’t be attending the confirmation hearing, expressing no interest in following the case. During trial, Duterte is compelled to attend.

“He said that he was forcibly pushed into a jet and renditioned to The Hague. He refers to his arrest as a kidnapping. None of which sounds as though those are the words of a person who would return voluntarily to the Court,” said prosecution trial lawyer Julian Nicholls during the hearing.

That thousands of his supporters are still campaigning for the Philippine Supreme Court to grant his children’s petitions for writ of habeas corpus is also a risk factor, said victims’ lawyer Joel Butuyan.

“This show of support proves the stark reality that, if Mr. Duterte is released from detention, there is a huge risk that his supporters will find ways and means to facilitate his surreptitious return to the Philippines in order to free him from this Court’s jurisdiction,” Butuyan said during the hearing.

Before this, Duterte’s lead defense counsel Nicholas Kaufman had tried to introduce a new ground — that the former president’s alleged cognitive impairment impacts those risk factors. The pre-trial chamber did not fully litigate this, and so Kaufman went to the appeals chamber to argue unfairness in proceedings. The appeals chamber rejected that ground last March.

An independent panel of medical experts had ruled that Duterte still has sufficient executive functions to meaningfully understand and participate in his case, or in the ICC’s legal term, he is fit for trial.

The trial chamber III will hold a status conference of May 27, which will begin the next stages, including setting a date for the trial.

UK’s Judge Joanna Korner will be the presiding judge of the trial chamber III. The two other judges are Keebong Paek of Korea; and Nicolas Guillou of France. Judge Guillou is among the ICC officials slapped with American sanctions over the court’s investigation of the October 8th attack on Israel, and Israel’s subsequent destruction of Gaza. Judge Guillou was part of the chamber that issued the arrest warrant for Israel Prime Minister Benjamin Netanyahu.

– Rappler.com