LIVE: ICC rules on former Philippine President Rodrigo Duterte’s release

Key Concepts

• Article 58(1)(b) of the Statute: This article outlines the grounds for detention, specifically focusing on the risk of the suspect absconding, destroying evidence, or obstructing justice.
• Article 60(2) of the Statute: This article pertains to the conditions for detention, requiring that detention appears necessary.
• Appeals Chamber: The judicial body that reviews decisions made by lower chambers.
• Pre-Trial Chamber: The chamber responsible for initial assessments, including decisions on detention and release.
• Risk Assessment: The process of evaluating the likelihood of a suspect posing a danger or flight risk.
• Interim Release: Release of a suspect pending trial, often with conditions.
• State Warranties: Guarantees provided by a state regarding the implementation and enforcement of release conditions.
• Humanitarian Grounds: Reasons for release based on a suspect's health or other compassionate circumstances.

Grounds of Appeal and Appeals Chamber's Findings

This summary details the Appeals Chamber's review of the defense's three grounds of appeal against the Pre-Trial Chamber's decision to maintain detention.

First Ground of Appeal: Assessment of Risks Under Article 58(1)(b)

• Main Topic: The defense argued that the Pre-Trial Chamber misapprehended the legal standard for assessing risks and erred in its weighing of evidence.
• Key Points & Legal Standard:
  • The Appeals Chamber affirmed that the Pre-Trial Chamber correctly applied the legal standard: detention is warranted if there is a possibility, not an inevitability, of the events listed in Article 58(1)(b) occurring.
  • The defense failed to demonstrate that the Pre-Trial Chamber misunderstood this standard.
• Assessment and Weighing of Evidence:
  • Reliance on Documents: The Pre-Trial Chamber relied on five documents: media articles, NGO publications, and a book, to infer Mr. Duterte's inclination to interfere with investigations.
  • Media Article: The Appeals Chamber found it reasonable for the Pre-Trial Chamber to rely on a media article, even if it didn't directly implicate Mr. Duterte in briefing individuals. The article referred to statements from close associates, including one about remaining loyal.
  • Other Documents: The Appeals Chamber held that there is no legal impediment to using newspapers, articles, or other public/open sources for risk assessments under Article 58(1). Corroboration is not required.
  • Network of Supporters: The Pre-Trial Chamber's reliance on a network of supporters was deemed reasonable. The Appeals Chamber has previously held that the existence of a support network and financial means can be relevant to assessing flight risk or interference with investigations. Access to international contacts can also facilitate absconding.
  • Case-Specific Assessment: The Pre-Trial Chamber's assessment of Mr. Duterte's network of supporters was case-specific, considering his position as former President and recent re-election as Mayor of Davao City.
• Irrelevant Considerations:
  • The defense argued that the Pre-Trial Chamber relied on irrelevant factors. These included Mr. Duterte's statements, statements by others, his former presidential status, his re-election as Mayor, and the gravity of alleged crimes and potential sentences.
  • The Appeals Chamber found that the defense did not explain why these factors were irrelevant and failed to substantiate that the Pre-Trial Chamber's reasoning was unreasonable.
  • The gravity of alleged crimes and potential sentences are relevant as they can increase a person's incentive to abscond.
• Health Condition:
  • The defense argued that Mr. Duterte's health condition was a mitigating factor that the Pre-Trial Chamber failed to give appropriate weight.
  • The Appeals Chamber noted that while there is no specific provision for release on health grounds, a detained person's medical condition may affect the risks under Article 58(1)(b) and could be a reason for conditional release.
  • The Pre-Trial Chamber considered the health reports but found they were unable to affect its finding on the risks under Article 58(1)(b). The Appeals Chamber found this approach reasonable.
• Conclusion on First Ground: The Appeals Chamber rejected the first ground of appeal, finding no error in the Pre-Trial Chamber's assessment of risks or weighing of evidence.

Second Ground of Appeal: Proposed Conditions of Release and State Warranties

• Main Topic: The defense challenged the Pre-Trial Chamber's assessment of proposed conditions of release and state warranties.
• Key Points:
  • The Pre-Trial Chamber did not criticize a lack of detail in the proposed conditions but rather in how the receiving state would implement them.
  • The Pre-Trial Chamber found that the identified risks could not be mitigated by the proposed conditions.
  • The Pre-Trial Chamber was not obliged to seek further observations from the concerned state because it did not envisage the possibility of release given the identified risks.
• Mitigation of Risks:
  • The Appeals Chamber found that the Pre-Trial Chamber did not require an elimination of risks but rather concluded that the suggested conditions did not sufficiently mitigate the identified risks.
  • The Pre-Trial Chamber considered the practical implications of ensuring adherence to the proposed conditions, especially given that all three risks under Article 58(1)(b) were established.
  • The Appeals Chamber considered it irrelevant which conditions the prosecutor agreed to when discussing potential release to a host state. What matters are the conditions and warranties preferred in relation to the specific state party concerned.
• Conclusion on Second Ground: The Appeals Chamber rejected the second ground of appeal, finding no error in the Pre-Trial Chamber's assessment of proposed conditions of release and state warranties.

Third Ground of Appeal: Humanitarian Grounds

• Main Topic: The defense argued that the Pre-Trial Chamber erred by not considering humanitarian grounds as an independent consideration or mitigating factor.
• Key Points:
  • The Pre-Trial Chamber did not refuse to address humanitarian grounds but found that they were not sufficiently set out in the case.
  • The Pre-Trial Chamber assessed the humanitarian grounds in light of the defense's arguments and the established risks under Article 58(1)(b).
  • The Pre-Trial Chamber found the existence of risks that were not mitigated by Mr. Duterte's purported condition or any imposed condition.
• Conclusion on Third Ground: The Appeals Chamber rejected the third ground of appeal, finding no error in the Pre-Trial Chamber's assessment of humanitarian grounds.

Overall Conclusion

The Appeals Chamber unanimously confirms the impugned decision of the Pre-Trial Chamber. The defense failed to demonstrate errors in the Pre-Trial Chamber's assessment of risks, weighing of evidence, consideration of release conditions, or evaluation of humanitarian grounds. The Pre-Trial Chamber's conclusions were based on a comprehensive assessment of the information before it.