Points of contention: Int’l law experts’ views on Duterte ICC case

MANILA, Philippines — Former President Rodrigo Duterte’s case before the International Criminal Court (ICC) has sparked local debates about international law.

Alleged to have committed crimes against humanity in connection with his bloody war on drugs, Duterte is the first Filipino and first Asian former head of state to be brought before the international tribunal.

The former president’s arrest “presents both an opportunity and a challenge for the ICC,” according to University of the Philippines (UP) College of Law Dean Darlene Berberabe at a colloquium last Friday.

Here are some of the issues discussed by experts:

Was Duterte’s arrest done ‘by-the-book?’

Duterte’s children sought to challenge the ex-leader’s arrest through a habeas corpus petition before the Supreme Court, claiming his detention and transfer were “grave violations of his constitutional rights, due process and the sovereignty of the Philippine judicial system.”

READ: Sebastian Duterte files petition to bring father back home

However, the Department of Justice (DOJ) maintained that Duterte’s arrest followed protocols.

READ: DOJ: Duterte arrest for ICC drug war case followed protocols

At the UP Law colloquium, professor and former Supreme Court spokesperson Ted Te said the arrest “went by the book,” noting that the arrest was by virtue of a warrant issued by the ICC not a local court.

“I noticed many reports that he was ‘read his Miranda Rights,’ which technically doesn’t apply in the sense that he is not charged with any criminal offense in the Philippines,” Te said.

“Even that particular step was, I think, a step that was taken with great prudence, just to make sure that he understood that there were certain rights that protected him even though he is not an accused in relation to a crime or a felony under Philippine law,” he added.

Does the DOJ qualify as a “competent judicial authority” per the Rome Statute?

Article 59, Paragraph 2 of the Rome Statute states: “A person arrested shall be brought promptly before the competent judicial authority in the custodial State which shall determine, in accordance with the law of that State, that: a) the warrant applies to that person; b) the person has been arrested in accordance with the proper process; and c) the person’s rights have been respected.”

In Duterte’s case, Interpol Manila received the warrant for his arrest hours before his arrival at the Ninoy Aquino International Airport (Naia) on March 11.

READ: DOJ may comply with Interpol on ICC warrant for Duterte’s drug war

Malacañang confirmed it was Prosecutor General Richard Fadullon that served the ICC notification for an arrest warrant against the former president.

Michael Tiu and Ross Tugade of the UP Law Institute of International Legal Studies both interpreted “competent judicial authority” as a court.

However, Tiu also cited the case of Ugandan militia leader Dominic Ongwen, who was turned over to the Central African Republic’s Procurer-général près du Cour d’Appel de Bangui (Prosecutor General of the Court of Appeal of Bangui) and the Procureur de la République (Public Prosecutor) in January 2015.

“That was considered by the pretrial chamber as sufficient in that case,” Tiu said at the colloquium.

Could Duterte be granted interim release?

During Duterte’s first appearance before the ICC last Friday, the tribunal said the former president can apply for interim release.

READ: ICC sets Duterte confirmation of charges hearing Sept. 23

Tiu said the court could grant the interim release if provided with a specific address from which the person in custody’s freedom of movement could be limited based on certain parameters or a set radius from the address.

Meanwhile, former ICC judge Raul Pangalangan cited the case of Kenyan President Uhuru Kenyatta, who returned to his home country after appearing before the ICC.

“If you go by the actual historical record and judicial precedent, I think the court will have to be assured that the release of the accused will not lead to more intimidation of witnesses, more suppression of evidence or the repetition or continuation of the crimes of which the accused is charged,” Pangalangan said.

Can Duterte be granted hospital arrest at another facility given his medical condition?

The Duterte camp highlighted the former president’s health condition since his arrest in Manila, when he was supposedly scheduled for a check-up and a medical condition.

The ex-leader even made his first appearance before the tribunal via video link due to health issues last Friday.

However, during Duterte’s first appearance before the court, Presiding Judge Iulia Motoc said the ICC’s doctors had assessed the former president’s health upon his arrival at the detention center and found him “fully mentally aware and fit.”

READ: Duterte unable to physically attend ICC pre-trial due to health issues

When asked if an arrest at another hospital was possible, Pangalangan said, “I think any needs by the patient, short of grave medical emergencies, can be addressed by existing facilities in the penitentiary.”

Can quad comm testimonies be used?

Last November, Duterte testified before the House of Representatives’ quad committee investigating his administration’s drug war.

Quad committee co-chair and Surigao del Norte Rep. Robert Ace Barbers previously maintained that the panel will not give the ICC access to transcripts of its hearings.

READ: Quad comm won’t allow ICC to access its drug war hearing transcript

However, Tugade said, “In international criminal investigations, in case build-up, you also rely on open-source information and may treat this pending and will undergo a probative value assessment of how they are relevant and how they are able to link to the crimes that are being charged.”

She cited the ICC prosecutor’s request for the warrant to arrest Duterte, which includes “public speeches and statements by Duterte and other members of his administration, including transcripts of such published on the Government of the Philippines’ Presidential Communications Operations Office (PCOO).”

Tugade said the ICC may look at the House quad committee investigation the same way.

“I think it will be used as open-source evidence similar to how they treated the [PCOO] archives. My position is that it can be used as evidence despite the pronouncement of the Philippine government that it will not cooperate,” Tugade said.

What’s next?

Duterte’s confirmation of charges hearing, the next step in the ICC process, was set for September 23, 2025.

READ: British lawyer tapped as Duterte’s lead counsel in ICC case

The former president’s camp tapped British-Israeli lawyer Nicholas Kaufman as lead counsel.

READ: EXPLAINER: What’s next after arrest of Rodrigo Duterte?

In a statement after Duterte’s initial appearance hearing, the ICC said the confirmation of charges procedure will determine whether there is enough evidence to establish grounds to believe the ex-leader committed the crimes he is suspected of.

“If the charges are confirmed, totally or partly, the case will be transferred to a Trial Chamber, which will conduct the subsequent phase of the proceedings: the trial,” the tribunal added.