Legal opinion: Why the ICC case against Duterte is legally flawed 

Former Philippine President Rodrigo Duterte is seen on a screen in the courtroom of the International Criminal Court (ICC) in The Hague, Netherlands, Friday, March 14, 2025. (AP Photo/Peter Dejong, Pool)

The ongoing investigation and issuance of a warrant of arrest against former President Rodrigo Roa Duterte by the International Criminal Court (ICC) have reignited contentious debates on sovereignty, international law and the rule of law in the Philippines.

As a Filipino lawyer, an advocate for migrant rights and an international legal practitioner for over three decades, I was honored to be invited by the Senate Committee on Foreign Relations, chaired by Hon. Senator Maria Imelda Josefa “Imee” Marcos, to present my formal legal opinion on this critical issue.

The following is the entirety of my formal statement submitted to the Senate during its Public Hearing on March 20, 2025. It is my firm position that the ICC case is not only legally untenable but a dangerous overreach into our country’s sovereignty, disregarding our constitutional framework and existing judicial processes.

FORMAL STATEMENT OF ATTY. ARNEDO S. VALERA
For the Public Hearing of the Philippine Senate Committee on Foreign Relations
On the ICC Case Against Former President Rodrigo Roa Duterte
March 20, 2025, 10 a.m.

Hon. Senator Maria Imelda Josefa “Imee” Marcos
Chairperson, Senate Committee on Foreign Relations
Republic of the Philippines
Senate of the Philippines, Pasay City

Thru: Ms. Abigail Andaya, Committee Secretariat

Subject: Submission of formal statement on the ICC case against former President Rodrigo Roa Duterte

I. Introduction and Expression of Gratitude

Madam Chairperson and Honorable Members of the Senate Committee on Foreign Relations:

First and foremost, I express my sincerest gratitude to your esteemed Committee for the invitation extended to me through Ms. Abigail Andaya to share my legal opinion during this historic and timely public hearing. I apologize for the delayed acknowledgment of your invitation, which was sent via WhatsApp. Unfortunately, I seldom check messages on that platform and, at that time, I was also recuperating from a medical condition.

Nevertheless, upon being informed of the invitation, I immediately conveyed my willingness to participate and present my views on a matter of great national interest—the issue of the legality and jurisdiction of the International Criminal Court (ICC) in relation to the warrant of arrest against former President Rodrigo Roa Duterte.

II. Summary of Position

I firmly submit that the ICC case against former President Duterte is legally flawed, jurisdictionally defective and violative of Philippine sovereignty. It disregards fundamental principles of both Philippine constitutional law and international law, including the ICC’s own rules of procedure and the principle of complementarity under the Rome Statute.

Further, any arrest or surrender of former President Duterte to the ICC – whether facilitated through INTERPOL or otherwise – would be unconstitutional, illegal and a direct affront to our nation’s sovereignty and legal system.

III. Legal and Jurisdictional Bases

A. The Philippines’ Withdrawal from the ICC and Lack of Treaty Obligation

The Philippines officially withdrew from the Rome Statute on March 17, 2019. The principle of pacta sunt servanda under the Vienna Convention on the Law of Treaties only applies to valid and enforceable treaty obligations. Our withdrawal, validly executed under Article 127(1) and (2) of the Rome Statute, effectively nullified any further treaty obligations, including the obligation to surrender any Filipino citizen to the ICC.

Furthermore, no treaty or international agreement is valid in the Philippines without Senate concurrence and publication in the Official Gazette. The Rome Statute was never published as required under our Constitution. Thus, it never acquired the force of law in the Philippines.

B. No Retroactive ICC Jurisdiction

Article 127(2) of the Rome Statute provides that a withdrawing state is not obligated to cooperate with the Court on investigations initiated after its withdrawal. This includes any ICC warrant issued after our exit.

C. No Implementing Law for ICC Arrest Warrants

Under the Philippine Constitution, international treaties require domestic enabling legislation for enforcement. The Philippines never enacted a law implementing the ICC’s authority. Without such statute, any enforcement of an ICC warrant is ultra vires – beyond the scope of legal authority – and unconstitutional.

D. INTERPOL’s Legal Framework and Its Limits

It has been argued that INTERPOL membership requires Philippine authorities to comply with ICC arrest warrants. This is factually and legally incorrect:

• INTERPOL does not have arrest powers.
• INTERPOL’s Red Notices are not arrest warrants but only requests for information sharing.
• Article 3 of INTERPOL’s Constitution prohibits involvement in politically motivated cases.
• The Philippines has no extradition treaty or mutual legal assistance treaty (MLAT) with the ICC.
• Philippine law and jurisprudence, including Bayan Muna v. Romulo (G.R. No. 159618), affirm that international commitments must comply with the Constitution and domestic law before they can be enforced.

E. The Writ of Habeas Corpus as a Constitutional Safeguard

The writ of habeas corpus remains a powerful remedy even when facing foreign-issued arrest warrants. In Alejano v. Cabuay, the Supreme Court reaffirmed that Philippine courts must always be available to guard individual liberty against abuse, whether domestic or foreign.

Any arrest in Philippine territory – especially one based on a foreign court’s mandate – requires judicial scrutiny. To surrender former President Duterte without judicial review would violate our Constitution.

IV. Flawed Legal Characterization of Duterte’s Anti-Drug Campaign

The allegations of crimes against humanity disregard the factual and legal context of the Philippine anti-drug campaign:

• It was a law enforcement operation targeting criminal syndicates, not a systematic attack on civilians.
• There was no state policy of extermination.
• Convicted police officers involved in abuses were held accountable under Philippine law, confirming the functionality of our judicial system.
• No previous ICC case has treated a government’s anti-drug operations as crimes against humanity.

The ICC’s selective prosecution of Duterte while ignoring similar or far worse actions in other jurisdictions is a glaring example of selective justice and political weaponization.

V. Global Context and Failure of the War on Drugs

The ICC’s selective focus on the Philippines ignores the broader failure of the global war on drugs:

• The United Nations itself has acknowledged the failure of aggressive anti-drug policies.
• The United States’ trillion-dollar war on drugs has failed to eliminate drug abuse, with overdose deaths continuing to rise.
• Latin American countries such as Mexico, Colombia and Brazil remain overrun by cartel violence despite decades of military-led crackdowns.

The ICC’s case risks losing credibility by selectively targeting the Philippines while ignoring these far deadlier drug wars waged by Western nations and their allies.

VI. Recommendations to the Committee

In light of the foregoing, I respectfully recommend that this Committee:

1. Issue a Senate resolution declaring the illegality of the arrest, surrender and continued detention of former President Rodrigo Roa Duterte under the ICC warrant.
2. Assert the exclusive jurisdiction of Philippine courts over the alleged charges related to the anti-drug campaign, consistent with the principle of complementarity.
3. Recommend to the ICC Pre-Trial Chambers the immediate dismissal of the case against former President Duterte and his repatriation to the Philippines, where any investigation or prosecution must be undertaken under Philippine laws and judicial procedures.
4. Call on the international community to reassess and redirect global drug policies away from prohibitionist approaches that have failed and towards solutions that address the root causes of the drug epidemic.

VII. Conclusion

I commend the Senate Committee on Foreign Relations, under the able leadership of Hon. Senator Imee Marcos, for holding this hearing. It is a historical and courageous exercise in upholding our national sovereignty, constitutional integrity and the rule of law. The Committee’s work will be remembered not only as a defense of one former president but of the dignity and independence of the Republic of the Philippines.

The ICC’s attempt to prosecute Duterte is legally unfounded, politically selective and constitutionally dangerous. The Philippines has functioning courts, a working legal system and the sovereign right to enforce its own laws against criminal networks.

I am honored to contribute to this deliberation and remain at the disposal of this Committee for any clarification or further assistance.

Respectfully submitted,

Atty. Arnedo S. Valera

Atty. Arnedo S. Valera is the Executive Director of the Global Migrant Heritage Foundation and Managing Attorney at Valera & Associates, a US immigration and anti-discrimination law firm for over 32 years. He holds a master’s degree in International Affairs and International Law and Human Rights from Columbia University and was trained at the International Institute of Human Rights in Strasbourg, France. He obtained his Bachelor of Laws from Ateneo de Manila University. He is a professor at San Beda Graduate School of Law (LLM Program), teaching International Security and Alliances.