Duterte’s Bid for Transfer to a Third Country: A Legal Analysis
By Atty. Arnedo S. Valera
International Law Column | For Publication | June 2025
As legal observers follow the developments surrounding former Philippine President Rodrigo Roa Duterte and the International Criminal Court (ICC), a pivotal question arises: Can Duterte lawfully request to be transferred to a third, unnamed country pending trial, based on humanitarian, political, or jurisdictional grounds?
In this article, we explore the matter through a Q & A format, with scholarly citations to international case law, treaties, and principles—offering a favorable view of such a legal course.
1. On Legal Grounds and Precedent
Q: Is there any legal basis under international law or ICC procedures for a detainee to request transfer to an unnamed third country while proceedings are ongoing?
A: Yes. Rule 119 of the ICC’s Rules of Procedure and Evidence allows an individual subject to ICC proceedings to request interim release or transfer to another state on specific grounds. The Appeals Chamber in Prosecutor v. Jean-Pierre Bemba Gombo (ICC-01/05-01/08 OA2, 2009) affirmed that a detainee has a right to request interim release or transfer, provided it does not compromise trial integrity or safety concerns.
Moreover, Article 103(1)(a) of the Rome Statute permits a convicted person to serve their sentence in a state designated by the Court, and although Duterte has not been convicted, the jurisprudence of the ICC allows for analogical interpretation where provisional measures may be justified on humanitarian grounds or medical needs.
Q: Has there been any precedent of an ICC detainee being transferred to another country for humanitarian or political reasons before trial?
A: While rare, humanitarian-based relocations or adjusted detentions have precedent. In The Prosecutor v. Laurent Gbagbo (ICC-02/11-01/11), the Chamber acknowledged potential for provisional release due to age and medical conditions. Similarly, in the ICTY (a predecessor tribunal to the ICC), in Prosecutor v. Šešelj, the Tribunal temporarily released the accused to Serbia for health reasons.
These cases set favorable precedent supporting Duterte’s right to request transfer for health, age, and security concerns, particularly in politically charged environments.
Q: Would allowing Duterte to transfer to a third, unnamed country constitute a breach of the Rome Statute or cooperation agreements with the ICC?
A: No, provided the transfer is duly approved by the Court and governed by guarantees of continued cooperation. Article 93 of the Rome Statute encourages “cooperation for purposes of facilitating the proceedings,” and Rule 191 of the Rules of Procedure and Evidence allows for consultation and consent of both the ICC and cooperating states.
As long as the third country guarantees availability of Duterte to the Court, no breach occurs. This aligns with state sovereignty, as enshrined in Article 2(1) of the UN Charter, and balances cooperation with respect for national autonomy.
2. On Humanitarian or Political Claims
Q: How does the ICC typically weigh humanitarian considerations, such as security or health risks, against concerns like flight risk or obstruction of justice?
A: The Court undertakes a case-by-case balancing test. In Prosecutor v. Germain Katanga (ICC-01/04-01/07), the Court emphasized that humanitarian concerns—such as deteriorating health or detention conditions—must be weighed against the risk of absconding or witness interference.
For Duterte, at over 79 years of age with a reported neurological condition, the ICC must take into account Principle 9 of the UN Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment (1988), which mandates consideration of medical and humanitarian factors in custody decisions.
Q: Can a defendant invoke political persecution to justify being held in a different jurisdiction while on trial in The Hague?
A: Yes. While the ICC is intended to be independent of political influence, the Rome Statute does not prohibit a motion based on credible political persecution, especially when threats originate from within the detainee’s home country or from hostile political factions.
In Prosecutor v. Al Bashir, although Sudan’s cooperation was contentious, the African Union consistently raised concerns of political targeting by powerful states. This underscores the politicization risk, particularly when a former head of state from a non-state party (such as the Philippines post-2019) is under investigation.
3. On Implications for the Philippines
Q: If the ICC allows Duterte’s transfer to a third country, what are the implications for the Philippines’ obligations under the Rome Statute, even though it has withdrawn?
A: The Philippines is under no binding obligation to cooperate post-withdrawal (March 17, 2019), except for proceedings that began prior to that date (Rome Statute, Art. 127(2)). Duterte’s possible transfer does not alter the Philippines' current legal status, nor does it increase or reduce its cooperation burden.
Any obligations now rest entirely with the state where Duterte may be present, and any cooperation would be voluntary or based on bilateral arrangements, not ICC compulsion.
Q: Does such a transfer weaken the message of accountability the ICC is trying to send, particularly in cases involving former heads of state?
A: No. A transfer based on legitimate humanitarian or security grounds—and not acquittal or dismissal—does not negate accountability. Instead, it demonstrates the Court’s maturity and respect for legal proportionality, as seen in its handling of Bemba and Gbagbo, both of whom were initially detained but later conditionally released pending trial outcomes.
4. On Cooperation and International Custody
Q: Would a transfer of custody require approval from the host country where he is currently detained?
A: Absolutely. Under Article 89(1) of the Rome Statute, surrender or transfer requires the consent of the state where the individual is located. Without the consent of the receiving and current host country, the ICC cannot unilaterally implement a transfer.
In practice, a trilateral diplomatic understanding is required—between the ICC, the current state of custody (if any), and the proposed receiving third state.
Q: What kind of diplomatic arrangements or guarantees would be necessary for such a transfer to be legally acceptable?
A: The ICC typically demands binding assurances from the receiving state that the accused:
Will not abscond;
Will not obstruct justice;
Will be available for trial and hearings;
Will be protected from political reprisals or inhumane conditions.
These are similar to conditions in Prosecutor v. Lubanga and Katanga, where host states offered written assurances, and the Court evaluated their credibility before allowing transfers or release.
5. On Duterte’s Status
Q: Is Duterte considered under provisional detention, full custody, or pre-trial detention, and does this status affect his ability to request release or transfer?
A: As of writing, Duterte is not yet in ICC custody, meaning discussions of detention status are premature. However, if he were arrested under a warrant, he would enter pre-trial detention, where Rule 119 applies, allowing requests for interim release or conditional relocation under strict ICC oversight.
Q: Does his status as a former head of state offer any special protections or immunities under ICC practice?
A: While Article 27 of the Rome Statute negates head-of-state immunity before the Court, customary international law, as reaffirmed in Arrest Warrant Case (DRC v. Belgium, ICJ, 2002), acknowledges residual immunities for former heads of state in non-ICC contexts.
This legal tension strengthens Duterte’s claim to due process, state dignity, and non-degrading treatment, particularly outside Philippine jurisdiction.
A Reasonable and Legal Path Forward
The ICC has both the authority and obligation to weigh humanitarian, political, and legal factors in its handling of high-profile detainees. In Duterte’s case, a carefully conditioned transfer to a neutral third country—on medical and political safety grounds—does not undermine justice, but rather upholds fairness, dignity, and international legal integrity.
This approach reflects not only the evolving jurisprudence of international criminal law, but also the broader principle that accountability must never come at the expense of humanity.
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