Why the ICC kept Duterte in detention

THE news from The Hague this Friday, Nov. 28, landed heavily in Mindanao: The International Criminal Court (ICC) Appeals Chamber has denied former President Rodrigo Duterte’s request for interim release, affirming his continued detention in Scheveningen.  

For many observers in the Philippines, accustomed to local jurisprudence where age and health are often tickets to temporary freedom, this ruling is perplexing. 

Why was the 80-year-old former President denied the same “humanitarian bail” often granted by Philippine courts?

To understand the decision, we must look under the hood of the Rome Statute, specifically the mechanisms that differ sharply from our domestic laws.

The ‘third rejection’

The “third rejection” commonly cited refers to the Appeals Chamber dismissing all three grounds of Duterte’s appeal. The defense argued that the lower court erred in assessing flight risk, ignored state guarantees, and failed to apply humanitarian considerations.  

The ICC judges, however, adhered strictly to Article 58(1)(b) of the Rome Statute. 

Unlike the Philippines’ discretionary approach to bail for non-capital offenses, the ICC requires detention if release obstructs the investigation.

  

The pillars of detention

Under the Rome Statute, interim release (what we call bail) is not a right if specific risks are present. The Court found that Duterte’s release posed risks in three key areas:  

Risk of Flight: Despite his health, the Court ruled that his "network of supporters" and financial resources provided the means to abscond.  

Obstructing Proceedings: The Court cited the risk of witness intimidation—a core concern given the nature of the “War on Drugs” charges.

Continuing Crimes: The Court found a risk that the accused could continue to instigate the crimes charged.  

Why ‘humanitarian grounds’ failed

In the Philippines, the Supreme Court’s ruling in Enrile v. Sandiganbayan popularized the idea that advanced age and poor health are sufficient grounds for bail.

The ICC operates differently. 

While Article 60 allows the Court to grant release, the Appeals Chamber clarified that humanitarian factors (age, health) do not automatically override the risks listed in Article 58. 

Essentially, if the risk of witness tampering or flight is high, no amount of medical necessity guarantees release unless the detention center itself cannot provide adequate care — which the ICC facilities in The Hague are equipped to do.

What happens next?

This ruling effectively closes the door on Duterte’s temporary freedom during the trial phase. 

The proceedings will now move toward the confirmation of charges and trial proper, with the former President appearing from the detention center.  

For legal observers in Cagayan de Oro, this serves as a stark lesson: The Rome Statute is designed with a “victim-centered” approach, prioritizing the security of proceedings and witnesses over the personal circumstances of the accused.