The International Criminal Court (ICC) has rejected former president Rodrigo Duterte’s appeal for temporary liberty. The 80-year-old former prosecutor and mayor, who gained a reputation as “The Punisher” for his iron-fisted anticrime policy, will remain in detention in The Hague where he will spend Christmas thousands of kilometers from his home in Davao City.

The five members of the court’s Appeals Chamber unanimously ruled on Friday, Nov. 28, to affirm the decision by the Pre-Trial Chamber 1 (PTC1) to deny his request for interim release after his arrest in March for the crime against humanity of murder in connection with the killings in his war on drugs.

Presiding Judge Luz del Carmen Ibáñez Carranza read a summary of the 40-page decision, which dismissed all three grounds raised by the defense while his lead lawyer, Nicholas Kaufman, listened with helpless disappointment etched on his face.

Duterte waived his right to be present either physically in the courtroom or virtually online.

Detention ‘necessary’

His lawyers first sought his temporary freedom as early as June 12. In a response on June 23, Deputy Prosecutor Mame Mandiaye Niang opposed the request, arguing that his continued detention was necessary. 

Niang said Duterte was a flight risk, could potentially obstruct or endanger ongoing investigations and witnesses, and could commit related crimes. He cited the ex-president’s remarks about “doubling” the killings if he returned to office.

In July, the defense asked for a deferment of any ruling on the request. On Aug. 19, Duterte’s lawyers told the pretrial chamber they were renewing his request for interim release.

The PTC1 released its decision on Sept. 26.

In its Oct. 14 appeal, the defense argued that Duterte was not a flight risk and that the PTC1 erred in finding that he would endanger witnesses, obstruct the ICC proceedings and commit more crimes. These were all hypothetical, the lawyers said.

They said the pretrial chamber also ignored supposed guarantees from an unnamed third-party state that would host him and monitor his movements while on provisional release, including with the use of an electronic bracelet.

They said the chamber refused to consider releasing the aging and ailing former president on humanitarian grounds despite his presumed innocence at this point.

Rejection of appeal

As Carranza read the decision knocking down the defense’s arguments one by one, it became clear that the appeal would be rejected.

The Appeals Chamber said the defense failed to make its case to overturn PTC1’s ruling against Duterte’s interim release.

“In the present case, having rejected the three grounds of appeal presented by the defense in the appeal brief, the Appeals Chamber unanimously confirms the impugned decision,” Carranza said during Friday’s session, which was livestreamed on Facebook, YouTube and the ICC website.

The rejection of Duterte’s release, despite assurances from his lawyers that he would show up when summoned at any time for any hearing or court processes, centered around Article 58 of the Rome Statute, the treaty that established the ICC.

The key requirements under this provision include “reasonable grounds to believe” that the suspect had committed the crime he had been charged with and the necessity of his arrest to ensure his appearance before the court, to ensure he does not obstruct or endanger investigations or court proceedings and to prevent him from committing the same or related crime.

Flight risk

The Appeals Chamber upheld the PTC1’s assessment that he was a flight risk and that none of the arguments or assurances for his temporary freedom mitigated that.

It agreed with the PTC1 that Duterte, as a former president and reelected mayor of Davao, continues to wield widespread influence and has the financial means plus a network of supporters in the Philippines and overseas who could help him abscond.

In addition, the gravity of the crime and the possible lengthy prison time in case of conviction, “are factors that may increase an incentive for a person to abscond,” Carranza said, reading from the decision summary.

‘Cognitive impairment’

The Appeals Chamber noted that the defense cited Duterte’s supposed “cognitive impairment and physical infirmity” in seeking release on humanitarian grounds.

The PTC1, however, did not refuse to address the issue. Instead, it saw that the defense did not “sufficiently” make its case, the Appeals Chamber said.

“The Appeals Chamber considers that it is not apparent from the Pre-Trial Chamber’s assessment that it was unreasonable,” it said.

It pointed out that the risks under Article 58 were not mitigated by Duterte’s purported condition or could not be mitigated by any condition that may be imposed upon his release.

In the ruling itself, the appellate chamber said the defense failed to specify “how the Pre-Trial Chamber would have ‘breached its positive obligation to ensure that Mr Duterte’s pre-trial detention is neither disproportionate nor inconsistent with the presumption of innocence.”

In various YouTube videos, some of Duterte’s supporters who were waiting for the ruling as they gathered outside the ICC were shown in tears, several hugging a life-size image of the ex-president.

Television reports said the former president’s grandson, Rep. Omar Duterte, who is a son of Rep. Paolo Duterte, the former president’s eldest child, was present.

Duterte’s former spokesperson, Harry Roque, was seen taking videos of the gathering, which started like a picnic with food spread out on a makeshift table.

Sara’s statement

In Manila, the Office of Vice President Sara Duterte released a statement on behalf of the family, accepting the ruling “with peaceful hearts.”

“We will continue to work with the defense team on the case and will keep supporting former President Rodrigo Duterte with our daily conversations. We thank everyone who prayed with us today,” the statement said.

Human rights groups, members of the clergy and lawyers organized “watch parties” for families of the drug war victims.

The announcement of the rejection of Duterte’s interim release ended the suspense. The attendees broke out in cheers as it was announced, hugging each other.

Malacañang press officer, Presidential Communications Undersecretary Claire Castro, gave a brief comment. “The International Criminal Court has already made its decision, and the Palace respects it,” she said.

Drug war victims

The National Union of Peoples’ Lawyers (NUPL), counsel for the drug war victims, said the decision had strong factual and legal merit.

“Duterte in detention is crucial for victims and witnesses to feel safe coming forward. By and large, it is an assurance that he cannot simply intimidate persons, interfere with the evidence, or disrupt proceedings,” it said.

The group said that the decision was also “providential for him,” citing the “earnestness” of the ICC and the Netherlands to provide any necessary proper medical care for the ex-president while in detention.

Duterte is being held at the ICC Detention Center within the Scheveningen Dutch prison complex close to the tribunal’s offices.

NUPL said that both the defense and the prosecution could now prepare for two other contentious issues.

One raised with the Appeals Chamber is the question of whether the ICC has jurisdiction over Duterte considering that the Philippines, on his order, had withdrawn from the tribunal in March 2019.

The other issue, which is pending in the PTC1, concerns Duterte’s fitness to stand trial due to his age and ailments.

These matters would likely be tackled next year as the ICC takes its Winter break from Dec. 12 to Jan. 5, 2026.

Read more: ICC charges Rodrigo Duterte as ‘indirect co-perpetrator’ of crime against humanity