Rodrigo Duterte’s legal team appeals to ICC for 'immediate, unconditional release'
MANILA, Philippines — Former president Rodrigo Duterte’s legal team has filed an appeal with the International Criminal Court (ICC), urging the court to “order his immediate and unconditional release” and challenging its jurisdiction over him.
In a 21-page appeal brief uploaded on the ICC website on Friday, November 14, Duterte’s lawyers asked the Appeals Chamber to “reverse its impugned decision” and to declare that “there exists no legal basis for the continuation of International Criminal Court proceedings against Mr. Rodrigo Roa Duterte.”
The defense argued that the Pre-Trial Chamber I made errors in its previous ruling on the jurisdiction of the court.
While the Chamber agreed that Article 12(2) of the Rome Statute requires a state to be a party at the time the Court exercises jurisdiction, it nonetheless ruled that the ICC could still assert jurisdiction even after a state has withdrawn, citing Article 127(2) as lex specialis, or the more specific law taking precedence over general provisions.
"The Pre-Trial Chamber formulated a novel doctrine for extending the exercise of jurisdiction beyond the effective date of a State Party’s withdrawal," the defense said.
The legal team identified what it described as “three further errors of law and fact” in the ICC’s decision:
- A preliminary examination is a "matter under consideration."
- The reference to "the Court" in Article 127(2) includes the Office of the Prosecutor.
- The "object and purpose" of the Rome Statute permits the opening of an investigation even after the effective withdrawal of the Republic of the Philippines.
Duterte's defense team said this finding is an error of law because:
- The Pre-Trial Chamber did not explain in what way Article 127(2) constitutes lex specialis of Article 12.
- There was a lack of discernible intent for the application of lex specialis.
- There was misapplication of lex specialis particularly in the lack of normative conflict or absence of a need for clarification.
- There was misapplication of lex specialis regarding Part 2 of the Rome Statute.
According to Duterte’s team, the Pre-Trial Chamber’s classification of Article 127(2) as lex specialis allows the ICC to claim jurisdiction over alleged crimes even after a state has withdrawn from the Statute. They said this precedent is “unsupported by any authority” and “never before argued by the Prosecutor.”
The Philippines became a signatory to the Rome Statute on Nov. 1, 2011.
In February 2018, then ICC prosecutor Fatou Bensouda announced that her office would initiate a preliminary examination into the situation in the Philippines, particularly on killings related to Duterte's controversial anti-drug campaign.
This prompted then-president Duterte to announce the country’s withdrawal from the ICC, which took effect a year later. The country formally withdrew from the treaty effective March 17, 2019.
Despite the withdrawal, the Pre-Trial Chamber authorized the investigation on Sept. 15, 2021.
Duterte is currently detained at the Hague Penitentiary Institution since March 2025 while awaiting trial, facing charges related to 49 incidents of murder and attempted murder.
The confirmation of charges hearing against Duterte was initially scheduled for September 23. However, the hearing was postponed indefinitely after the defense team requested an adjournment, arguing that he was unfit to stand trial.
Duterte is facing three counts of crimes against humanity of murder over the brutal and deadly "war on drugs" during his presidency and his time as Davao City.
Despite the official police count of over 6,000 fatalities during Duterte’s nationwide campaign against illegal drugs from 2016 to 2019, human rights organizations estimate the true number of deaths may be as high as 30,000.
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