The possibility of former president Rodrigo Duterte returning to the Philippines pending confirmation of his charges scheduled for 23 September in the International Criminal Court (ICC), where he is currently detained, is highly unlikely, according to former Supreme Court Associate Justice Antonio Carpio Tuesday.

Unlike the late Kenya lawyer Paul Gicheru, who was also charged before the ICC but was granted provisional release, Carpio believes that the ICC might be more strict with Duterte’s case, considering that he did not voluntarily surrender and is considered a flight risk.

“All those involuntarily brought against their will to the ICC were never given any interim relief. They were not allowed bail. So, I think that will apply to former president Duterte,” Carpio said in an interview.

He added, “I agree with VP Sara that it’s unlikely that former president Duterte can come home until the case is over… If he is not acquitted, then he cannot come home anymore.”

In January 2021, the ICC granted Gicheru's request for interim release, which was not opposed by the prosecution, although there were conditions restricting his liberty. In approving the petition, the ICC Pre-Trial Chamber A considered Gicheru's voluntary surrender, demonstrating his concrete willingness to subject himself to the jurisdiction of the international tribunal in relation to the allegations against him.

The Kenyan lawyer was accused of tampering with witnesses in favor of President William Ruto over post-election violence in Kenya in 2007 and 2008. On 14 October 2022, the ICC terminated the case against him following his death two weeks earlier.

Duterte, who is currently in ICC’s custody, headquartered in The Hague, Netherlands, was arrested in Manila on 11 March upon his return from Hong Kong for alleged crimes against humanity.

Three days thereafter, he made his first appearance before the ICC judges. He will remain in detention while awaiting the confirmation of the charges in September.

Average trial

Human rights lawyer Kristina Conti, assistant to the counsel for the ICC, had projected that Duterte’s trial could take considerable time, as the average duration of trials at the international tribunal is typically eight to 10 years.

However, Carpio posits that Duterte’s trial could be shorter, taking into consideration his past admissions of being solely responsible for the massive summary killings in his brutal drug war, which would expedite the collation of evidence against him.

“I think it would be shorter for former president Duterte because he has only one charge, and there are many witnesses already, and he has admissions,” Caripio averred. “And these admissions are admissible, they will be considered by the court.”

Carpio was referring to Duterte’s public pronouncement of having a death squad comprised of “gangsters” who killed criminals and drug users during his decade-long stint as Davao City mayor.

The former president also admitted under oath that he takes “full, legal responsibility” for the killings and that police officers must be spared from liability.

“So, he is bound by that,” Carpio stated.

As for the irregularity or illegality of Duterte’s arrest, Carpio stressed that the ICC will not engage in legal discussions with the Philippine authorities.

“As far as the ICC is concerned, the surrender of Duterte is final, and they will not inquire how he was brought before the tribunal…They will not be responsible for that. Once you are with the tribunal, then they will proceed to conduct the trial,” he explained.

Impeached Vice President Sara Duterte, who is currently in The Hague to help form the legal team of her father, has criticized his arrest, deeming it “illegal” and “kidnapping,” citing the alleged lack of due process, arrest warrant, and any legal basis under Philippine laws.