LAST week, Rodrigo Duterte’s defense lawyer Nicholas Kaufman urged the International Criminal Court to shelve its case of crimes against humanity against the former president, who he said was mentally unfit for trial.
Duterte “is not fit to stand trial as a result of cognitive impairment in multiple domains…Mr. Duterte’s condition will not improve and, for this reason, the Pre-Trial Chamber must adjourn all legal proceedings in his case indefinitely,” he explained.
The former leader is suffering from “significant cognitive deficiencies” affecting his memory, his day-to-day functioning, and his capacity for complex reasoning, Kaufman added.
Is this a reasonable demand by Duterte’s defense lawyer?
This is not likely to be granted by the ICC. After all, Duterte is accused not of a minor offense but a serious one – mass murder – in the course of a bloody campaign against illegal drugs from 2016 up to the end of his term in 2022.
This war on drugs targeted mostly alleged drug suspects from the ranks of the poor and not the big-time drug lords.
While the Rome Statute, which established the ICC, emphasizes the rights of detainees to humane treatment, this may not apply in Duterte’s case.
If his health is really deteriorating as determined by a court-appointed medical doctor to a point where continued detention would be inhumane or life-threatening, then interim release for medical treatment may be legally and ethically justifiable.
On the other hand, any decision by the ICC on this issue will depend on the gravity of the charges against him and risk factors. Crimes against humanity are among the gravest charges under international law. The ICC does not take them lightly.
The court will consider several factors.
One, there’s the risk of flight by Duterte to a country that does not want to cooperate with the ICC.
Two, he could obstruct justice by influencing witnesses or tampering with evidence.
Three, Duterte is a former president with strong political connections and a mass base in southern Philippines, and could rally his supporters to keep him out of prison.
And four, the ICC has strict conditions for interim release, such as strict monitoring and house arrest, and therefore is rarely granted.
In other words, those expecting the ICC to believe the Duterte camp’s arguments for his interim release are likely to be disappointed.
Even if Duterte suffers from frail physical health and cognitive impairment, the ICC would most likely make a decision on the basis of available evidence and rely on testimony by families of victims and even by some of those who actually took part in the violent war on drugs.
