Former president Rodrigo Duterte may serve his sentence in The Hague, Netherlands if he is found guilty of crimes against humanity, despite the International Criminal Court (ICC) allowing a convicted person to serve jail time in their home country.

According to ICC-accredited lawyer Joel Butuyan, only state parties to the Rome Statute, the treaty that established the ICC, are authorized to allow a convict of their nationality to serve their sentence within their state.

And because the Philippines is no longer a member of the ICC, this will not apply to Duterte’s case if he is found guilty of the charges.

“In the ICC, if the conviction is appealed and affirmed, the convict will be incarcerated in the detention facility of a member country of the ICC,” he said in an interview. “The ICC is going to have a contract with one of the ICC member countries to take the convict in its detention facility.”

The Philippines officially withdrew from the Rome Statute on March 17, 2019, pursuant to Duterte’s order after learning that the ICC launched a preliminary investigation into his brutal anti-drug campaign.

At present, the Rome Statute has 125 state parties, 19 of which are from the Asia-Pacific region, including Japan, Korea, Cambodia, and Timor Leste, among others.

The African States account for the largest bloc, with 33 countries, followed by Latin American and Caribbean States with 28.

Western European and other countries comprise 25, while Eastern Europe makes up 20.

Unlike in the Philippines, which prohibits the prosecution from appealing the judgment of acquittal, the ICC will not immediately release Duterte in case he is acquitted of the charges, pending an appeal from the prosecution.

“In fact, one difference in the ICC is that even if he is acquitted, the prosecution has the right to appeal, which is different from ours,” Butuyan explained.

According to Butuyan, who is one of the five Filipino lawyers accredited by the ICC, the length of Duterte’s trial will depend on their defense.

Duterte made his first appearance before the judges of the ICC on March 14 following his arrest in Manila on March 11 for crimes against humanity related to his brutal war on drugs.

He will remain in the ICC Detention Center while awaiting the confirmation of the charges, which is scheduled for September 23.

Rise Up for Life and for Rights, a group advocating for justice on behalf of the families of drug war victims, had urged the ICC to deny a potential petition for the interim release of Duterte. The coalition believes that keeping Duterte in its custody is necessary to ensure that he will not pose a danger or threat to the victims and witnesses of his drug war.

Butuyan, however, expressed reservations on the possible granting of interim release for Duterte, citing the case of a “leader of Kenya,” who was also allowed by the ICC to return to his country while the trial was ongoing.

“He was allowed to go home. But what happened was when he got home and then went back, the witnesses started dying. So I think that case would be in the minds of the judges in the Duterte case.”

Duterte, the first Asian former head of state to appear before the ICC, is facing charges of crimes against humanity over the massive killings at the height of his war on drugs.

The ICC has asserted that it still retains jurisdiction over any potential crimes against humanity that occurred before the country’s withdrawal from the Rome Statute.

The government logged more than 7,000 deaths related to Duterte’s drug war, although local and international human rights organizations estimated that the figures were a far cry from the actual death toll, probably exceeding 30,000, affecting predominantly low-income families and communities.

The ICC has asserted that it still retains jurisdiction over any potential crimes against humanity that occurred before the country’s withdrawal from the Rome Statute.

The government logged more than 7,000 deaths related to Duterte’s drug war although local and international human rights organizations estimated that the figures were a far cry from the actual death toll, probably exceeding 30,000, affecting predominantly low-income families and communities.