Only the judges of the International Criminal Court (ICC) can order the release of former president Rodrigo Duterte from detention, the ICC spokesman said.
Former president Rodrigo Duterte at his initial appearance hearing via video link on Friday, March 14, 2025, at the International Criminal Court in The Hague, Netherlands. Also in the photo is his legal counsel, former executive secretary Salvador Medialdea. (ICC Photo)
In a virtual interview by NewsWatch Plus PH on Monday, March 24, ICC spokesman Fadi El Abdallah refused to comment on the petitions filed before the Supreme Court (SC) questioning the constitutionality of the arrest of the former president, but he also stated that it will be up to the ICC judges to release a “suspect”.
“For the ICC, the release of a suspect can only be ordered by the ICC judges themselves so any request to that effect has to be submitted to them and then we will see what are the reasons that are in this request and the judges will make a decision on,” he explained.
The Duterte camp continues to question the legality of the former president’s arrest before the SC and is expected to raise the same issue before the ICC’s Pre-Trial Chamber in hopes of dismissing the charges against the former president on procedural grounds.
But several notable legal experts, including former SC associate justice Antonio Carpio, said that the ICC will continue its trial on the former president’s case whether his arrest was legal or not.
He explained that the ICC rule “is very clear” that even if a suspect was illegally arrested by the surrendering state, the ICC will still acquire jurisdiction on the individual because the Court had nothing to do with the illegal arrest done by the surrendering state.
Interim release
Aside from questioning the legality of the former chief executive’s arrest, the Duterte camp is also expected to request for an interim release while he’s awaiting for the Sept. 23 confirmation of charges hearing.
El Abdallah explained that there are certain conditions that must be met before the ICC judges can decide on an interim release of a suspect.
“For the interim release, it has to be presented to the judges and the judges will decide if that is possible. In theory, the idea of an arrest can be decided only if it is necessary to avoid a person will not appear before the Chamber or will create problems for the investigations or will be threatening witnesses and so on,” he explained.
“So, the Chamber has to check that these conditions are eventually can be mitigated by other measures and for example, to be in a specific area without possibilities that will go beyond it,” he added.
The ICC judges, he said, must check these conditions to see if there is a possibility to order an interim release.
“If not, they can deny the request… subject to their decision,” the ICC spokesman stressed.
Legal experts have noted that the ICC has never granted an interim release for any suspects of crimes against humanity.
PH cooperation
In the same interview, El Abdallah also thanked the Philippine authorities for its cooperation in bringing the former president before the ICC, and stressed the jurisdiction of the international court based on a “legal framework”.
“We are grateful for the cooperation of the Philippine authorities and we think this is showing their commitment to the international accountability mechanisms. This is important for us,” he said.
“There is a legal framework that is important. And according to this legal framework, it is true that the Philippines has withdrawn from the ICC Rome Statute but the courts retained jurisdiction over the crimes that allegedly were committed during the period when Philippines was still state party and this is the legal framework that gives the ICC the authority,” he added.
In its July 2021 ruling, the High Court ruled that the ICC has jurisdiction on crimes committed from when Duterte was still Davao City mayor until March 2019, when the country’s withdrawal from the Rome Statute took effect.
“Withdrawing from the Rome Statute does not discharge a state party from the obligations it has incurred as a member. Consequently, liability for the alleged summary killings and other atrocities committed in the course of the war on drugs is not nullified or negated here,” the ruling read.
Duterte’s well-being
Meanwhile, the ICC spokesman also assured that “the Court takes own necessary and possible measures to protect the well-being and health of Mr. Duterte and all other detainees” while they are in ICC custody.
El Abdallah, however, refused to detail the former president’s health condition.
“I’m leaving the private aspect of Mr. Duterte and any other detainees at ICC, we cant discuss that,” he stressed.
The former president, who’s turning 80 years old on March 28, was arrested last March 11 at the Ninoy Aquino International Airport (NAIA) Terminal 3 before being sent to The Hague, Netherlands to face the crimes against humanity of murder charges.
This is in connection with his administration’s bloody so-called war on drugs that killed more than 6,000 Filipinos, government records showed. This number is being refuted by various human rights groups, insisting that extrajudicial and vigilante-style killings under the drug war have killed more than 30,000 mostly poor Filipinos.