Legal Framework Governing the Arrest
1. Obligation to Cooperate with the ICC
Senator Marcos asserts that the Philippines had no legal obligation to arrest Duterte and surrender him to the ICC, citing the country’s withdrawal from the Rome Statute in 2019. However, this claim requires closer scrutiny under international law and Philippine legal obligations.
The Philippines ratified the Rome Statute, the treaty establishing the ICC, on August 30, 2011, and remained a state party until its withdrawal took effect on March 17, 2019. Article 127 of the Rome Statute governs withdrawal and states that it "shall not affect any cooperation with the Court in connection with criminal investigations and proceedings in relation to which the withdrawing State had a duty to cooperate and which were commenced prior to the date on which the withdrawal became effective." The ICC’s investigation into Duterte’s alleged crimes against humanity—specifically, murders linked to his "war on drugs"—began in 2018, well before the withdrawal took effect. Thus, the Philippines retained an obligation to cooperate with the ICC regarding crimes allegedly committed during its membership period (2011–2019), which covers Duterte’s tenure as mayor of Davao City and his presidency from 2016 onward.
Moreover, Republic Act No. 9851 (the Philippine Act on Crimes Against International Humanitarian Law, Genocide, and Other Crimes Against Humanity), enacted in 2009, domesticates international humanitarian law and explicitly recognizes crimes against humanity, such as murder, as punishable offenses. Section 17 of RA 9851 mandates cooperation with international tribunals, including the ICC, stating that "Philippine authorities shall cooperate with any investigation or prosecution conducted by an international tribunal." This law remains in effect despite the Philippines’ withdrawal from the Rome Statute, reinforcing the legal basis for assisting the ICC.
2. The Arrest Process and Due Process Concerns
Senator Marcos alleges "glaring violations" of Duterte’s rights, including the absence of a Philippine court-issued warrant and non-compliance with constitutional safeguards under the 1987 Philippine Constitution, particularly Article III, Section 2, which protects against warrantless arrests except in specific circumstances (e.g., in flagrante delicto or hot pursuit).
Duterte’s arrest on March 11, 2025, at Ninoy Aquino International Airport was executed pursuant to an ICC arrest warrant transmitted via Interpol, which issued a Red Notice. Under Philippine law, the validity of such an arrest hinges on whether it aligns with international commitments and domestic procedural requirements. The Philippine Supreme Court has addressed similar issues in *Pangilinan v. Cayetano* (G.R. No. 238875, December 10, 2018), where it ruled that the Philippines’ withdrawal from the ICC did not absolve it of obligations arising from prior commitments, including cooperation in ongoing investigations. The Court emphasized that international treaties, once ratified, form part of the "law of the land" under Article II, Section 2 of the Constitution, and obligations persist unless expressly repudiated by subsequent legislation.
While a Philippine court did not issue a domestic warrant, the arrest was facilitated under the Interpol framework, which the Philippines is bound to honor as a member state. Executive Order No. 459 (1998) and the Philippine National Police’s adherence to Interpol protocols authorize law enforcement to act on Red Notices, treating them as requests for provisional arrest pending extradition or surrender. Article 89 of the Rome Statute further supports this, allowing the ICC to request provisional arrest through Interpol when a warrant has been issued, as occurred here on February 10, 2025, per the ICC’s Pre-Trial Chamber I.
The claim of a warrantless arrest violating due process overlooks the exceptional nature of ICC proceedings. Article 59(1) of the Rome Statute requires a state party (or cooperating state) to "immediately take steps to arrest the person" upon receipt of an ICC warrant, with Article 59(2) mandating only that the arrested person be brought before a competent judicial authority "in accordance with the law of that State" to confirm identity and consent to surrender. In the Philippines, this aligns with the Revised Rules of Criminal Procedure (Rule 113), which, while typically requiring a warrant, does not preclude arrests based on international legal obligations when supported by executive action, as affirmed by President Ferdinand Marcos Jr.’s directive to comply with Interpol’s request.
3. Constitutional Safeguards and Political Motivation
Senator Marcos’ assertion that the arrest was a political maneuver by the Marcos administration raises questions of motive but does not inherently invalidate its legality. The Philippine Constitution guarantees liberty and due process, yet these rights are not absolute and must be balanced against international obligations. In *Government of the United States v. Purganan* (G.R. No. 148571, September 24, 2002), the Supreme Court upheld the validity of provisional arrests for extradition purposes even without prior judicial review, provided subsequent safeguards (e.g., a hearing) are afforded. Duterte was reportedly informed of the charges and transferred to The Hague within hours, limiting immediate domestic judicial recourse. However, his initial appearance before ICC judges on March 14, 2025, via video link, satisfied Article 60 of the Rome Statute, ensuring he was informed of the charges and his rights under ICC procedure.
The senator’s claim that the administration "categorically decided" to assist the ICC prior to March 11 suggests premeditation, but this aligns with the executive’s prerogative in foreign affairs under Article VII, Section 1 of the Constitution. President Marcos Jr.’s statement that the arrest fulfilled Interpol commitments reflects a policy choice within his authority, not a legal overreach.
Validity and Legality of Detention at the ICC
Duterte’s detention at the ICC detention center in The Hague is lawful under international law. Article 55 of the Rome Statute governs pre-trial detention, requiring only that it be "in accordance with the law of the requested State" during surrender and ICC procedures thereafter. The surrender on March 12, 2025, followed his arrest, and his detention complies with ICC standards, as confirmed by the court’s medical assessment deeming him fit to stand trial despite defense claims of ill health.
The Philippines’ cooperation, while contentious given its non-membership in the ICC, is consistent with residual obligations under the Rome Statute and RA 9851. The ICC retains jurisdiction over crimes committed during the Philippines’ membership (2011–2019), as affirmed in its 2021 authorization to investigate Duterte’s drug war. This jurisdiction is not extinguished by withdrawal, a principle upheld in international practice (e.g., Burundi’s failed attempt to halt ICC probes post-withdrawal in 2017).
Conclusion
The arrest and detention of Rodrigo Duterte are legally grounded in the Philippines’ pre-withdrawal obligations under the Rome Statute, domestic laws like RA 9851, and Interpol protocols. While Senator Marcos highlights procedural lapses—such as the lack of a domestic warrant—these do not render the arrest unlawful given the international framework at play. Due process concerns, while valid in a domestic context, are mitigated by the ICC’s own safeguards and the Philippines’ residual duty to cooperate. Politically motivated or not, the arrest withstands legal scrutiny, marking a significant, albeit divisive, step toward accountability for alleged crimes against humanity."
Grok 3 AI app
