Notes on Arrest of President Duterte

Arrest of Former President Duterte by the ICC

Background

  • In 2025, former Philippine President Rodrigo Duterte was arrested by the International Criminal Court (ICC).
  • The arrest warrant was issued due to allegations of orchestrating death squads responsible for extrajudicial executions of alleged drug users and traffickers during his term.
  • Human rights groups estimate up to 30,000 drug suspects were executed, while local police claim the number is closer to 6,000.
  • The ICC, established in 02/2002, has issued 60 arrest warrants, resulting in 11 convictions and four acquittals.

ICC Jurisdiction and the Philippines

  • The ICC prosecutes individuals for genocide, war crimes, crimes against humanity, and the crime of aggression.
  • The arrest has raised legal, political, and social issues, notably jurisdictional disputes.
  • The Philippines withdrew from the ICC's Rome Statute in 2019, raising questions about the ICC's jurisdiction over crimes committed during its membership (November 2011 to March 2019).
  • Another question is whether the Philippine government must comply with Article 59 of the Rome Statute, which requires prompt judicial authority presentation in the custodial state.
  • Duterte was in the presence of DOJ officials during his arrest, but was not brought before a court, leading to arguments about whether Article 59 was strictly followed.
  • Some argue Article 59 does not apply since the Philippines is no longer a state party.
  • It's debated whether domestic law or RA 9851 (Philippine Act on Crimes Against International Humanitarian Law, Genocide, and Other Crimes Against Humanity) is the applicable law.

Due Process and National Sovereignty

  • Duterte resisted procedures like fingerprinting during his arrest at Manila's Ninoi Aquino International Airport, claiming violations of his constitutional rights.
  • The arrest is seen by some as infringing upon national sovereignty and due process.

ICC Legitimacy and Challenges

  • The ICC is recognized in global justice, but its respect and legitimacy vary.
  • Some question its impartiality, effectiveness, and enforcement power.
  • The ICC has faced challenges with unenforced arrest warrants due to lack of cooperation or non-recognition of its jurisdiction by countries like Sudan (Omar Al Bashir) and Russia (Vladimir Putin).
  • Benjamin Netanyahu also faces an ICC investigation for war crimes and crimes against humanity during the Gaza conflict.
  • Despite challenges, the ICC has secured 11 convictions, mostly of warlords and militia commanders, making the Duterte case significant as it involves a former head of state.

Global Human Rights Discourse

  • The case has reignited debates on human rights practices, the legitimacy of international legal bodies, and striking a balance between national sovereignty and global accountability.
  • The arrest has galvanized human rights organizations and may influence future advocacy strategies.

Legal Standards and Procedures

  • Charge: Crimes against humanity under Article 7(1)(a) of the Rome Statute (murder).
  • The pre-trial chamber initially considered charges for torture and rape, but found the nexus to the attack insufficient.
  • Standard for Warrant of Arrest: Reasonable grounds to believe the person committed a crime within the court's jurisdiction and that arrest is necessary.
    • The court noted Duterte's considerable power in the Philippines as a factor.
  • The standard means evidence establishes a reasonable conclusion, even if other conclusions are possible.

ICC Process

  • First Appearance: The person is informed of the crimes and their rights. The right to apply for interim release pending trial exists.
  • Interim Release: The court checks warrant requirements and may impose conditions like posting bond or personal security.
  • Confirmation of Charges (Article 61): A critical stage before trial.
    • The standard is sufficient evidence to establish substantial grounds to believe the person committed the crime charged.
    • The person may object to charges, challenge evidence, and present their own.
    • The standard is more exacting than that satisfied for a warrant of arrest.
    • Consideration of age or health may be relevant.
  • Trial (Article 64): The accused must be present, and the trial is generally public.
    • The trial chamber reads the confirmed charges.
  • Admission of Guilt (Article 65): Requires understanding the nature and consequences of the admission, voluntariness, and factual support.

Rights of the Accused

  • Include being informed of charges, right to counsel, interpreter, and trial without undue delay.

Victims' Rights

  • Victims may share their views and participate through various mechanisms.
  • Victims' council is separate from the prosecutor.
  • ICC provides mechanisms for victims to participate (Article 68).

Proving Crimes Against Humanity (Murder)

  • Elements:
    • Killing of a person.
    • Part of a widespread or systematic attack against a civilian population, with knowledge of the attack.
    • Knowledge and intent (mens rea) under Article 30 of the Rome Statute.
  • Widespread means a large geographical area or directed against a large number of people.
  • Systematic implies an organized plan and need not be expressed or written policy.

Mode of Liability: Indirect Co-Perpetrator

  • Article 25(3)(a) entails liability for committing a crime jointly with another person (co-perpetrator) or indirectly through another person.
  • The concept involves "control theory," where the person is liable as the principal because they control the crime.
  • Indirect co-perpetration has been subject to different opinions by ICC judges, particularly in the Mutaganda case.

Potential Sentence

  • Imprisonment (maximum 30 years).
  • Life imprisonment in exceptional circumstances.
  • Forfeiture of proceeds.
  • Sentencing considers the gravity of the crime and individual circumstances.

Appeals

  • Appeals are possible on grounds of error of law, error of fact, or procedural error.

Domestic Law and Procedure Issues

  • Several petitions are before the Supreme Court (Habeas Corpus, certiorari, prohibition, etc.) related to Duterte's arrest.
  • The Supreme Court denied a temporary restraining order, stating that there was no clear legal right detailed in the petition.
  • Issues include whether a writ of Habeas Corpus can affect someone outside the Philippines.
  • Current petitions want a declaration, which may be similar to an advisory opinion or declaratory relief, over which the court has no jurisdiction.

Crimes Against Humanity Context

  • The context of international crimes (widespread or systematic attacks) makes them international crimes.
    • simply the criminal pattern within an organization can be the means of proving context such as: the same killing style, perpetrators group, area, and temporal scan.
  • Crimes against humanity is NOT a predicate crime since the crime against humanity of murder, IS the crime itself.
  • There is no requirement of use per se of the state apparatus.
    There is no victim threshold in the Rome Statute that would make allegations not constitute crimes against humanity.
  • Gathering all evidence is important in discovering the patterns of criminality related to the overarching scheme.

Modes of Participation

  • Pattern witnesses are important in the investigation for seeing first hand MOD of the criminal.
  • Witnesses may include insider witnesses who themselves could have been part of the perpetrator.

ICC Uniqueness

  • The Rome Statute distorts the role of the Prosecutor who is allowed to continue investigative work.
  • Human Right practitioners will be important for the evidence preservation relating to the war on drugs

Gathered Evidence of Patterns

  • The goal should be to surface trends, incidents through geographic scopes, and modus operandi.
  • The ICC model allows the victims to come to court and aid in clarifying what happened.
  • As such, the victims and prosecutors are separate from each other by statute.

command responsibility vs indirect co-perpetration.

  • Command responsibility focuses on failure to exercise control and is governed by Article 28
    Linkage evidencer for command responsibility, is gathered through the chain of command and gathering who gave the orders, rewards and incentive structure.

Evidence that can be used

  • All open sources can be treated as evidence. The legal pronouncements that President Duterte made during his presidency alluding to ordering killings through the drug war, can used.
    *The office of the Supreme Court, PCO archives, open sources can be treated as evidentiary that does not infringe upon personal sovereignty or due process.

Exceptions to settled rules, in extradition or deportation of someone with detention

  • International laws give exception and in that sense this is considered a legal activity by the state.
Victim participation
  • This is crucial because informant, and what they show will be related to article 63 of the Rome Statue
  • Participation, reparation, section will provide information. The office of public council will provide legal representation to victims throughout the proceedings.

ICC is ineffictive?

  • There is much criticism on the ICC , but we cannot dismiss it for what it is. Instead seek out to examine contingency on context and history. Acknowledge the complexity and international law based from colonial and complex imperial history may be needed to create the modern legal crisis. The task for international laws is how possible of justice can be served.

Court Differences with Domestic Courts

  • The ICC operates very differently and shouldn't be fit onto what is done locally, here are a few notes:
    • Entering the Dutch territory for justice requires no visa, it is a separate operation from those from similar operation.
    • Procedure is heavy influenced by continental tradition, but is most likely a mix of American procedure.
    • Not just good for the accused, but justice through judicial proceeding must be ensured.
    • Rules and duties don't create a duty of custodial state in order to make someone a right to be presented before domestic tribune.
    • Also if the ICC tries accused the Filipino court cannot due to its dual jeopardy, otherwise called complementarity, this makes it unable to try accused a second time.
    • ICC has had some exceptions due to the settled rule; such as when it comes to public service where a person from a state must follow the procedures.

Other Rules, Laws, and Expectations

  • ICC expect public advocate legal teams which are not found or celebrated locally. Its encouraged, not glorified elsewhere. Also these practices are crimes in other places.
    • Anonymity can be hard to fulfill, witnesses or past victims may be open if they need a visa to escape. Some legal teams are expected to keep confidentiality under oath, but even then the situation may change.

Facts about the ICC and Duterte

  • 60 arrest warrants, leading to only 11 being convicted. Other countries can assist by asking if they would serve adhoc and deliver accused.
  • Can act against warrants being committed and ensure they do not continue mischief related to the crime the court is to solve.
  • If the accused leaves there is no prescription, liability does not expire.

Indirect Perpetrator

  • Means that evidence, must show what the means and organizational hierarchy was like. Its not as easy if you are to blame state apparatus so that the laws can be used so the president can be found guilty for the crime. However that is a different idea, instead its best for cases where the person is a mastermind over the crime.

State discharge in ICC, the legalities behind this point and why they are so important to ensure fair due process to victims.