[In memoriam Pope Francis, the People’s Pope, gratias et requiescat in pace. In these most troubled and uncertain times, we have lost the only world leader who was a viable counterweight to problematic world and national leaders like Trump, Putin, Xi Jinping, Netanyahu, and a certain Duterte – who, even before becoming Philippine President, once cursed the Pope for causing heavy traffic during a 2015 papal visit to Manila (and some of Duterte’s Filipino audience typically laughed) but for which he (Duterte) later apologized.] 

Perhaps forgive also this later-day or belated joining the fray of what former Philippine Chief Justice (CJ) Artemio Panganiban described as “Comments long and short, wide and narrow, partisan and neutral on the indictment for the crime against humanity of mass murder, arrest in the Philippines, airlift via a chartered jet to, and detention in, The Netherlands of former president Rodrigo R. Duterte had been essayed, broadcasted, debated, and gossiped ad nauseam.” As if more of that is needed. But this is, among others, a matter of putting one’s views on the record for posterity and to possibly contribute whatever little more to intelligent deliberation, even if these thoughts do not really matter much in the overall scheme of things. I have however benefitted in my study of this matter from several particularly good views expressed or reported in the “free market of ideas” in various media and public discussion platforms, and give them due credit.

A good friend former ICC Judge Raul Pangalangan for his part told me, “To start with, I’m also impressed with whoever unearthed this male captus, bene detentus Latin maxim. Pinoys pa naman really love Latinisms. Hits both the Pinoy’s roots in Catholicism, and his fixation for legal technicality… Precisely, I think that’s the level [the philosophical and moral] at which we should tackle this. The legalistic minutiae does not confront the question of justice whether both for Duterte or his victims. Kaya lang, Pinoys love the ‘effing’ technicalities, and love it when lawyers joust with Latin slogans.” I am almost tempted to say mea culpa.

 Male Captus, Bene Detentus

The maxim male captus, bene detentus is said to express the principle that a court may exercise jurisdiction over an accused person regardless of how that person has come into the jurisdiction of that court, unless he/she was seriously mistreated or there otherwise was a gross violation of his/her human rights or that proceeding with the case would violate the fundamental principle of due process of law. It is said to have been consistently applied before international courts (see the Prosecutor vs. Dragan Nikolic 2002 case in the International Criminal Tribunal of the former Yugoslavia) and national courts (see the Ker vs. People of the State of Illinois 1886, Frisbie vs. Collins 1952, and U.S. vs. Alvarez-Machain 1992 cases in the U.S. Supreme Court).

Former Philippine Supreme Court (SC) Justice Adolfo Azcuna believes that the ICC will follow male captus, bene detentus in the ICC Duterte Case, even as Azcuna believes that while “the warrant of arrest is legal. However, his surrender is not.” Yes, call a spade a spade, as you see it. In Azcuna’s view, Duterte’s surrender is not legal because he was not brought before a Philippine court pursuant to the RS Article 59 on “Arrest Proceedings in the Custodial State” that Azcuna says was “brought back” into the Philippine Republic Act No. 9851 (RA 9851) Section 17 second paragraph. This provision allows that “the relevant Philippine authorities may surrender… suspected or accused persons in the Philippines to the appropriate international court” that “is already conducting the investigation” of “a crime punishable under this Act,” such as the CAH of Willful Killing which is equivalent to the CAH of Murder in the RS.

However, a reputable 2008 Liverpool Law Review article on “Mala Captus Bene Detentus and the Right to Challenge the Legality of Arrests Under the ICC Statute” has come to “a conclusion that there is no uniform state or international practice and that the ICC Statute does not resolve the status of the doctrine nor does it regulate the effects of abuse of process against accused persons.” This despite the 2006 ICC Appeals Chamber Judgment in Prosecutor vs. Thomas Lubanga Dyilo that dismissed the defense challenge to the jurisdiction of the Court because it found, among others, no showing of breaches of the rights of the suspect or the accused in the process of bringing him to justice for his subject war crimes. Though similar in several aspects of the issues of validity in the arrest of the suspect by the custodial State and in its surrender of the same to the ICC within 24 hours, as may be raised in the case of Duterte, what is clear in the case of Dyilo was that after his arrest by Congolese authorities pursuant to a ICC warrant, he was brought a competent judicial authority, albeit a military court, of the Democratic Republic of the Congo (DRC), before its authorities surrendered him to the ICC. And so, the case of Duterte, particularly on the issue of not being brought promptly before the competent judicial authority in the custodial State the RP, may be a case or issue of first impression for the ICC to this time resolve the status of the male captus, bene detentus doctrine in the ICC. Exspectate (“Abangan”).

The ICC will resolve any challenge to the legality of the arrest and surrender of Duterte using as main parameter the RS itself, its Rules of Procedure and its own jurisprudence, if any, consistent with internationally recognized human rights, as provided in RS Art. 19 on “Applicable Law.” On the other hand, the same subject challenge by the Duterte family habeas corpus petitions currently pending before the SC would be dealt with using as main parameter the Philippine Constitution, also its own jurisprudence, and relevant Philippine laws. For one, the SC does not subscribe to male captus, bene detentus. In Justice Azcuna’s view, “there is a violation and there will be consequences for that violation” to be ruled by the SC. It remains to be seen whether the SC, in case it rules the Duterte arrest and surrender to be illegal, would order the relevant Philippine authorities to remedy this by causing the return or repatriation of Duterte to his Philippine abode (“bring him home”) from ICC custody. Needless to say, the SC has no authority over the ICC, only over relevant Philippine authorities. Two courts, one international, the other national, different parameters, possibly different or the same rulings on the legality of the arrest and surrender of Duterte, either way with likely different consequences, as the parties are different in the two courts. The Philippine government and its relevant authorities are not parties in the ICC Duterte Case, as they are in the SC habeas corpus cases.

It is not “nonsense,” as some say, to raise or discuss the issue of the validity of Duterte’s arrest and surrender. This issue of due process and human rights for one suspect, who happens to be the principal “co-perpetrator” or mastermind, is still important for the legitimacy or acceptability of the whole process of bringing him to justice. Though the ICC may not be bound by whatever SC ruling, this would still carry a certain weight in the overall scheme of things, which is not limited to the legal realm. At the same time, the issue or cause of justice for both Duterte and the thousands of victims of his “war on drugs” is paramount over, is more important than, the validity of his arrest and surrender. This cannot but be, at its essence, the proper or proportionate balancing of their (the two main parties’) respective grievances, taking everything into consideration. For the ICC, Justice Azcuna expects that “They will balance the legality of the arrest with the need to prosecute someone for very serious offenses under international law. And in their view the balance weighs in favor of prosecution. They will prosecute, notwithstanding the violation of the procedure in the surrender.”

And that is only “right, just and necessary,” to use a formulation by UP anthropology professor Michael Tan. Some non-lawyers like him are among those who have a better moral sense of the issue, better than the so-called legal experts, whether lawyers or not. Stated otherwise, justice is too important to be left only to the lawyers. Multi-disciplinary perspectives not limited to law had best bear on the issues, whether procedural or substantive, in the Duterte case.

Before we go deeper into and possibly get lost in the “legalistic minutiae” of the Duterte arrest and surrender validity issue and also the prejudicial more “pivotal issue” of ICC jurisdiction over the Duterte drug war CAH, I wish to also share some of non-lawyer common sense close to me, from my own three-generation family, including a 15-year old junior high school grandson.

 Bene Ad Judicium Teneo

That is, “properly held for trial” and, if we may add, for judgment and justice. Note no longer just bene detentus (“properly detained”) but the rest of the whole process of rendering procedural and substantive justice for both the perpetrator/s and the victims. What follows are actually expressions of the common sense of this from several non-lawyer family members in answer to my question “Does the cause of or need for justice and accountability for the thousands of victims of the Duterte drug war justify or supersede any irregularity, illegality or invalidity in his arrest and surrender to the ICC? Do the ends justify the means? What if the legal is not moral? Or the moral is not legal?” Here are the answers representing three generations:

1 — “Do the ends of justice and accountability justify the means of the questioned tactics undertaken to arrest him? Is this Machiavellian?... Any irregularity in the arrest, even if it was facilitated by a political rival for vested interests does not detract from the more important concern of bringing him to face the charges of crimes against humanity. Justice and accountability are far weightier concerns than the technicality of how he was arrested. Besides, there was a warrant even if it was served late, and he will be given a chance to defend himself, unlike his thousands of victims who were not given that same opportunity… Does this not set a precedent for similar arrests in the future for others by those in power to eliminate political rivals? Yes, this could be a precedent but only if a person were also charged with similar heinous crimes…. What is legal is not necessarily moral, and what is moral is not necessarily legal… Take the case of Jean Valjean stealing a loaf of bread for his starving family in Les Miserables. Although stealing is wrong and should be punished, the ones stolen from could spare the bread and give even more. Valjean was struggling for his family’s survival, victims of a system, and was not a criminal per se but became kind and generous later. Duterte is nothing like that, he believed in killing with impunity from his position of power.”

2 – “If it’s somehow determined to be illegal or procedurally invalid, I don’t believe that he should be released. I don’t know about the legal aspects, but I would think that if there’s evidence against him, then there can be a ‘redo’ of the arrest following proper procedure, etc., and that he should still be tried and held accountable. What little I know of the legal aspects from movies, etc., is that people really can get off on technicalities, but I think every legal avenue should be explored, especially by international bodies, as nothing would be resolved by trying him in the Philippines (wala nang hope if he’s brought back here). Morally, yeah, the cause or need for justice and accountability supersedes any minor procedural invalidities (for me may range yang illegality — if it’s just a matter of procedure, then ayusin retroactively). Pero dangerous yung sweeping statement about justice superseding illegality kasi baka kahit ano ay pwedeng i-justify diyan. In this specific case, the crimes against humanity outweigh what would likely be very minor irregularities, not major illegalities big enough to invalidate the arrest.”

3 – “Morally, I don’t think he should be sent back if the arrest is illegal. He’s already at the ICC, there’s already a hearing scheduled for September, and he himself has said that he’s willing to face the court and answer for his crimes. The thousands killed in his drug war didn’t get anything close to the due process he gets in the ICC. What’s one slightly illegal arrest when the man in question was arrested to answer for thousands of extra-judicial killings? The argument that the ICC’s actions are unnecessary because he can just be tried in a Philippine court doesn’t work anymore, we’ve tried that for years, but to no avail. Nitpicking the legality of an arrest in which authorities had to bend over backwards to make it as comfortable for him as possible is only going to slow this operation down when we need to be on double-time. He’s already 80 years old and can die any minute. This will only serve as yet another example of how true justice is only for the bourgeoisie [referring to the rich and powerful]. Walang laban si Kian, there’s no saving him from the lack of due process and the flawed procedures of the PNP, but with Duterte, every little detail has to be nitpicked. The justice system should be used to prosecute the powerful and influential people at the top of our tatsulok [referring to our social pyramid], not to protect them. Questioning whether or not to release him if the arrest is determined to be illegal is the same as questioning whether we prioritize the comfort of a power-hungry murderer or justice for the thousands killed from 2011 to 2019. I don’t know much about how this is meant to be handled legally, but I would rather prioritize the latter.”

I concur. Common sense or no so common good sense of balance and justice? Those non-lawyer three-generation family member answers make me proud. Their gut feeling views are similar to those of another non-lawyer, National University of the Philippines philosophy and humanities professor Jose Mario de Vega, who wrote these lines for a proper or proportionate balancing of interests in the Duterte case under an opinion piece titled “Light and justice vs. darkness and tyranny” (translated as Liwanag at katarungan laban sa kadiliman at paniniil):

… It should side with the oppressed, not the oppressor. For it to have moral legitimacy and ethical ascendancy, it must side with the victims and not with rights violators…. The struggle in the Philippines now and in the world is not whether one is pro-Duterte or pro-Marcos, pro-Trump or anti-Trump. Rather, it is about whether one is for justice, freedom, and the dignity of humanity.

As for “a ‘redo’ of the arrest following proper procedure,” Justice Azcuna noted that the last March 14 initial hearing of the Duterte case before the ICC Pre-Trial Chamber (PTC) 1 “was an attempt to cure the deficiency of the Article 59 procedure because the three judges in the hearing simply did what the local court would have done.” And this was, under RS Art. 59(2), to “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 fact, the opportunity not given by the relevant Philippine authorities to Duterte to exercise “the right to apply… for interim release pending surrender” under Art. 59(3) and (4) will also be “redone” before the PTC in the coming days.

Given what has transpired as regards RP cooperation with its arrest and surrender of Duterte to the ICC, and its likely proceeding with his trial, should the same modus or scenario apply to his presumptive co-perpetrators like incumbent Senator Bato dela Rosa? Likely no longer if the ICC and more so the SC rule that the RS Art. 59 on “Arrest proceedings in the custodial State” was violated in Duterte’s case, and that this should no longer happen in any further RP executions of any subsequent expected ICC WOAs for that same Duterte soon to be “et al.” case. It must be noted that in the WOA for Duterte, the PTC found that he, “even though no longer the President of the Philippines, appears to wield considerable power. Mindful of the resultant risk of interference with the investigations and the security of witnesses and victims…” This may not be the case with other lesser co-perpetrators. But more further below on the applicability of RS procedural safeguards for persons arrested pursuant to an ICC WOA.

 Male trado

That is, “wrongly surrendered,” as distinguished from male captus (“wrongly arrested”). We go by Justice Azcuna’s view that basically Duterte’s arrest (not just the ICC WOA) was legal, but his surrender to the ICC was not, for violation of the RS Art. 59 procedure. We now go into the “legalistic minutiae.” Though RS Art. 59 is titled “Arrest proceedings in the custodial State,” it also covers interim release and surrender. We now hereunder quote its relevant provisions: (underscorings supplied)

1. A State Party which has received a request for provisional arrest or for arrest and surrender shall immediately take steps to arrest the person in question in accordance with its laws and the provisions of Part 9 [International Cooperation and Judicial Assistance].

2. 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.

3. The person arrested shall have the right to apply to the competent authority in the custodial State for interim release pending surrender.

4. In reaching a decision on any such application, the competent authority in the custodial State shall consider whether, given the gravity of the alleged crimes, there are urgent and exceptional circumstances to justify interim release and whether necessary safeguards exist to ensure that the custodial State can fulfil its duty to surrender the person to the Court. It shall not be open to the competent authority of the custodial State to consider whether the warrant of arrest was properly issued in accordance with article 58, paragraph 1 (a) and (b).

xxx

7. Once ordered to be surrendered by the custodial state, the person shall be delivered to the Court as soon as possible.

Note that while par. 1 refers to “A State Party,” the rest of Art. 59 refers to “the custodial State” which need not be a State Party – like the RP status at the time of the Duterte arrest and surrender. Note also that while par. 2 refers to “the competent judicial authority,” the succeeding paragraphs refer to “the competent authority” which need not be judicial, and may thus be executive or administrative.

There is really no issue about the legality of the ICC WOA. There may be some issue about the legality of RP cooperation with the ICC in the execution of that WOA and in the surrender of Duterte to the ICC. We will deal with the cooperation issue shortly below. But the RP execution of the ICC WOA for Duterte, particularly the arrest itself, as televised, appears to be “in accordance with the proper process… in accordance with the law of that State [the RP].” Duterte, when placed under arrest by PNP-CIDG Director police major general Nicolas Torre III, was informed of the ICC WOA and its charge against him, “informed of the nature and cause of the accusation against him,” and was read the usual Miranda rights. That constituted the Duterte arrest upon his Hongkong flight’s arrival at the NAIA airport in Manila in the morning of March 11. But thereafter, contrary to the above-quoted Art. 59(2), Duterte was definitely not “brought promptly before the competent judicial authority” to determine the therein indicated three matters pertaining to his arrest. After a few hours in the airport VIP lounge where Duterte was held under arrest, he was brought instead to Villamor airbase where he was held until close to midnight of the same day March 11 for his special RP chartered transfer flight to the Netherlands for surrender to the ICC in The Hague the following day March 12.

For that surrender of Duterte to the ICC, the RP invokes RA 9851, Sec. 17 second paragraph: (underscorings supplied)

In the interest of justice, the relevant Philippine authorities may dispense with the investigation or prosecution of a crime punishable under this Act if another court or international tribunal is already conducting the investigation or undertaking the prosecution of such crime. Instead, the authorities may surrender or extradite suspected or accused persons in the Philippines to the appropriate international court, if any, or to another State pursuant to the applicable extradition laws and treaties.

Note that this provision speaks only of “surrender” not of “arrest.” But of course surrender is premised on having physical custody of the “suspected or accused persons in the Philippines” who must have been arrested or detained here.

Note further that the same provision does not itself require, like the RS Art. 59(2) does, that suspected or accused persons in the Philippines “shall be brought promptly before the competent judicial authority” before “the relevant Philippine authorities” surrender them “to the appropriate international court.” The RP also currently asserts that, having withdrawn from the RS, it is no longer a State Party with the obligation to cooperate with the ICC or to apply the RS, and that there was no need for a court order since Duterte was being surrendered to the ICC, not extradited to the Netherlands. No less than President Marcos Jr. stated, right after the chartered transfer flight carrying Duterte left the country, that the RP cooperation was with the International Criminal Police Organization (INTERPOL) through which the ICC WOA was coursed, but not with the ICC itself.

YET, one relevant Philippine authority, the executive Department of Justice (DOJ), through Prosecutor General Richard Anthony Fadullon, issued an undated Certification that: (boldface in the original, underscorings supplied)

The arrest was carried out in accordance with Philippine laws and then provisions of Part 9 of the Rome Statute. The following determinations were made by the Department of Justice, as competent authority of the custodial State, upon presentation of the arrested individual:

1. The warrant of arrest issued by the ICC applies to Rodrigo Roa Duterte;

2. The arrest was conducted in compliance with due legal process.

3. The rights of the arrested person were duly observed and respected throughout the proceedings.

The custodial state has determined to deliver Rodrigo Roa Duterte to the ICC, in accordance with Article 59(4) of the Rome Statute. In making this determination, the custodial State considered the gravity of the alleged crimes, the absence of urgent and exceptional circumstances justifying interim release, and the necessity of ensuring that the Republic of the Philippines fulfills its duty to surrender the person to the ICC. Moreover, sufficient safeguards were in place to prevent any risk of escape or interference with the proceedings.

In accordance with Article 59(7), the arrested individual shall be immediately transported to The Hague and placed in the custody of the International Criminal Court.

This certification is issued for record and compliance purposes.

This DOJ Certification is therefore an authoritative record of RP cooperation with the ICC, no mention even of the INTERPOL, and more than that, purported “compliance” with the RS, as it no less cites Part 9 and Articles 59(4) and (7). The RP or at least the executive department is estopped or bound by this DOJ Certification. The problem with this “compliance” is that the DOJ “as competent authority of the custodial State,” is not “the competent judicial authority” to whom “A person arrested shall be brought promptly before” under Art. 59(2) to determine the three indicated matters regarding his/ her arrest.

A judicial authority is presumably required to check and balance the executive authorities’ execution of the ICC WOA and surrender of the arrested person to the ICC. Stated otherwise, the executive department which executed this cannot be expected to fairly or independently check itself about its own execution. The DOJ appears to have arrogated unto itself the status of “the competent judicial authority.” It is more logical that “the competent judicial authority” in RS Art. 59(2) for determining the propriety of the arrest is the same as “the competent authority” in the immediately succeeding Art. 59(3) and (4) for considering any application for interim release pending surrender. And even if “the competent authority” referred to in Art. 59(3) and (4) can be assumed by the DOJ, there is no showing that Duterte was accorded the opportunity to exercise “the right to apply… for interim release pending surrender.”

As for the DOJ’s certification of “upon presentation of the arrested individual” to it, it appears that Duterte was not “brought promptly before” the DOJ but rather that it was the DOJ, as part of the arresting team, that brought itself promptly before Duterte while he was held at the airport VIP lounge after his arrest. “The relevant Philippine authorities” led by President Marcos Jr., Executive Secretary Lucas Bersamin (a former CJ) and Justice Secretary Jesus Crispin Remulla, though obviously aware of RS Art. 59(2), conceivably made a judgment call to no longer bring Duterte before “the competent judicial authority,” whether this be the SC or a Regional Trial Court, the latter having “original and exclusive jurisdiction” over RA 9851 cases, including for the CAH of Willful Killing (or Murder). They instead opted, as the DOJ certification shows, to go for the DOJ “as competent authority of the custodial State” for “compliance purposes” with the RS Art. 59. But does this pass muster as substantial compliance with the RS? Abangan again the ICC and SC rulings, if any, on this

Especially in the SC, would the old 1989 Marcos vs. Manglapus ruling, as pointed out by Atty. Bryan Dennis Gabito Tiojanco now a project associate professor at the University of Tokyo, justify that executive department judgment call to no longer bring Duterte before a local court as a RS procedural safeguard for persons arrested pursuant to a ICC WOA? Just like the WOA against Duterte noted that he, “even though no longer the President of the Philippines, appears to wield considerable power. Mindful of the resultant risk of interference with the investigations…,” was there an executive department risk assessment pointing to Duterte’s “capacity to stir trouble”? This appears to be validated by the immediate and continuing blowback by his supporters against his arrest and surrender to the ICC. From the Manglapus case ruling, Atty. Tiojanco notes:

… And considering “the capacity of the Marcoses to stir trouble” due to “the fanaticism and blind loyalty of their followers in the country,” then President Aquino could use her [residual presidential] powers as protector of the peace to prevent their return. Ironically, the same argument may be made to justify why Duterte was hastily surrendered to the ICC. He has the capacity to stir trouble by rallying his loyal followers in the country (imagine if his plane had landed in Davao, not Manila). The decision to forego bringing him to court might have been necessitated by this extraordinary circumstance.

“This case is unique,” said the court in Marcos v. Manglapus. “It should not create a precedent.” The same can be said about Duterte’s arrest and surrender. Ordinarily, citizens should enjoy stronger due process safeguards before they are surrendered to an international tribunal such as the ICC.

The Manglapus case ruling, even if “unique… should not create a precedent,” may still be persuasive to the SC, but not necessarily to the ICC, in ruling on the legality of Duterte’s arrest and surrender.

On the executive department’s “decision to forego bringing him to court” promptly after his arrest and before he “was hastily surrendered to the ICC” to avoid the complications from his “capacity to stir trouble by rallying his loyal followers in the country” as “necessitated by this extraordinary circumstance,” it may not be amiss to note that in the Dyilo Case in the ICC, the whole RS Art. 59 procedure, including bringing Dyilo promptly before “the competent judicial authority,” albeit a military court, in the DRC, and finally surrendering him to the ICC, was complied with by the relevant DRC authorities all within 24 hours. So, it can be done. But of course, Dyilo was apparently not a Duterte in terms of having residual ex-presidential power with “the capacity to stir trouble.”

Still in the SC, for possible analogous consideration would be Philippine criminal law, particularly the Revised Penal Code’s famous Art. 125 on “Delay in the delivery of detained persons to the proper judicial authorities,” where detention is “for some legal ground.” And in RA 9851 itself, its Sec. 16 provides for the “Suppletory Application of the Revised Penal Code and Other General or Special Laws.” This may partly fill the noted gap in Sec. 17 of not providing that suspected or accused persons in the Philippines “shall be brought promptly before the competent judicial authority” before “the relevant Philippine authorities” surrender them “to the appropriate international court.” And Sec. 15 on “Applicability of International Law” may yet also help fill that gap.

 The Issue of RP-ICC Cooperation and RS Application

It would seem that this is no longer an issue, given the afore-quoted DOJ Certification indicating RP cooperation with the ICC in the Duterte arrest and surrender, and for this, avowed “compliance” with the RS, including citation of its Part 9 and Articles 59(4) and (7). But there are also President Marcos Jr.’s and Justice Secretary Remulla’s relevant statements thereafter that the RP had no obligation to cooperate with the ICC as it has already withdrawn from the RS more than 6 years ago effective 2019. Ano ba talaga, kuya? This should have already been deemed clarified (or has it?) by the SC ruling in the case of the Philippine withdrawal from the ICC, Pangilinan vs. Cayetano, G.R. No. 238875, March 16, 2021: (underscorings supplied)

Withdrawing from the Rome Statute does not discharge a state party from the obligations it has incurred as a member. Article 127(2) provides:

A State shall not be discharged, by reason of its withdrawal, from the obligations arising from this Statute while it was a Party to the Statute, including any financial obligations which may have accrued. Its withdrawal 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, nor shall it prejudice in any way the continued consideration of any matter which was already under consideration by the Court prior to the date on which the withdrawal became effective. (Emphasis [italics by SC] supplied)

A state party withdrawing from the Rome Statute must still comply with this provision. Even if it has deposited the instrument of withdrawal, it shall not be discharged from any criminal proceedings. Whatever process was already initiated before the International Criminal Court obliges the state party to cooperate.

Until the withdrawal took effect on March 17, 2019, the Philippines was committed to meet its obligations under the Rome Statute. Any and all governmental acts up to March 17, 2019 may be taken cognizance of by the International Criminal Court.

On the basis of this SC ruling, the RP, although no longer a State Party to the RS, was obliged by Art. 127(2) to cooperate with the 7 March 2025 ICC WOA for Duterte because this was “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.” This “duty to cooperate” is among what are referred to as “residual obligations” of the withdrawing State like the RP even after its withdrawal from the RS. The SC further clarifies that “Whatever process was already initiated before the International Criminal Court obliges the state party to cooperate.” The phrase “whatever process” is broad enough to cover the informal preliminary examination that the Office of the Prosecutor (OTP) started on 8 February 2018. And this was more than one year before the effectivity of the RP withdrawal from the RS on 17 March 2019.

The SC ruling statement that “Until the withdrawal took effect on March 17, 2019, the Philippines was committed to meet its obligations under the Rome Statute” should not be taken in isolation to mean that, after the withdrawal took effect on March 17, 2019, the RP was/ is no longer committed to meet its obligations under the RS. No, the withdrawing State the RP still has residual obligations thereunder.

Incidentally, the Pangilinan unanimous Decision’s dispositive portion does not categorically uphold the RP (through then President Duterte) withdrawal from the RS. After 100 pages of discussion, the SC (through the ponente Associate Justice Marvic Leonen) dismissed the consolidated three Petitions questioning the validity of that withdrawal for the simple reason that they were “MOOT.” This was so, it explained in page 99 towards the end of the discussion, because of the ICC’s “acknowledgement of withdrawal… removing any potential relief from this Court’s [the SC’s] sphere.” This is an indication that the SC recognizes its limited “sphere” when it comes to controlling actions of the ICC. To repeat, the SC has no jurisdiction over the ICC, only over the relevant Philippine authorities.

Aside from the afore-quoted DOJ Certification indicating RP cooperation with the ICC in the Duterte arrest and surrender, the ICC OTP itself actually recognized that cooperation in a Statement it issued soon thereafter, that it: (underscorings supplied)

… welcomes the arrest and transfer of the suspect Mr Rodrigo Roa Duterte, former President of the Philippines, on 11 March 2025 by the authorities of the Republic of the Philippines. Mr Duterte has been arrested in the context of the Office’s ongoing investigation into the Situation in the Republic of the Philippines.

xxx

… In pursuing further accountability in this Situation, the Office hopes to engage with the Philippine authorities on potential avenues of cooperation, and will continue to rely on the partnership of national authorities, regional and international organisations, civil society, and the communities affected by Rome Statute crimes.

This Statement hopes for continued RP cooperation “in pursuing further accountability in this Situation.” This phrase could well refer to new WOAs for other suspected co-perpetrators of the Duterte drug war CAH. The ICC WOA for Duterte itself towards the end indicates a directive to the ICC Registrar to “(iv) submit a progress report on the status of the execution of the request for cooperation…” This remains to be seen or shown, and it would likely provide more details about the cooperation obtained from the relevant Philippine authorities, whether directly and/or indirectly.

So, do we now have a “he said, she said” type of scenario between the RP (esp. President Marcos Jr.) and the ICC as to cooperation in the Duterte arrest and surrender? Who is to be believed? President Marcos Jr. is not bound by the ICC view, but he is bound by the SC view.

Aside from the issue of a withdrawing State’s cooperation with the ICC, there is also the question of RS applicability to the whole process of cooperation, such as in matters of arrest and surrender. In the RP cooperation with the ICC for the Duterte arrest and surrender, the RS applicability question may be moot and academic, given the afore-quoted DOJ Certification of avowed “compliance” with the RS, even citing its Part 9 and Articles 59(4) and (7). Indeed, it is only logical that any State cooperation with ICC processes entails compliance with RS provisions governing those processes. This must be seen as part of whatever residual obligation of cooperation by withdrawing States with the ICC. Note Atty. Tiojanco’s final comment of “hope the Supreme Court also clarifies the applicability of the Rome Statute’s procedural safeguards for persons arrested under an ICC warrant.”

Despite the overwhelming evidence of and legal basis for RP cooperation with the ICC, at least with the Duterte arrest and surrender, it is a wonder why the relevant Philippine authorities led by President Marcos Jr. continue to hold the line of non-cooperation with the ICC, with or without the INTERPOL subterfuge for this. It can only mean no desire for further entanglement with the ICC after having quite deftly seized the moment accurately and quickly to dispose of their Duterte problem there. Good riddance from the domestic political scene with his expected long detention and longer imprisonment practically for life courtesy of the ICC, likely bypassing the crucial 2028 presidential elections. The Duterte buck has in effect been passed to the ICC, its OTP and the drug war victims’ families and counsels. The RP is no longer a party to this case, unlike during its earlier stages when the RP challenged the PTC’s authorization for the OTP to resume its investigation. The RP no longer represents Duterte like when he was President. Neither does the RP represent the victims. They are both on their own, without RP support, for now.

That “partisan politics probably played a part in Duterte’s surrender” is an understatement. It could not have happened without the political will and admittedly tactical skill of the key Marcos Jr. administration officials. This does not necessarily mean that the Duterte arrest and surrender were not “right, just, and necessary.” This may simply be the serendipity of the right thing happening for the wrong reasons. Or call it karma that trumps hubris.

Clarifying or perhaps further complicating all this is the chief RP legal counsel Solicitor General Menardo Guevarra’s cryptic Manifestation of recusal from the consolidated three Duterte family habeas corpus petitions case in the SC:

4. In steadfast adherence to this sovereign decision [of RP withdrawal from the RS], the OSG has consistently maintained, both in its submissions before the ICC and in its public statements, that the case of the Philippines was not admissible and that the ICC failed to timely exercise its jurisdiction. Consequently, the Philippine Government has no legal obligation to cooperate with the ICC nor recognize any process emanating from the ICC following the effectivity of the country’s withdrawal from the Rome Statute.

5. Considering the OSG’s firm position that the ICC is barred from exercising jurisdiction over the Philippines and that the country’s investigative, prosecutorial, and judicial system is functioning as it should, the OSG may not be able to effectively represent Respondents [mainly executive officials] in these cases and is constrained to recuse itself from participating herein,

Solicitor General Guevarra’s self-recusal is understandable given that his consistent position of no legal obligation of RP cooperation with the ICC is belied by or inconsistent with the shown and seen actual RP cooperation with the ICC in the Duterte arrest and surrender. The obvious question is: was he the chief RP legal counsel out of the loop on this?

It is also inconsistent with the SC ruling statement that “Any and all governmental acts up to March 17, 2019 may be taken cognizance of by the International Criminal Court.” Though this is not binding on the ICC, it is binding on the executive department, and it brings us finally to the “pivotal issue” of ICC jurisdiction over the Duterte drug war CAH,

 The “Pivotal Issue” of Jurisdiction

Amid the overwhelming din of lawyer and non-lawyer opinions on the legality of the Duterte arrest and surrender to the ICC, it is CJ Panganiban who has called attention to “the pivotal legal issue: the jurisdiction of the ICC to conduct trial and pass judgment on Duterte.” Indeed, our ad judicium (“for trial, judgment and justice”). This pivotal jurisdiction issue over the Duterte drug war CAH in the case of a withdrawing State like the RP hangs or turns on whatever prevailing ICC interpretation of the second limb (underscored supplied below) of RS Art. 127(2) on the effect of withdrawal:

2. A State shall not be discharged, by reason of its withdrawal, from the obligations arising from this Statute while it was a Party to the Statute, including any financial obligations which may have accrued. Its withdrawal 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, nor shall it prejudice in any way the continued consideration of any matter which was already under consideration by the Court prior to the date on which the withdrawal became effective.

It is not true, as some say, that the ICC had already resolved this jurisdiction issue in its 18 July 2023 Appeals Chamber Judgment on the RP appeal against the PTC authorization of the OTP to resume its investigation of the Duterte drug war CAH. The 3-2 majority of the Appeals Chamber dismissed the RP appeal on grounds or reasons that did not include ruling substantively on the jurisdiction issue relevant to the RP withdrawal from the RS. The majority 3 Judges ruled that this issue was not properly raised earlier and so could not be ruled on at the appeal level. The minority 2 Judges dissented from that ruling, contending that the jurisdiction issue was properly raised earlier and that it was pivotal because the ICC no longer had jurisdiction, as the RP had already withdrawn by the time the Duterte drug war CAH came “under consideration by the Court” with the PTC’s formal authorization for the OTP to commence an investigation, not just the OTP’s unilateral commencement of an informal preliminary examination.

This jurisdiction issue is bound to be raised again in another coming challenge “prior to the confirmation of the charges,” this time by the individual suspect Duterte, no longer by the RP. It is in the interest of the Marcos Jr. government representing the RP that the ICC continue to exercise jurisdiction over Duterte now in its custody, otherwise there would no longer be any legal basis for such custody, in which case he would be released and can normally return to the Philippines, to the likely dismay of the Marcos Jr. political camp.

The legal issue of ICC jurisdiction in the case of a withdrawing State here is: was the Duterte drug war CAH “already under the consideration by the Court” prior to the date on which the RP withdrawal from the RS became effective on March 17, 2019? If prior, the ICC has jurisdiction. If not prior, the ICC has no jurisdiction.

But then when is a matter reckoned to be “already under the consideration by the Court”? Is it when the OTP unilaterally starts the informal preliminary examination into the several complaints against the several Duterte drug war CAH? OR is it when the PTC authorizes the formal investigation thereof? In this regard, it would help to note certain key dates in the ICC Duterte Case:

24 Apr 2017 – filing of the first complaint against the Duterte drug war CAH

8 Feb 2018 – start of the OTP unilateral informal preliminary examination

into several complaints against the Duterte drug war CAH

17 Mar 2018 – RP withdrawal from the RS

17 Mar 2019 – effectivity of RP withdrawal

15 Sep 2021 – PTC authorizes OTP formal investigation of the Duterte drug war CAH

There is actually no “two year prescriptive period” under the RS after the effectivity date of a State’s withdrawal before which the PTC must authorize the OTP formal investigation in order for the ICC to “continue consideration” or retain jurisdiction over “the matter which was already under consideration by the Court.” It just so happened in the ICC Duterte Case that the PTC authorization of the OTP formal investigation occurred more than two years after the RP withdrawal from the RS. But the real legal issue is as was stated above: was the Duterte drug war CAH “already under the consideration by the Court” prior to the effectivity date of RP withdrawal on March 17, 2019? As stated, there are two schools of thought on when “the matter was already under the consideration by the Court” —

1. Upon the start of the OTP unilateral informal preliminary examination on February 8, 2018 [which was prior to the RP withdrawal effectivity]

2. Upon the PTC authorization of the OTP formal investigation on September 15, 2021 [which was not prior to the RP withdrawal effectivity]

The aforementioned minority 2 dissenting Judges (one has since retired, just like one majority Judge) essentially argued the second school of thought this way in their Dissenting Opinion:

… we consider that the Prosecutor’s preliminary examinations are not a “matter […] under consideration by the Court” within the meaning of article 127(2) of the Statute, and that a situation is only under consideration by the Court once a pre-trial chamber authorises an investigation into that situation. This is largely due to informal nature of the preliminary examinations, which do not carry sufficient weight for engaging the Court’s jurisdiction, in the absence of a pre-trial chamber’s formal authorisation of the commencement of an investigation, pursuant to article 15 of the Statute. We consider that the last sentence of article 127(2) of the Statute cannot be relied upon to extend the Prosecutor’s power to submit an article 15(3) request beyond the time the withdrawal has become effective.

They also earlier argued that:

… the Prosecutor has to make all efforts to trigger the Court’s jurisdiction in a manner that would not infringe the right of a State to withdraw from the Statute [but also prevent any misuse of the State’s right to withdraw]. We are of the view that one year [after withdrawal before its effectivity] is sufficient for the Prosecutor to conduct his preliminary examination and request a pre-trial chamber to authorise the commencement of the investigation, and for the pre-trial chamber to rule upon such request…

This dissenting view of 2 Judges is of course not authoritative but it will likely be re-argued by the defense counsel of Duterte in a coming challenge to the ICC’s jurisdiction in the Duterte Case under RS Art. 19 likely “prior to the confirmation of the charges” hearing scheduled on September 23, 2025. This dissenting view is however somewhat bolstered by an ICC PTC 2017 Decision in the case of Burundi, the first State Party to withdraw from the RS, the RP being the second. In that Decision, the ICC “retained jurisdiction over the Burundi Situation precisely because the former Prosecutor sought authorisation and Pre-Trial Chamber III authorised the investigation before the withdrawal became effective.”

This may be worth only two cents but I would dissent to that dissent. Its second school of thought that the Duterte drug war CAH “was already under the consideration by the Court” only upon the PTC authorization of the OTP formal investigation is too narrow or restrictive an interpretation of “already under consideration” and of “the Court.” The plain English “already under consideration” should be construed more liberally or broadly to cover, under the first school of thought, the OTP unilateral informal preliminary examination, pursuant to the very spirit of the law (mens legis) which is the RS, as stated in its Preamble, including:

Affirming that the most serious crimes of concern to the international community as a whole must not go unpunished and that their effective prosecution must be ensured by taking measures at the national level and by enhancing international cooperation,

Determined to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes,

Determined to these ends and for the sake of present and future generations, to establish an independent permanent International Criminal Court in relationship with the United Nations system, with jurisdiction over the most serious crimes of concern to the international community as a whole,

And the spirit of the law does not or should not exist in a vacuum from the factual Situation in the Republic of the Philippines which was the Duterte drug war Crime Against Humanity of Murder of from 6,000+ (minimum) to 30,000+ (maximum) persons from November 1, 2011 to March 16, 2019, when the RP was still a State Party to the RS for more than seven years. The “gravity of the alleged crimes” and the role of suspect co-perpetrator Duterte therein as the admitted mastermind and principal enabler should be considered along with the intention, purpose and reason for the law (ratio legis) which is the RS, just as these ought to be among the considerations in reaching a decision on his application for interim release — which itself has other considerations like “resultant risk of interference with the investigations and the security of witnesses and victims.”

Likewise, the term “the Court” in the phrase “already under the consideration by the Court” should likewise not be too restrictively construed to refer only to the judicial chambers of the ICC like “an Appeals Division, a Trial Division and a Pre-Trial Division.” Aside from those, the RS itself in its Art. 34 on “Organs of the Court” also enumerates “The Presidency,” “The Office of the Prosecutor,” and “The Registry.” Clearly, the OTP is an organ of the ICC. And therefore when the OTP started on February 8, 2018 its unilateral informal preliminary examination into several complaints against the Duterte drug war CAH, it can then be said that the “matter… was already under consideration by the Court prior to the date on which the withdrawal [of the RP from the RS] became effective” on March 17, 2019. The ICC should thus retain jurisdiction over the RP Situation.

I wish to thank good friend former ICC Judge Pangalangan for his help with the “legalistic minutiae” in the interpretation of the RS Art. 127(2) second limb or last phrase by parsing it into two parts of the terms “already under consideration” and of “the Court.” Incidentally, he was in the PTC III that issued the aforesaid 2017 Decision in the Burundi Case. That the ICC “retained jurisdiction over the Burundi Situation precisely because the former Prosecutor sought authorisation and Pre-Trial Chamber III authorised the investigation before the withdrawal became effective,” in my view, does not or should not necessarily preclude the ICC from retaining jurisdiction over the RP Situation because the former Prosecutor started a unilateral preliminary examination before the RP withdrawal became effective.

In ending this admittedly over-long article, whether or not the ICC retains jurisdiction over the Duterte Case, and I hope it does, the relevant Philippine authorities and concerned citizens, especially human rights advocates, should not forget the House Quad Committee’s bold recommendation of the filing of charges under RA 9851 for the Duterte drug war Crime Against Humanity of Willful Killing against former President Duterte, Senator Bato dela Rosa, Senator Bong Go, former PNP Chief Oscar Albayalde, former PNP Chief Debold Sinas, PCOL Royina Garma, and PCOL Edilberto Leonardo. EVEN IF the ICC Duterte Case proceeds to trial, it will cover the Duterte drug war only up to March 16, 2019. It will not cover the remaining 3 years and 3 months of Duterte’s term from March 17, 2019 up to June 30, 2022, that includes a good number of the 6,000-30,000 drug war victims. How about the justice for them and also the justice for and accountability of the co-perpetrators? Is the political will for this still there now that the Duterte problem has been passed to the ICC? Have we forgotten the State policy in RA 9851, Sec. 2(e):

The most serious crimes of concern to the international community as a whole must not go unpunished and their effective prosecution must be ensured by taking measures at the national level, in order to put an end to impunity for the perpetrators of these crimes and thus contribute to the prevention of such crimes, it being the duty of every State to exercise its criminal jurisdiction over those responsible for international crimes;

But Duterte is now in the ICC detention center, how do we serve a Philippine court warrant of arrest against him? Ask the cooperation of INTERPOL and the ICC, in international comity reciprocation of the cooperation that the RP gave them for the Duterte arrest and surrender. Post tenebras lux (“After darkness, light”). Post tenebras lex (“After darkness, law”). — #

Naga City, 26 April 2025

Soliman M. Santos, Jr.

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