The Supreme Court (SC) has sought the views of the contending parties in the surrender of former president Rodrigo Duterte to the International Criminal Court (ICC) on the question of jurisdiction that may establish the proper conduct for the transfer of Filipinos to a foreign tribunal.

The SC’s move came on the heels of the ICC’s rejection of a request by Duterte to be released from detention ahead of his trial on crimes against humanity charges resulting from his war on drugs.

ICC Presiding Judge Luz del Carmen Ibanez Carranza told the hearing that lawyers for the 80-year-old Duterte had not put in place sufficient precautions to warrant a temporary release from custody in The Hague, where the court is based. 

Duterte’s lawyers, appealing against an earlier refusal, had called for a “humanitarian” parole because of the state of his health.

The Philippine Supreme Court is seeking the respondents’ views on whether the ICC has and may exercise exclusive jurisdiction over the case of the former president, despite the Philippines’s withdrawal from the Rome Statute, and whether Duterte was arrested in accordance with international and domestic laws.

The High Tribunal has required agency officials and members of the Duterte family to submit their memoranda on the consolidated petitions regarding the arrest and transfer of the former president to the Netherlands.

In a notice issued by SC Clerk of Court Marife Lomibao-Cuevas on 11 November, the court gave the parties 30 days from the date of the notice to submit their memoranda.

The SC asked them to consider the following issues: whether the present controversy is moot; whether the Court must exercise restraint in view of the ongoing proceedings before the International Criminal Court; and whether a writ of habeas corpus must be issued. 

The court told all parties to present their arguments on whether the former president was lawfully arrested in compliance with domestic and international laws.

Explain Interpol notice 

They were also required to explain whether the Red Notice from the International Criminal Police Organization (Interpol) was enforceable in the country, like a domestic arrest warrant, and, lastly, whether the arrest violated Duterte’s constitutional and statutory rights.

The consolidated cases are the habeas petitions filed by the Duterte children seeking the release and return of their father from the ICC.

The siblings argued that there was no basis for the arrest and subsequent surrender of their father to the ICC as the country was no longer a member of the international tribunal.

The Philippines formally withdrew from the Rome Statute that created the ICC in March 2018. The withdrawal became formal in March 2019.

The former president was arrested on 11 March 2025 on his arrival from Hong Kong where he spoke before a gathering of overseas Filipino workers. He was flown to The Hague and to the custody of the ICC later the same day.

His arrest was based on an ICC warrant stemming from the crimes against humanity charges related to the extrajudicial killings that took place during his time as mayor of Davao City and later as president. 

The Duterte siblings accused then Executive Secretary Lucas Bersamin, then justice secretary now Ombudsman Jesus Crispin Remulla, former PNP chief Gen. Rommel Francisco Marbil, and former CIDG director Maj. Gen. Nicolas Torre III of orchestrating their father’s “abduction and transfer” to the ICC in violation of his constitutional rights and the country’s extradition laws.

Duterte is charged for the crimes committed from 2011 to 2019 while the country was a member of the ICC.

The ICC, in its recent ruling, denied Duterte’s request for an interim release.

Lomibao-Cuevas said the parties are also directed to inform the Court of any developments relevant to the instant case.

PDP tears down tribunal

Duterte’s political group, PDP Laban, slammed the ICC, calling its decision to deny the plea for the temporary release of Duterte “biased” as the international tribunal confronts a “crisis of credibility.” 

Lawyer Ferdinand Topacio, the party’s deputy spokesperson, said the ICC is notorious for its “double standard” and “demonstrable bias against Asian and African states,” leaving the PDP Laban unsurprised by the decision. 

“[I]t desperately needed a trophy to bolster its sagging fortunes,” Topacio said. “Thus, the expected result from a confluence of ineptness from a discredited international body and an effete Philippine government.”

Topacio said Duterte was made the “whipping boy” of the Marcos administration, which is “in need of something to divert attention away from the massive corruption scandals and systemic failure of governance.”

According to the drug war victims’ lawyer, Kristina Conti — ICC Assistant to Counsel — the Appeals Chamber may next rule on the defense’s pending petition challenging the court’s jurisdiction over Duterte’s case. She said the Appeals Chamber has 120 days, or approximately four months, to render a decision.

The defense insisted that the ICC no longer had jurisdiction over Duterte’s case, given that the Philippines was no longer a party to the Rome Statute since March 2019.

The ICC, however, pushed back and asserted its jurisdiction over the killings committed prior to the country’s withdrawal, emphasizing that the preliminary investigation had already commenced even before the country departed the treaty.

Duterte has been detained in Scheveningen Prison in The Hague, Netherlands, since his arrest, on the ICC’s order. 

The warrant was issued through Interpol because the Philippines was no longer a state party to the Rome Statute, the ICC’s founding treaty.

Under Duterte’s watch, the Philippines withdrew from the Rome Statute after the ICC launched a preliminary investigation into the former president’s brutal campaign against illegal drugs, which killed thousands of people, drawing global condemnation.

Government data set the death toll at more than 6,000, but rights watchdogs estimated that the figures exceeded 30,000.

‘Kidnapped’

The family, close allies, and loyal supporters of the former president described his arrest as a “kidnapping” and rigorously urged the ICC to release him immediately, citing his advanced age.

The Duterte camp’s continued questioning of the ICC’s jurisdiction and its arrest order has been a significant factor in the ICC Appeals Chamber’s unanimous rejection of the defense’s petition to grant Duterte temporary liberty. 

The Appeals Chamber upheld a September decision handed down by the Pre-Trial Chamber I which declared that Duterte’s continued detention “remains necessary” to ensure that he will appear at the trial, and will not obstruct or endanger his crimes against humanity case.