(UPDATE) FORMER president Rodrigo Duterte’s request to be transferred to a third country while facing trial at the International Criminal Court (ICC) is supported by legal precedent and established international rules, an international law expert and human rights lawyer said Monday.
In an interview with The Manila Times, Arnedo S. Valera said that under Rule 119 of the ICC’s Rules of Procedure and Evidence, a detainee may petition for interim release or relocation to another country, provided the request is grounded on specific humanitarian, medical, or security concerns and does not compromise the integrity of the trial.
“Duterte has the right to request a transfer. The ICC has affirmed this in previous cases, such as Prosecutor v. Jean-Pierre Bemba Gombo,” said Valera, who also heads the Global Migrant Heritage Foundation and has practiced immigration and human rights law in the United States for over three decades.
Bemba, a Congolese leader, was granted interim release by the ICC during trial, setting a precedent for similar humanitarian petitions, Valera said.
Other nations warned
But the pro-democracy coalition 1Sambayan said over the weekend that the bid for Duterte’s interim release was a “profound insult” to the victims of human rights violations and a “blatant attempt to subvert justice.”
In a statement, 1Sambayan urged the ICC to reject Duterte’s maneuver and warned that “any nation considering hosting Duterte under interim release must seriously consider the implications of such a decision.”
“Granting refuge to a figure accused of such grave crimes would not only undermine the integrity of the ICC process, but would also send a dangerous message to other potential perpetrators of human rights abuses worldwide: that impunity is attainable,” the group said.
The coalition said Duterte’s alleged crimes against humanity stemming from his bloody war on drugs are supported by documented evidence of systematic violence, extrajudicial killings, and suppression of dissent.
These are not mere political accusations, they said, but part of a case that deserves full and unhindered prosecution.
The group also warned that releasing Duterte, even temporarily, could pose a serious threat to witnesses and victims’ families who are cooperating with the ICC, as he may use the opportunity to incite retaliation against them.
Humanitarian factors
But Valera said that while Duterte has not been convicted, provisions under Article 103(1)(a) of the Rome Statute and prior rulings allow for provisional measures, especially when medical or humanitarian factors are present.
He also cited the court’s temporary release of Laurent Gbagbo, former Ivorian president, due to his age and health, and the International Criminal Tribunal for the former release of Serbian politician Vojislav Šešelj, who had metastatic cancer.
“These cases set a favorable precedent supporting Duterte’s appeal to be moved to a neutral state for reasons related to health, age, and political safety,” he said.
The former Philippine president, who is reportedly suffering from chronic neuromuscular disease and is now 80, may invoke these grounds while under pre-trial detention. Rule 119 would then allow the court to consider a temporary transfer under strict oversight.
Valera said any such transfer must be approved by the court and be based on the guarantee of continued cooperation by the receiving state.
“This would not constitute a breach of the Rome Statute or of cooperation agreements, as long as the ICC retains jurisdiction,” he added.
He cited Article 93 of the Rome Statute and Rule 191 of the ICC’s procedural rules as legal bases that permit flexibility for logistical arrangements that do not undermine the proceedings.
On the issue of political persecution, Valera said the ICC allows defendants to raise credible concerns if political threats come from their home state or hostile factions.
“The Rome Statute does not prohibit invoking political targeting as part of a humanitarian or relocation plea,” he said, pointing to concerns raised by the African Union in the Al Bashir case.
Valera also addressed the legal tensions regarding Duterte’s former status as head of state.
While Article 27 of the Rome Statute removes immunity in ICC proceedings, customary international law may still recognize certain protections in contexts outside the court.
“This strengthens Duterte’s claim to fair treatment and procedural safeguards, especially since the Philippines is no longer a state party to the Rome Statute,” Valera said.
Ultimately, Valera argued that allowing a conditional, medically justified transfer to a third country does not weaken the pursuit of justice but reaffirms the principles of due process, state dignity, and humane treatment.
“The ICC must balance accountability with humanity. A well-regulated transfer can uphold both legal integrity and human rights,” he said.
Duterte’s case stemmed from allegations of crimes against humanity linked to his bloody war on drugs during his presidency (2016–2022).
The ICC issued an arrest warrant in March 2025, and Duterte was apprehended upon arrival in Manila.
In a 16-page submission to the ICC on June 12, Duterte’s defense team argued that he does not pose a flight risk, will not obstruct court proceedings, and is unlikely to commit further crimes.
They emphasized his advanced age and health concerns as compelling humanitarian reasons for release.
“Mr. Duterte is not a flight risk, and custody is not necessary to ensure his appearance before the court,” the filing stated.
The defense revealed that an unnamed government has agreed to host Duterte and enforce any conditions imposed by the ICC.
The prosecution has reportedly not opposed the request, provided strict terms are met, including restrictions on travel and public communication.
The ICC’s Pre-Trial Chamber I, presided over by Judge Iulia Antonella Motoc, will now decide whether to grant interim release.
The defense has requested an expedited review, citing Duterte’s deteriorating health.
The Office of the ICC Prosecutor confirmed it does not oppose the request “on the understanding that the terms and conditions set out in Annex A to this filing would be met,” but it has yet to formally submit its comment to the ICC.
Among the conditions reportedly being negotiated are restrictions on Duterte’s communications.
Butuyan said the former president may be barred from using the internet, mobile phones, or speaking with anyone outside his immediate family while released.
The Netherlands’ neighbors
Meanwhile, international law expert Joel Butuyan, one of the five lawyers accredited by the ICC, said in a separate interview that a country neighboring the Netherlands and party to the Rome Statute may host Duterte if the tribunal grants his request for interim release.
“My suspicion is that the countries that are nearby — adjacent to or sharing a border with the Netherlands — are the ones likely to agree to host Duterte,” Butuyan said in a radio interview.
“The country that agrees to host him must be a member of the ICC. It must comply with the court’s orders. As it stands, the prosecutors will only agree if the conditions they specified are met. They haven’t agreed yet,” he added.
