By Atty Howard M. Calleja
As of this writing, former President Rodrigo Duterte is en route to The Hague in the Netherlands via a chartered flight. He was taken into police custody shortly after his arrival in Manila from Hong Kong by virtue of a warrant accusing him of crimes against humanity over his deadly “war on drugs” issued by the International Criminal Court (ICC).
The ICC’s investigation into the anti-drugs killings covers alleged crimes committed from November 2011 to June 2016, including extrajudicial killings in Davao City, as well as across the country during his presidency up until 16 March 2019, when the Philippines withdrew from the court.
This 15-page ICC arrest warrant, for Rodrigo Duterte, made public by the court, outlines the accusations against the former Philippines president over killings in his war on drugs. The ICC judges also stipulated that while the Philippines officially withdrew from the ICC in 2019, the alleged crimes in the warrant took place while Manila was still a member, so the court has jurisdiction over them.
Over and above all this political noise, we ask may ask: Is this arrest lawful?
Yes. In the case of Pangilinan, et al. vs. Cayetano (G.R. No. 238875), the Supreme Court answered this question- that the International Criminal Court (ICC) retains jurisdiction over acts committed prior to the effectiveness of the withdrawal. This aligns with the principle that withdrawal does not negate obligations or liabilities incurred during the time the treaty was in effect. Furthermore, even after the withdrawal, the Philippines continues to uphold domestic laws that reflect the substantive provisions of the Rome Statute. Republic Act No. 9851, known as the Philippine Act on Crimes Against International Humanitarian Law, Genocide, and Other Crimes Against Humanity, remains in force, ensuring that the principles of the Rome Statute are still integrated into Philippine law, as it was enacted before the Statute’s ratification.
Furthermore, residual obligations must still be honored even after a contract has ended. Duterte’s crimes against humanity case involves actions that occurred while the Philippines was still a member of the ICC. Our obligation to cooperate under Article 127 of the Rome Statute is already established at the preliminary stage, meaning that jurisdiction remains in effect, regardless of whether the withdrawal had taken effect before the ICC’s Pre-Trial Chamber granted authorization. Moreover, even if the government now acts based on the 2005 Interpol-ICC cooperation agreement, Interpol may still validly request the Philippines’ cooperation in executing the arrest warrant.
Why raise the issue of human rights when, during his time in office, Duterte consistently disregarded them by ordering killings without due process? And why bring up sovereignty when Duterte seemed willing to give up our rights to the West Philippine Sea, practically offering them to Xi Jinping as one of his puppets? Mr. Rodrigo Duterte and his supporters should “put their money where their mouth is” by backing up their current arguments with the actions they have taken in the past, rather than merely talking about them now.
The arrest of Mr. Duterte represents a crucial step toward justice for the thousands of lives lost in the Philippines’ War on Drugs, where many innocent civilians were killed without due process. These individuals, who had no opportunity to defend themselves, now have a chance to see justice served. With Mr. Duterte finally facing the consequences of his actions in court, it is hoped that the families of the victims can find some measure of peace, and the legacy of those unjustly killed can be honored through accountability.
Editor’s Note:
Atty. Howard “Howie” Calleja is a Professor of law, Masters of Law, (LLM) Duke University, Certificate in International Law from Hague Academy of International Law, Juris Doctor (JD) Ateneo de Manila University. He is a columnist of The Philippine Business and News.
