Duterte’s ICC arrest: The legal basis for the ex-president’s immediate release

FILE – Former Philippine President Rodrigo Duterte gestures during his speech in Davao, southern Philippines, on Jan. 28, 2024. (AP Photo/Manman Dejeto, File)

The recent arrest of former President Rodrigo Duterte under an International Criminal Court (ICC) warrant has sparked a legal and political firestorm, exposing what many experts are calling a grave misstep by the Marcos administration.

The Office of the Solicitor General (OSG), the chief legal counsel of the Philippine government, has consistently maintained that the ICC lacks jurisdiction over the country following its withdrawal from the Rome Statute. Despite this, the Marcos administration allowed the execution of the ICC’s warrant, violating both Philippine sovereignty and international law.

This article outlines the legal basis for Duterte’s immediate release, the unconstitutional nature of his arrest and the potential legal consequences for the Marcos administration and General Nicolas Torre III, who oversaw the enforcement of the warrant.

The ICC’s lack of jurisdiction over Duterte

Philippines’ withdrawal from the Rome Statute

The Philippines officially withdrew from the Rome Statute on March 17, 2019, a year after filing its formal notification with the United Nations. Under Article 127(2) of the Rome Statute, while the ICC retains jurisdiction over matters already under formal investigation before withdrawal, the OSG argued that the ICC failed to initiate timely legal proceedings, rendering any subsequent actions void.

“The case of the Philippines was not admissible, and the ICC failed to exercise its jurisdiction in a timely manner,” the OSG’s official Manifestation before the Supreme Court stated. This position effectively nullifies any ICC claims over Duterte’s prosecution, making his arrest not only unlawful but a direct affront to Philippine sovereignty.

The arrest violates Philippine sovereignty and due process

The principle of complementarity

The Rome Statute operates under the principle of complementarity, meaning the ICC can only prosecute cases when a national government is unwilling or unable to do so. However, the OSG’s Manifestation reaffirmed that “the country’s investigative, prosecutorial and judicial system is functioning as it should.”

This statement confirms that the Philippines remains capable of investigating and prosecuting its own leaders, rendering ICC intervention inappropriate. By allowing the execution of an ICC warrant, the Marcos administration has undermined the integrity of the Philippine legal system and abandoned its duty to protect national jurisdiction.

Violation of Duterte’s constitutional rights

The execution of the ICC’s warrant constitutes a direct violation of Section 1, Article III of the 1987 Philippine Constitution, which guarantees that:

“No person shall be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws.”

By enforcing an ICC warrant without domestic legal authorization, the Marcos administration and General Torre have effectively engaged in an act tantamount to kidnapping and illegal detention under Philippine law (Articles 267 and 268 of the Revised Penal Code).

Legal grounds for Duterte’s immediate release

Habeas Corpus: Challenging the unlawful detention

A Petition for Habeas Corpus (G.R. No. 278768 and G.R. No. 278798) has been filed by Duterte’s family, arguing that his detention is unconstitutional. Given the OSG’s assertion that the ICC lacks jurisdiction, the Supreme Court should act swiftly to grant the petition.

Under Rule 102 of the Rules of Court, the remedy of habeas corpus applies when a person is unlawfully detained. If the Marcos administration refuses to repatriate Duterte, the Supreme Court should order:

1. His immediate release from ICC custody on grounds of illegal detention.
2. Alternatively, his transfer to Philippine jurisdiction under house arrest pending further proceedings.

Diplomatic protections against unlawful arrest

The Philippine government has a duty under international law to protect its citizens from unlawful foreign detention. As a sovereign state, the Philippines must demand Duterte’s release through urgent diplomatic channels, invoking:

• The Vienna Convention on Diplomatic Relations (1961) – which affirms a state’s responsibility to protect its nationals abroad.
• The UN Charter on State Sovereignty – which prohibits interference in a nation’s internal affairs.

Failure to assert diplomatic protections would constitute gross negligence by the Marcos government and could set a dangerous precedent for future foreign interventions in Philippine affairs.

Holding the Marcos government and General Torre accountable

Criminal and civil liability for illegal arrest

General Nicolas Torre III and other state actors responsible for Duterte’s unlawful detention may face criminal liability under Philippine law, specifically:

• Article 267 (Kidnapping and Serious Illegal Detention) – Punishable by reclusion perpetua for any public official who detains a person without legal authority.
• Article 177 (Usurpation of Authority or Official Functions) – Criminal liability for executing an illegal arrest outside of their jurisdiction.

These provisions provide strong legal grounds for holding those responsible accountable in both criminal and civil courts.

Violation of international law

By cooperating with an illegal ICC warrant, the Marcos administration has also breached several key international legal norms:

• Article 2(7) of the UN Charter – Prohibits external interference in a nation’s internal affairs.
• The ASEAN Charter – Mandates non-interference among member states.
• The Principle of Sovereign Immunity – Protects former heads of state from prosecution by foreign judicial bodies without national consent.

These violations further highlight the need for urgent corrective measures by the Philippine government.

Conclusion: The Supreme Court must act

The Philippine government, through its own legal counsel, has rejected ICC jurisdiction. This invalidates Duterte’s arrest and continued detention. The Supreme Court must now act decisively to:

1. Grant the petition for Habeas Corpus and order Duterte’s immediate release from ICC custody.
2. Alternatively, order his transfer to Philippine jurisdiction under house arrest pending further legal resolution.
3. Hold the Marcos administration and General Torre accountable for their unlawful cooperation with the ICC.
4. File a formal diplomatic protest against the ICC’s jurisdictional overreach.
5. Affirm the OSG’s stance that only Philippine courts have authority over Duterte’s case.

By allowing this illegal arrest to stand, the Marcos government has not only violated the country’s legal framework but has also dangerously compromised Philippine sovereignty.

The Supreme Court and government officials must act immediately to rectify this grave injustice and prevent further foreign judicial overreach into Philippine affairs.

You may like: Duterte’s ICC arrest: Separating fact from lies