The International Criminal Court (ICC) has asked an unnamed country to confirm whether it is inclined to host detained former president Rodrigo Duterte in case the court grants him interim release pending confirmation of his charges.

The move follows the defense’s request to seek observations from the undisclosed state on the possibility of hosting Duterte should the ICC rule in favor of their petition to temporarily release the ex-leader, while the three counts of murder for crimes against humanity are still awaiting confirmation at the pre-trial hearing. 

The confirmation of charges was initially scheduled for 23 September, but this was postponed indefinitely following a petition by Duterte’s lawyer, Nicholas Kaufman, citing his client’s weakened condition.

The host country was only given 2 July to file its response based on the filing dated 18 June, but it was only made public on 23 September. 

“[T]he Chamber emphasises that the present order is issued for the purposes of considering all relevant submissions and observations prior to deciding on the interim release request and, as a consequence, neither this order nor any observations received shall be construed as prejudging any matter to be determined in the context of that decision,” the filing read. 

The ICC is mandated to solicit submissions from concerned parties on the conditional release of an accused, in this case, the host country and the state in which the court is based—The Netherlands. 

The three ICC Pre-Trial Chamber I judges required the potential host country to submit observations deemed relevant to the chamber’s decision on Duterte’s interim release bid. 

This includes its willingness to accept Duterte, its ability to comply and enforce any conditions that the ICC might potentially impose, such as restricting Duterte’s travel beyond territorial limits approved by the court, ensuring that he would not contact directly victims or witnesses, and facilitating his return to the Netherlands in case summoned by the court.

Duterte’s lawyer, Nicholas Kaufman, sought his client’s temporary release as early as 12 June, assuring that he is not a flight risk and will not reoffend against the crimes he is accused of. 

He recently renewed their appeal to the ICC, urging it to immediately release the 80-year-old Duterte from detention while the court reviews a separate petition from their camp seeking to indefinitely pause all legal proceedings, including the pre-trial hearing, due to Duterte’s deteriorating health. 

Kaufman told the court that the octogenarian is “not fit to stand trial as a result of cognitive impairment in multiple domains.”

The prosecution, however, contended that the defense’s claims of Duterte’s health issues, particularly memory loss, do not suffice to establish that he is unfit to stand trial.

Deputy Prosecutor Mame Mandiaye Niang called for a second opinion from a medical expert — to be selected by the prosecution team — to reassess whether Duterte is physically and mentally incapable of participating in the proceedings.

Kaufman has assured the ICC that their camp will comply with any conditions the tribunal might set to allow Duterte’s immediate release to an unnamed country. 

There are 125 state parties to the Rome Statute, the ICC’s founding treaty. Nineteen are from Asia-Pacific, including Japan, Korea, Cambodia, and Timor-Leste. 

The African States account for the largest bloc, with 33 countries, followed by Latin America and Caribbean States with 28. Western European and other countries comprised the 25, while Eastern Europe comprised the 20.

Only Argentina and Belgium have signed cooperation agreements on interim release with the ICC.