Legal opinion: Q&A on the ICC arrest of Duterte

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This academic commentary presents legal arguments opposing the view that the arrest of former President Rodrigo Roa Duterte (PRRD) by Philippine authorities is lawful.

On the contrary, such acts constitute violations of the Philippine Constitution, domestic statutes and international legal principles including those enshrined in the Rome Statute, the European Convention on Human Rights (ECHR) and the United Nations Charter.

Overview

1. Was the ICC Warrant of Arrest against former President Duterte lawful under Philippine and International Law?

Short answer: No.

Expanded answer:
Under Article 127(2) of the Rome Statute, a State Party’s obligations cease one year after formal notice of withdrawal. The Philippines withdrew from the ICC on March 17, 2018, with the withdrawal taking full effect on March 17, 2019. However, the ICC did not initiate a formal investigation or seek a warrant of arrest until 2021, more than two years after withdrawal—well beyond the jurisdictional window.

Legal pitfalls:

• The ICC failed to meet its own procedural threshold of initiating proceedings within a reasonable time after withdrawal.
• Any exercise of coercive powers such as issuing an arrest warrant after withdrawal is ultra vires and constitutes jurisdictional overreach.

Authorities:

• Rome Statute, Art. 127(2)
• Arrest Warrant Case, ICJ Reports (2002)
• Prosecutor v. Simone Gbagbo, ICC-02/11-01/12
• Bayan Muna v. Romulo, G.R. No. 159618 (2005)

2. Is the ICC allowed to continue investigating alleged crimes committed while the Philippines was a State Party?

Short Answer: Only for non-coercive proceedings.

Expanded answer:
Article 127(2) permits the ICC to “continue” investigations already underway prior to the effective withdrawal. However, this does not include issuing new coercive acts (like warrants) post-withdrawal without new consent.

Conclusion:
The ICC cannot unilaterally override the Philippines’ sovereign withdrawal and resume prosecutorial action without violating international norms on state consent.

3. Is the surrender of PRRD lawful under the Philippine Constitution?

Short answer: No.

Expanded answer:
There is no implementing law or treaty allowing post-withdrawal cooperation with the ICC. The Constitution and existing extradition treaties require full judicial proceedings before any surrender of a Filipino citizen.

Authorities:

• Gov’t of the U.S. v. Purganan, G.R. No. 148571 (2002)
• 1987 Constitution, Art. III, Sec. 1 (Due Process)
• People v. Gozo, G.R. No. 144371 (2002): Any deprivation of liberty must comply with constitutional standards.

4. Is PRRD still protected by sovereign immunity?

Short answer: Yes, for official acts.

Expanded answer:
International customary law and Philippine jurisprudence recognize residual functional immunity for former heads of state for acts done in their official capacity. The so-called “war on drugs” was a state policy executed through government mechanisms.

Authorities:

• Arrest Warrant Case (ICJ, 2002)
• Pinochet (No. 3) [2000] 1 AC 147 (UKHL)
• In re Bermudez, G.R. No. 76180

5. Is the ICC prosecution of Duterte part of a global practice?

Short answer: No. It is selective, and arguably discriminatory.

Expanded answer:
The Philippines is the only country being investigated by the ICC for a domestic anti-drug policy, while other states with worse records on extrajudicial killings (e.g., Mexico, Brazil) have not been subjected to ICC scrutiny.

Conclusion:
This creates a selective enforcement issue that violates the principle of equality of states under the UN Charter and the ICC’s own non-discrimination norms.

Authorities:

• UN Charter, Art. 2(1)
• European Commission on Human Rights, Ilascu v. Moldova and Russia, ECHR (2004)
• ICC OTP Policy Paper on Preliminary Examinations (2013): Consistency and objectivity in case selection are required.

New questions

6. Why is PRRD’s War on Drugs not a crime against humanity under international law?

Short Answer: Because it is a domestic criminal policy, not a widespread attack on civilians.

Expanded answer:
To constitute a crime against humanity under Article 7 of the Rome Statute, there must be a widespread or systematic attack against a civilian population pursuant to a state or organizational policy. PRRD’s war on drugs was a domestic law enforcement campaign against drug syndicates, not civilians.

Supporting Doctrine:

• Prosecutor v. Bemba, ICC-01/05-01/08: Requires “state or organizational policy” to target civilians, not criminal actors.
• Prosecutor v. Kordic and Cerkez, ICTY (2001): High threshold for “widespread/systematic” attack.

Conclusion:
PRRD’s drug war policy was neither intended nor executed as a systematic attack against civilians, but was directed at illegal drug actors, consistent with domestic law enforcement priorities.

7. What is the Principle of Complementarity and why does it bar the ICC from intervening in the Philippine situation?

Short answer: The ICC cannot act if Philippine courts are functioning.

Expanded answer:
Under Article 17 of the Rome Statute, the ICC must defer to national jurisdictions that are willing and able to prosecute. There is no judicial finding or evidence showing that Philippine institutions are unwilling or unable.

Case Law:

• Prosecutor v. Germain Katanga, ICC-01/04-01/07
• Prosecutor v. Muthaura, ICC-01/09-02/11: Court declined to proceed due to ongoing domestic accountability measures.

8. Can government officials who facilitate PRRD’s arrest face liability?

Short Answer: Yes.

Expanded answer:
Unlawful arrest or surrender without enabling domestic law exposes officials to both criminal and administrative sanctions.

Philippine law:

• Articles 267–268, RPC – Kidnapping and Serious Illegal Detention
• Article 177, RPC – Usurpation of Authority
• Article 32, Civil Code – Violation of constitutional rights
• RA 3019 – Anti-Graft and Corrupt Practices Act

International law:

• ICCPR, Art. 9 – Arbitrary detention prohibited
• Assanidze v. Georgia, ECHR (2004)

9. Why was the ICC’s investigation initiated too late under its own rules?

Short answer: The investigation was initiated two years after withdrawal—beyond the 1-year jurisdiction window.

Expanded answer:
Under Article 127(2), procedural steps such as investigations or warrants must be taken within one year of the withdrawal becoming effective, unless the State consents again. The Philippines’ effective withdrawal was March 17, 2019. The Office of the Prosecutor did not obtain judicial authorization for investigation until September 2021.

Conclusion:
This constitutes prescription under the Rome Statute and bars any continuing jurisdiction.

10. What is a short rebuttal for the views that PRRD’s Arrest is lawful and Legal? 

Short answer: It is based on flawed interpretations of jurisdiction, complementarity and immunity.

Expanded answer:
These views assume the following:

• That ICC jurisdiction and enforcement powers survive withdrawal
• That complementarity is irrelevant
• That Duterte’s immunity does not apply

All these assumptions run counter to international law and Supreme Court jurisprudence.

Conclusion:

Their position effectively argues for foreign authority overriding constitutional safeguards – a position that undermines Philippine sovereignty and due process.

Footnotes

¹ Prosecutor v. Laurent Gbagbo, Separate Opinion of Judge Van den Wyngaert, ICC-02/11-01/11-572, paras. 15–18 (2013).
² Bayan Muna v. Romulo, G.R. No. 159618 (2005).
³ Gov’t of the U.S. v. Purganan, G.R. No. 148571 (2002).
⁴ Arrest Warrant Case, ICJ Reports (2002).
⁵ Rome Statute, Art. 127(2).
⁶ United Nations Charter, Art. 2(1) (1945).
⁷ Assanidze v. Georgia, ECHR Judgment (2004).
⁸ Prosecutor v. Germain Katanga, ICC-01/04-01/07.
⁹ Prosecutor v. Bemba, ICC-01/05-01/08.

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.

Rev. Valera is also an ordained evangelical minister,  non-denominational.