Is Rodrigo Duterte's arrest under the ICC-issued warrant valid? Lawyers weigh in

Is former president Rodrigo Duterte's arrest valid after the Philippines withdrew its membership from the International Criminal Court? 

While being held in Villamor Air Base on March 11, Duterte himself questioned his arrest, stressing that the ICC no longer has jurisdiction since the country's withdrawal in March 2019.

“Hindi ako papayag. I am a Filipino, you are all Filipino citizens. Ako, 'pag nagkasala, you prosecute me in Philippine courts, to a Filipino judge, Filipino prosecutor, and magpakulong ako dito sa bayan ko, kung sakali," he said in the Instagram Live posted by his daughter Kitty. 

Social media users, specifically his supporters, also cried foul and expressed concerns over the country's sovereignty. But is the ICC arrest warrant for Duterte for his alleged crimes against humanity valid?

Lawyers weigh in

UP Law assistant professor Michael Tiu Jr. said that Duterte's arrest cannot be considered a violation of the Constitution.

"Hindi natin 'yan masasabi ngayon dahil 'yung sistema ng pag-aresto ayon sa Rome Statute ay dapat sumunod sa national law ng estado na nag-aaresto," he said in his interview with ANC.

"Itong panahon na ito na nasa kustodiya siya ay kritikal na panahon na sundin ang konstitusiyon at sundin ang ilan pang mga proseso ng ating national law."

Atty. Mel Sta. Maria, citing Pangilinan et al. v. Cayetano et al., stressed that the Supreme Court ruled that the ICC “retains jurisdiction over any and all acts committed by government actors until March 17, 2019," and the withdrawal from the tribunal does not affect the liabilities of individuals charged before the ICC for acts committed up to this date.

This was also explained in the arrest warrant for Duterte.

"The Chamber recalls, that while the Philippines' withdrawal from the Statute took effect on 17 March 2019, the Court retains jurisdiction with respect to alleged crimes that occurred on the territory of the Philippines while it was a State Party from 1 November 2011 up to and including 16 March 2019," the court explained.

"It further recalls that the Court's jurisdiction and mandate is exercised in accordance with the provisions of the Statute, an international treaty to which the Philippines was a party at the time of the alleged crimes for which the investigation was authorized," it added.

By consenting to the treaty, the Philippines explicitly accepted the jurisdiction of the ICC, causing obligations to "remain applicable, notwithstanding the Philippines' withdrawal from the Statute."

While the Philippines has the primary jurisdiction over the crimes, Sta. Maria said the ICC has a complementary rule that if the state is "unwilling or unable genuinely to carry out the investigation," it can take over the investigation and assume jurisdiction over these crimes.

ICC assistant to counsel Atty. Kristina Conti said that an individual who was arrested under an ICC arrest warrant must be turned over to the local enforcement officer of the member state and transferred to The Hague for trial as soon as possible. She also noted the possibility that Duterte may be sent to other ICC member countries for trial.

However, international Law Professor Atty. Romel Bagares noted that the formal turnover of an accused to the ICC needs to go through the national proceedings of extradition "to ensure that the arrest is proper and legal according to the rules."

“ICC rules mismo ang nagsasabi na dapat magkaroon ng extradition para malatag nang maayos at proper ang pag-aresto at dapat siyang ipadala sa The Hague for trial. You have to do it by the book," he said in an interview with News5's Frontline.

On PH's sovereignty

The Integrated Bar of the Philippines (IBP) Davao City Chapter stressed that the ICC must "always respect national sovereignty and recognize the capacity of individual nations to enforce their own laws."

They noted that while the ICC retains jurisdiction over past crimes committed before the country's withdrawal on March 16, 2019, the international tribunal "cannot unilaterally impose obligations upon a non-member state," nor "undermine the country's legal system."

"The Philippine National Police (PNP) is duty-bound to uphold the Constitution and prioritize the interests of the Filipino people. Any action on an ICC-issued warrant must strictly adhere to Philippine laws, to ensure national sovereignty and to protect the rights of its citizenry," the IBP said in a statement.

It further stressed that the ICC "cannot unilaterally impose obligations" upon non-member states.

"We urge the government to firmly assert our national sovereignty while ensuring that justice is pursued in accordance with our Constitution and domestic laws," it wrote.

On the other hand, Sta. Maria said that allowing ICC to probe Duterte's alleged crimes against humanity is "not unpatriotic," especially since the Philippines' law allows it. Section 17 of Republic Act No. 9851 allows the Philippines to waive its jurisdiction to an international tribunal to conduct the hearing in certain circumstances.

“In the interest of justice, the relevant Philippine authorities may dispense with the investigation or prosecution of a crime punishable under this Act if another court or international tribunal is already conducting the investigation or undertaking the prosecution of such crime,” the law read. 

“Instead, the authorities may surrender or extradite suspected or accused persons in the Philippines to the appropriate international court, if any, or to another State pursuant to the applicable extradition laws and treaties,” it added. 

Sta. Maria stressed that allowing ICC to investigate is a better course of action since Duterte held a high position and his alleged crimes would have “immense implications for the country’s own law enforcement system."

He also noted that crimes this heavy may be “better served by a system that can give a significant amount, if not all, of its attention to the case,” he wrote. 

Atty. Gigo Alampay, founder of non-profit organization CANVAS, noted that the ICC's involvement allows justice to prevail without being distorted by political influence. 

"The point is that this is bigger than one man or one country. This is about a global standard: that no leader, no matter how powerful, can commit crimes against humanity without consequence," he wrote on Facebook.

"Human rights should not be bound by borders or political convenience. If local systems cannot or will not hold perpetrators accountable, then justice must find another way."

"Duterte’s case is not just a test of Philippine justice. It is a test of whether the world truly believes that human rights are universal, or merely conditional on who holds power," he added.