The arrest of the unlamented ex-president Rodrigo Duterte by the International Criminal Court (ICC) on Mar. 11, 2025 is but the start of a process that the global community established to prosecute, convict or acquit the accused of extraordinary crimes, particularly those who cannot be tried impartially in their own countries by reason of their immense power, or the breakdown of the justice system.
Duterte’s lawyers may question the so-called absence of an “arrest warrant” against their client or the abject lack of jurisdiction by the ICC but the fact remains that the court was established by the United Nations General Assembly (UNGA) on Dec. 9, 1999 and again on Dec. 12, 2000 to endorse it. After 60 ratifications, the Rome Statute entered into force on July 1, 2002 and the ICC was established formally to try crimes against humanity, war crimes and genocide. An ICC arrest warrant dated Mar. 7, 2025 sent to the International Police (Interpol) legitimized the capture of Duterte at the Ninoy Aquino International Airport (NAIA.) Unfazed, Duterte’s lawyers scurried to the Supreme Court (SC) to block the transport of Duterte to The Hague, The Netherlands, where he will get royal detention at a castle used as a jail for those accused in ICC cases. ICC can also lease a private jet to bring Duterte to Europe in case the Philippine government is not amenable to lend the presidential Gulfstream jet for Duterte’s ride. Ironically, it was Duterte who bought the plane.
Within the purview of the ICC, war crimes “include torture, mutilation, corporal punishment, hostage taking and acts of terrorism. This category also covers violations of human dignity such as rape and forced prostitution, looting and execution without trial. War crimes, unlike crimes against humanity, are always committed in times of war.” ICC includes all acts committed with the intent to destroy a national, ethnic or religious group as elements of genocide. “Crimes against humanity are acts committed as part of a widespread or systematic attack directed against any civilian population, such as murder, deportation, torture and rape. The ICC prosecutes the perpetrators even if the crimes were not committed in times of war.”
ICC says it is competent to hear a case if the country where the offense was committed is a party to the Rome Statute or the perpetrator’s country of origin is a party to the Rome Statute. The ICC may only exercise its jurisdiction if the national court is unable or unwilling to do so. The ICC only has jurisdiction over offenses committed after the Statute’s entry into force on July 1, 2002. State parties have the right to refer a case to the ICC along with the Office of the Prosecutor (OTP) and the UN Security Council (UNSC.) The UNSC may ask the ICC to defer investigation of a case for a limited period if it considers that the proceedings would constitute an obstruction to its powers. Thirty cases are pending before the ICC, with the court deciding not to proceed with eight cases, including one of three cases filed against Venezuela.
ICC reported last year that the preliminary examination of the situation in the Philippines focuses on alleged atrocity crimes committed since July 1, 2016 in the context of the Duterte government’s “war on drugs.” The allegation is that thousands perished for their alleged involvement in illegal drug use or sale. The police and military were accused of bulk of the murders while unidentified paid assailants carried out the killings at the behest of the state. Even as the Duterte regime created an inter-agency panel to reinvestigate deaths in the war on drugs, the OTP ultimately determined that “the overall failure to take meaningful action to bring perpetrators to justice, particularly when combined with promises of immunity or protection from accountability, constitutes a form of encouragement to perpetrators to continue committing violent crimes against suspected drug users and dealers.”
The Philippines ratified the Rome Statute on Aug. 30, 2011 and the ICC had jurisdiction over Rome Statute crimes committed since Nov. 1, 2011. On Mar. 17, 2018, the Duterte government deposited a written notification of withdrawal from the Rome Statute and the withdrawal took effect on Mar. 17, 2019. However, ICC retained jurisdiction over alleged crimes that occurred in the Philippines when it was a state party to the ICC- from November 1, 2011 through March 16, 2019. In its Dec. 14, 2020 report, the OTP declared that it is satisfied that crimes against humanity were committed between at least July 1, 2016 and March 16, 2019, and therefore it has subject matter jurisdiction. In June 2021, OTP requested publicly to open an investigation into crimes committed in the Philippines between November 1, 2011 – March 16, 2019, focusing on allegations of murder as a crime against humanity through the so-called “war on drugs” throughout the Philippines from 2016 to 2019 and earlier in the Davao region from 2011 to 2016.
Pre-Trial Chamber I authorized the opening of an investigation on Sept. 15, 2021 in line with OTP’s request, finding a reasonable basis to conclude that crimes within the ICC’s jurisdiction had been committed, and noting that the investigation could encompass other crimes within the territorial, temporal, and factual parameters of the Prosecutor’s request. Pre-Trial Chamber emphasized that “based on the facts as they emerge at present and subject to proper investigation and further analysis, the so-called ‘war on drugs’ campaign cannot be seen as a legitimate law enforcement operation, and the killings discussed above neither as legitimate nor as mere excesses in an otherwise legitimate operation, and that “rather, the available material indicates that an attack against the civilian population within the meaning of Article 7(2)(1) of the Statute occurred.”
The Pre-Trial Chamber also reiterated that despite the Philippines’ withdrawal from the Rome Statute, when became effective in March 2019, the ICC retained jurisdiction over crimes committed while the Philippines was State Party. It considered 204 victim representations and noted that 94% of the victims’ representations favored an investigation. With these determinations, the ICC is expected to use UN planes and security to ship Duterte to The Netherlands. Normally, the UN uses AN-124 transport planes to bring in armored vehicles and security forces for its missions. It appears that the ICC acted quickly to apprehend Duterte at the international airport in Manila rather than arrest him in Davao City, where he could mobilize his supporters to hinder his capture. (DIEGO MORRA)
