Why Duterte’s ICC arrest is illegal under both PH and international law

Arguments have been made attempting to justify the arrest and surrender of former President Rodrigo Duterte to the International Criminal Court (ICC). However, this position is flawed both under Philippine law and international jurisprudence. A careful legal analysis exposes the misinterpretations and misapplications of law that underlie this argument.

1. The ICC’s lack of jurisdiction over Duterte

Some interpretations rely heavily on Pangilinan et al. v. Cayetano et al. (G.R. No. 238875, 2021) to argue that the ICC retains jurisdiction over Duterte for acts committed before the Philippines’ withdrawal from the Rome Statute took effect on March 17, 2019. However, this interpretation is legally dubious for the following reasons:

• The Rome Statute is a treaty, and under Article 127(2) of the Statute, withdrawal does not affect obligations that arose prior to withdrawal. However, the obligation to arrest and surrender an individual is a state obligation, not an individual one. With the Philippines no longer a party to the Rome Statute, it is no longer bound to cooperate with ICC procedures.
• The principle of complementarity under Article 17 of the Rome Statute dictates that the ICC can only exercise jurisdiction if the Philippines is unwilling or unable to prosecute the alleged crimes. The Philippine government has repeatedly maintained that its judicial system is functioning and capable of addressing such matters, as upheld by People v. Sereno (G.R. No. 237428, 2018).

2. Violation of Philippine sovereignty and the 1987 Constitution

A fundamental principle in international law is state sovereignty. The 1987 Constitution of the Philippines, Article II, Section 7, explicitly states:

“The State shall pursue an independent foreign policy. In its relations with other states, the paramount consideration shall be national sovereignty, territorial integrity, national interest and the right to self-determination.”

The Supreme Court case Bayan Muna v. Romulo (G.R. No. 159618, 2011) reinforced that treaties and foreign agreements must conform to Philippine sovereignty. Any attempt by a foreign entity, including the ICC, to impose its authority over a Filipino citizen without the express consent of the Philippine government violates this constitutional provision.

Moreover, the arrest and surrender of Duterte, without a domestic judicial process, violates Article III, Section 2 of the Constitution, which states:

“The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge.”

There is no Philippine court-issued warrant for Duterte’s arrest. The ICC’s warrant does not supersede Philippine domestic law. The case of People v. Salazar (G.R. No. 174452, 2012) reaffirms that an arrest without a warrant in the Philippines is illegal unless it falls under the exceptions outlined in Rule 113, Section 5 of the Rules of Criminal Procedure, which include in flagrante delicto and hot pursuit – none of which apply here.

3. RA 9851 does not justify Duterte’s arrest

Some arguments hinge on Republic Act No. 9851 (Philippine Act on Crimes Against International Humanitarian Law, Genocide, and Other Crimes Against Humanity), specifically Section 17, which allows cooperation with international tribunals. However, this provision does not automatically validate Duterte’s arrest for three key reasons:

• RA 9851 explicitly states that any surrender to an international tribunal must conform with “treaties and agreements binding upon the Philippines.” Since the Philippines has withdrawn from the Rome Statute, there is no longer any treaty-based obligation requiring Duterte’s arrest and surrender.
• Section 18 of RA 9851 grants primary jurisdiction to Philippine courts, not foreign tribunals. The Supreme Court ruling in Magallona v. Ermita (G.R. No. 187167, 2011) reiterated that domestic jurisdiction prevails over international commitments if national sovereignty is at stake.
• No Philippine court has issued an order allowing Duterte’s surrender. The government’s unilateral action violates the due process clause (Article III, Section 1 of the Constitution), which requires a judicial determination before any deprivation of liberty.

4. ICC arrest warrants and Interpol red notices do not bind the Philippines

It has been argued that Duterte’s arrest was warranted due to Interpol involvement. However, an Interpol Red Notice is not an international arrest warrant and does not oblige any country to act upon it, as confirmed in the case of Sandiford v. United Kingdom (European Court of Human Rights, 2014).

Additionally, in The Government of Hong Kong v. Ng Kung Siu (Hong Kong Court of Final Appeal, 1999), the court ruled that no state is legally bound to enforce an Interpol Red Notice without domestic legal procedures. Thus, Duterte’s arrest, based solely on ICC and Interpol action, has no legal basis in Philippine law.

5. The principle of pacta sunt servanda is misapplied

Some arguments invoke pacta sunt servanda, the principle that treaties must be honored. However, this principle only applies to states still bound by the treaty. Since the Philippines has formally withdrawn from the ICC, the government is no longer bound to enforce its obligations under the Rome Statute.

The International Court of Justice (ICJ) in South West Africa Cases (Ethiopia and Liberia v. South Africa, 1966) affirmed that a state cannot be compelled to honor a treaty it has withdrawn from, absent specific legal obligations.

Duterte’s arrest is unlawful under Philippine and international law

The attempt to justify Duterte’s arrest as a matter of international justice is a clear misrepresentation of legal principles. Philippine law, as reinforced by the Constitution, Supreme Court rulings and RA 9851, does not authorize the unilateral surrender of Duterte to the ICC.

Additionally, international jurisprudence – including ICJ, European Court of Human Rights, and various national courts – consistently upholds state sovereignty over international tribunal requests when treaty obligations do not exist.

This legal analysis demonstrates that justifications for Duterte’s arrest are misleading, unconstitutional, and detrimental to Philippine sovereignty. Upholding the rule of law means respecting due process, national jurisdiction, and the Philippine Constitution—not submitting to foreign pressure at the expense of legal integrity.

Conclusive analysis

If Duterte is to face charges, it must be under Philippine law and in Philippine courts, not under the jurisdiction of a tribunal that no longer holds authority over the Philippines.

The law must prevail.

Atty. Arnedo S. Valera is the executive director of the Global Migrant Heritage Foundation and managing attorney at Valera & Associates, a US immigration and anti-discrimination law firm for over 32 years. He holds a master’s degree in International Affairs and International Law and Human Rights from Columbia University and was trained at the International Institute of Human Rights in Strasbourg, France. He obtained his Bachelor of Laws from Ateneo de Manila University. He is a professor at San Beda Graduate School of Law (LLM Program), teaching International Security and Alliances.

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