‘WON’T BE HOME FOR CHRISTMAS’: Ex‑President Duterte denied interim release

By Joseph Bernard A. Marzan

THE HAGUE, Netherlands — Bring him home? No, you can’t.

This was the International Criminal Court (ICC) Appeals Chamber’s judgment, unanimously denying former President Rodrigo Roa Duterte’s request for interim release, affirming that his continued detention remains necessary under Article 58(1)(b) of the Rome Statute.

The ruling was issued in a 40-page public redacted judgment dated Nov. 28, 2025, which confirmed the Pre-Trial Chamber’s Sept. 26 decision rejecting Duterte’s urgent and renewed bids for interim release.

This was read out by the five-member chamber, presided over by Peruvian Judge Luz del Carmen Ibáñez Carranza.

“The Appeals Chamber notes that the Pre-Trial Chamber reached its conclusions in relation to the risks enumerated in article 58(1)(b) of the [Rome] Statute on the basis of a comprehensive assessment of the information before it,” the judgment read.

The Appeals Chamber ordered Duterte’s defense team to file a public redacted version of its appeal notice by Dec. 3 at 4 p.m. It also directed the ICC registrar to reclassify two filings as public.

The Duterte camp (or the “defense”) appealed to the appellate chamber with three grounds against the decision rendered by Pre-Trial Chamber I, alleging that:

1. The Pre-Trial Chamber allegedly erred in finding that Duterte posed risks under Article 58(1)(b) of the Rome Statute;
2. The chamber allegedly erred in rejecting state guarantees offered for his release; and
3. The chamber allegedly failed to consider humanitarian grounds.

Under Article 60(2) of the Rome Statute, for the ICC to grant interim release to a person subjected to a warrant of arrest, the conditions set in Article 58(1), which provides for the issuance of a warrant of arrest, should not be satisfied.

The judgment of the Appeals Chamber emphasized Article 58(1)(b), which provides for the risks where the arrest of a person appears necessary:
(a) To ensure the person’s appearance at trial;
(b) To ensure that the person does not obstruct or endanger the investigation or the court proceedings; or
(c) Where applicable, to prevent the person from continuing with the commission of that crime or a related crime which is within the jurisdiction of the court and which arises out of the same circumstances.

The chamber also reiterated the standard to be applied in detention, as provided in previous ICC cases: that the detention must “appear necessary,” based on the possibility — not the inevitability — of a future occurrence of the risks under Article 58(1)(b).

Because of this, on the first ground of appeal, the appellate chamber said the Pre-Trial Chamber was correct in applying the standard and appreciating the evidence presented before them.

They also rejected the Duterte team’s argument that the lower chamber misinterpreted the standard provided in the Rome Statute and in previous judgments.

“[T]he Appeals Chamber is not persuaded by the Defence’s argument that the Pre-Trial Chamber interpreted the relevant legal standard to mean that ‘any suggestion, however unsubstantiated, may give rise to the ‘possibility’ of risk,’” the Appeals Chamber said in its ruling.

“[T]he Pre-Trial Chamber articulated the factors it took into account when carrying out its assessment of risks, referring to specific items of evidence which, in its view, established the existence of risks such that continued detention of Mr. Duterte ‘appeared necessary’ under Article 58(1)(b) of the [Rome] Statute,” they added.

Lawyer, law professor, and Daily Guardian columnist Anfred Panes explained to Daily Guardian that the standard relied on by the Pre-Trial Chamber was based on risks that a suspect may flee, obstruct justice, or commit further crimes, which are determined based on available evidence.

“In ICC practice, when determining if detention is necessary, the chamber must assess whether there is a ‘possibility,’ not an ‘inevitability,’ that risks such as flight, obstruction of justice, or the commission of further crimes will occur. This standard involves an element of prediction regarding future events. It does not require the court to be certain that the suspect will abscond or interfere. Rather, it requires a finding that these events are potential outcomes based on the available evidence,” Panes said.

“In this specific case, the Defence [Duterte’s camp] argued that the Pre-Trial Chamber relied on ‘hypothetical’ risks. However, the Appeals Chamber clarified that assessing risk inherently involves predicting future conduct. The standard is correctly applied when a chamber analyzes specific factors such as political connections or conduct to determine if a future risk is a realistic possibility, even if it is not guaranteed to happen,” he added.

The appellate chamber gave its observations as to how Pre-Trial Chamber I appreciated the five pieces of evidence against Duterte, which included a document where the former president’s close associates allegedly told individuals to stay loyal to him.

The other four pieces included a book (title redacted), two reports from non-governmental organizations, and a press article.

They also referenced statements given by two persons whose names were redacted in the publicized judgment, as well as the seriousness of the charges laid against Duterte and the length of sentence he may receive.

“[T]he Appeals Chamber considers that the Defence has failed to demonstrate an error in the Pre-Trial Chamber’s assessment and weighing of the evidence before it in the context of its consideration of the risk under Article 58(1)(b)(ii) of the Statute,” they said.

The chamber also highlighted other factors the Pre-Trial Chamber considered in assessing the risk under Article 58(1)(b), including Duterte’s “network of supporters,” his position as former president, and his election as mayor of Davao City in the 2025 elections.

Panes explained that the “network of support” may refer to a suspect’s access to political contacts, financial means, or associates who could assist them in absconding or obstructing justice.

In this case against Duterte, he said, the ICC referred to necessary political contacts and family members in high office.

Duterte’s daughter, Sara Duterte-Carpio, is the incumbent vice president, while his son Paolo, grandson Omar, and nephew Harold all serve in the House of Representatives.

His close confidants and later appointees, Christopher Lawrence Go and Ronald Dela Rosa, have both served as senators since 2019.

“The mere existence of networks such as a political party or allies in positions of power is a relevant factor because it objectively provides the means to evade the court, regardless of whether there is specific evidence that the suspect intends to use them,” he said.

“In this case, the court cited former President Duterte’s ‘necessary political contacts’ and the ‘network of support,’ which includes family members in high office. The legal evaluation focuses on the capability this network provides.”

“The court considers that access to international contacts or a supportive political base increases the feasibility of flight, making continued detention appear necessary to ensure the suspect’s appearance at trial, independent of their stated willingness to cooperate,” he added.

The lawyer also emphasized that Duterte’s re-election as Davao City mayor could cause him to re-commit the same crimes brought before the international court.

“Holding public office is a significant factor in detention decisions because it can provide both the influence to obstruct proceedings and the means to commit further crimes. In this case, the Appeals Chamber cited former President Duterte’s re-election as mayor of Davao City as evidence that he retains strong support and influence,” Panes said.

“The court noted that returning to the specific office he held when the alleged crimes were committed creates a risk. The legal concern is that if a suspect returns to a position of authority, they would be placed in the very position that allowed them to commit the crimes initially charged. This is not just about flight risk. It is about the risk of re-offending or using official power to interfere with the investigation. Thus, continuing to hold or winning public office can militate against release rather than for it,” he added.

STATE GUARANTEES

The Appeals Chamber also rejected the Defence’s argument that the Pre-Trial Chamber failed to address the suggested conditions of release and state guarantees, failed to assess whether they could mitigate risks under Article 58(1)(b), and relied on irrelevant considerations.

They found that the Pre-Trial Chamber did consider the proposed conditions and guarantees, stating that it evaluated them “both individually and in their totality against the backdrop of the identified risks.”

“[T]he Appeals Chamber is of the view that, contrary to the Defence’s submission, the Pre-Trial Chamber did not fail to consider the suggested terms and conditions ‘both individually and in their totality against the backdrop of the identified risks.’ Rather, the Pre-Trial Chamber did examine the conditions and guarantees before it,” they said.

Panes said Duterte’s team failed to provide specific details on how the relevant authorities of the state offering to accept him would guarantee his continued participation in the case.

“When a state offers guarantees to secure a suspect’s interim release, the ICC requires specific details on how those guarantees will be implemented and the practical mechanisms for enforcement. In this case, the Pre-Trial Chamber found the proposed guarantees ‘lacked detail,’ specifically regarding how the relevant authorities would actually implement the necessary conditions to ensure his presence and prevent interference with proceedings,” he said.

“The court looks for a concrete plan. For instance, if a condition involves restricting movement or communications, the state must demonstrate the specific operational measures it will take to monitor these restrictions effectively. Without these practical details, the court cannot assess whether the state is truly capable of mitigating the identified risks, leading to the rejection of the request,” he added.

HUMANITARIAN CONDITIONS

In the third ground for the appeal, where Duterte’s camp said the Pre-Trial Chamber erred in refusing to consider humanitarian grounds, the Appeals Chamber stated that the lower chamber did consider this.

“The Impugned [Sept. 26 Pre-Trial Chamber] Decision, contrary to the Defence’s contention, clearly did consider whether the information on Mr. Duterte’s purported health situation before it could mitigate the risks identified under Article 58(1)(b) of the [Rome] Statute,” the judgment said.

The upper chamber also said that while the Pre-Trial Chamber indicated it would not engage with the question of whether a suspect can be released on humanitarian grounds, it did give reasons why the humanitarian grounds raised by the Defence were not sufficiently set out.

“[T]he Appeals Chamber notes that the Pre-Trial Chamber did not ‘refuse’ to address the question of interim release on humanitarian grounds. Rather, while indicating that it would not engage with the question of whether a suspect can be released on humanitarian grounds only as a matter of principle, the Pre-Trial Chamber proceeded to give the reasons for which, in its view, the humanitarian grounds advanced by the Defence were not ‘sufficiently set out in the case at hand,’” they said.

In the Sept. 26 decision, the Pre-Trial Chamber said Duterte’s fitness to stand trial was a “factually and legally distinct” issue from the question of whether he should be granted interim release.

The Pre-Trial Chamber said the reports submitted by the former president’s team, which allege his physical condition and cognitive impairment, did not indicate how these negated the risks under Article 58(1)(b).

While Duterte’s defense team relied on previous appellate judgments that granted interim release on humanitarian grounds, those were not sufficient to establish that such release was ICC practice.

“The Appeals Chamber considers that the Pre-Trial Chamber was correct in finding, when examining the decisions referred to by the Defence concerning a supposed ‘prior court practice of interim release on humanitarian grounds,’ that those decisions fall short of illustrating a ‘practice’ of interim release on humanitarian grounds,” they said.

“Indeed, the decisions at issue dealt with requests for temporary transfers outside of the detention center for specific purposes not lasting more than 24 hours and with a court representative accompanying the detainee concerned at all times,” they added.

They also stated that the defense team could not rely on a decision by the International Criminal Tribunal for the former Yugoslavia, citing that the cases granting release on humanitarian grounds were based on specific provisions and conditions.

The Appeals Chamber also upheld that Pre-Trial Chambers have discretion in granting interim release on medical conditions, citing the case against Laurent Gbagbo of Côte d’Ivoire, but that in Duterte’s case, the denial of interim release was not unreasonable.

“The Appeals Chamber considers that it is not apparent from the Impugned Decision, or the arguments presented by the Defence, that the Pre-Trial Chamber’s assessment was unreasonable. In particular, the Pre-Trial Chamber found the existence of risks under Article 58(1)(b)(i) through (iii) of the Statute, which were not mitigated by Mr. Duterte’s purported condition and also could not be mitigated by any conditions imposed upon release,” they said.

“The Appeals Chamber thus considers that the Pre-Trial Chamber assessed the relevant information before it in light of the arguments made by the Defence and reached its conclusion on this basis. It follows from the above that the Defence has failed to demonstrate that the Pre-Trial Chamber’s assessment was unreasonable,” they added.

Panes said the standard of reasonableness that the upper chamber relied on made it difficult to overturn the lower chamber’s decision on appeal.

“The ‘reasonableness’ standard makes it quite difficult to overturn a Pre-Trial Chamber’s decision on appeal. Under this standard, the Appeals Chamber will not reverse a decision simply because it might have come to a different conclusion itself. Instead, it grants a ‘margin of deference’ to the lower chamber’s evaluation of the facts. To succeed, the Defence must show that the Pre-Trial Chamber’s conclusion was so unreasonable that it could not have been reached based on the evidence available. The Appeals Chamber will only intervene if there is a clear error where the findings are unsupported by the facts,” he explained.

“In this case, even if the Defence offers a plausible alternative interpretation of the evidence, the appeal will fail unless they demonstrate that the chamber’s interpretation was objectively unreasonable or ‘clearly erroneous,’” he added.