Losing badly at the ICC

By Diego Morra

The defense in the case of detained ex-president Rodrigo Duterte before the International Criminal Court (ICC) is going in circles, rudderless it seems, after losing its bid to win interim release for its client, with the court arguing that Duterte continues to control his hitmen and glassy-eyed cult followers, and any “order” or hint from him and his family members could lead to the harassment of witnesses and relatives of the victims of the death squads in Davao City and the rest of the country.

Tragically for the Dutertes, they still think that they can win their tactical battles with the Office of the Prosecutor (OTP) of ICC through pressure tactics, legal filings backed up by fabricated claims, from the illusive yarn about Duterte Sr. collapsing in his detention cell, to the lack of medical care, including the serious problem of a blasted ingrown toenail, to the strange claim that, suddenly, Duterte Sr. could not recognize his own counsel Nicholas Kaufman, and that his cognitive impairment requires the 24/7 attention of his family or families and trusted caregivers like Sen. Bong Go.

Add the claims that several countries would take in Duterte Sr. should he be granted interim release, only for such countries to deny the same. No one wants to touch Duterte Sr. with a ten-foot pole and that says a lot about how the community of nations regards the architect of the bloody “war on drugs” in the Philippines. Theoretically, the Dutertes misconstrue the judicial system they are confronting, believing that it is no different from Philippine courts, only that the Rome Statute defines ICC procedures, the conduct of the OTP and how it applies international humanitarian law. This alone kills whatever kind of humanitarian accommodation the Dutertes think their patriarch is entitled to.

So, when Sara Zimmerman Duterte Carpio talked about springing Duterte Sr. from the Scheveningen Prison, the ICC took notice. Similarly, when the Duterte families quibbled about the “kidnapping” and “rendition” of Duterte Sr., they were trying to relitigate an issue that had been mooted. To be frank, Duterte Sr. was quoted as saying on Mar. 11, 2025 that the warrant of arrest issued against him by the ICC for crimes against humanity and implemented by the Interpol was valid. The attempt to seek intervention by Philippine courts went for naught. The Philippine withdrawal from the ICC did not spare Duterte Sr. and his cohorts from facing the music as the country was still a signatory to the Rome Statute and was bound to respect the processes of the ICC. Logorrhea is not surefire defense.

A fatal error that the Dutertes committed was to persistently question the jurisdiction of the ICC over the case, arguing that the murders committed in the conduct of the “anti-drug war” were covered by Philippine courts. The failure of the Department of Justice (DOJ) to investigate Duterte Sr. and his minions from June 30, 2022 until he was arrested proved to all and sundry that Filipino prosecutors turned tail in rendering justice to the 30,000 victims, along with those murdered in Davao City. On Oct. 23, ICC judges simply rejected the Duterte challenge, saying withdrawal from the ICC does not affect matters “already under consideration by the court.”

ICC judges lectured the Duterte defense panel that the prosecution’s preliminary examination was substantial enough to prove the matter was already under consideration. In their Oct. 23 decision, the ICC’s Pre-Trial Chamber I (PTC I) rejected the argument of Duterte’s defense team to prove it has no jurisdiction over the case since the inquiry started only in September 2021, two years after Duterte ordered the country’s withdrawal from the Rome Statute. The PTC I judges referred to Article 127 (2) of the Rome Statute that sets the consequences when a member state leaves the ICC.

Article 127 provides that a withdrawal by a state party from the Rome Statute does not have any effect on its “cooperation with the court” over any criminal investigation or proceeding that had begun before the withdrawal became effective. As OTP prosecutors had been working on the cases before Duterte pulled out of the treaty, the matter had been under consideration by the ICC. Moreover, the Dutertes do not understand that the OTP and the ICC are one organization as contemplated by the Rome Statute, unlike in the Philippine setting where the prosecution is distinct from the judiciary.

The Oct. 23 ruling may as well set the stage for the full-blown trial of Duterte Sr. even if the recently-formed panel of neuropsychiatrists and neurologists were to examine the accused to find out whether he is so cognitively impaired that he can be unfit for trial or that he can understand the gravity of the charges against him and can defend himself despite the huge volume of evidence gathered to prove his guilt. It is not yet known when other respondents would join Duterte. Misery loves company. It must be terribly lonely for Duterte to stay alone in his cell. How soon would Sens. Bato de la Rosa and Bong Go join him? Only the ICC knows.