Duterte in the Hague tests Philippine engagement with international criminal law
by Ruby Rosselle L. Tugade
Published on 11 April 2025
The dramatic circumstances surrounding Rodrigo Duterte’s arrest and extradition to the Hague last month for alleged crimes against humanity generated various discussions on his arrest’s propriety under the legal regime of the International Criminal Court (ICC). Days prior to the arrest, unverified claims circulated that a warrant had been issued by the ICC, and that the Philippine government was preparing to implement the arrest. Upon Duterte’s return from Hong Kong on 11 March, government personnel moved to execute the warrant. Duterte was read his Miranda rights as he was placed in effective custody. Before the day had ended, Duterte was bound for the Hague.
While Duterte ‘did not put up a fight’, his family and close companions took to the press and social media, blasting the Marcos Jr. government for the swift arrest and extradition. In Duterte’s initial court appearance, his counsel Salvador Medialdea framed the arrest as ‘political score settling,’ and a ‘pure and simple kidnapping’ without the availability of recourse under domestic law. With an almost cinematic quality to the arrest, the legal argument that emerged questioned the legality of the acts of Philippine authorities in light of the duties of a custodial state under the Rome Statute.
At its core, the Duterte camp decried the absence of due process. In publicly airing this claim, they leaned into domestic remedies through several emergency filings before the Philippine Supreme Court. These include a Petition for Certiorari and Prohibition and separate habeas corpus petitions by the Duterte children. With Duterte now invoking due process and rule of law arguments—fundamental legal ideas that his own government conveniently bent or ignored—the political spillage has unfolded as allies in the Philippine Senate launch a probe on ‘irregularities’ in the arrest.
Duterte himself once boldly stated during his presidency, ‘I will not allow myself to be judged by white people in another place outside of my country. If I am tried, I should be tried by a Filipino judge in a Philippine tribunal.’ During his rule, Duterte played into hypernationalist rhetoric and utilised the discourse of sovereignty to proclaim that he is ‘answerable to no one except the Filipino people.’ The Philippines’ withdrawal from the Rome Statute in 2018 promoted scepticism towards international criminal law (ICL) in general. Yet despite official and institutional denunciation of ICL, the victim community welcomed the arrest as a relief from years of living in fear. Therefore, a narrow focus on procedural arguments misses the opportunity to discuss two important issues, namely the place of the ICC investigation in the Philippines’ historical engagement with ICL and the grounded insights on ICL as an accountability forum from the point of view of the victims and their families.
In this essay, I will offer a brief and necessarily limited illustration of the Philippines’ complex history of engaging with ICL. While my own intellectual interests concern the Philippines’ historical engagements with international law, my prior practice as a lawyer focused on accountability efforts on the ‘Drug War.’ I thus approach these questions not only as theoretical inquiries but as urgent and grounded concerns, going beyond the politically captured and legally inaccurate analysis foregrounding the ICC’s move as an affront to sovereignty.
The Philippines’ encounters with ICL
Turning to history is useful insofar as it partly explains why ICL in the Philippines is deeply enmeshed in the register of domestic politics and the assertion of sovereignty. A historical reading points to why any discussion of the ICC’s complementarity regime—its ability to prosecute cases if states as unwilling or unable to do so—triggers sensitivities on outside perception of the integrity of the Philippine legal system. At best, the Philippines’ relationship with ICL may be seen as unsteady.
At the dawn of modern ICL through the Nuremberg and Tokyo Trials, the Philippines nominated jurist Delfin Jaranilla to join the bench of the International Military Tribunal for the Far East (IMFTE). Jaranilla was a last-minute nomination, and he joined the Tribunal when the trials had already begun. The Philippine government likely saw Jaranilla’s appointment as a chance to boost national prestige on the emerging global stage ahead of formal independence in July 1946. Jaranilla, a survivor of the Bataan Death March, wrote a Concurring Opinion that in retrospective analyses is seen as ‘contributing little’ to the IMFTE’s jurisprudence. Unlike the dissent of Judge Radhabinod Pal of India, time and legal scholarship have not been as kind Jaranilla’s opinion, which does not occupy a mainstream place in the Philippines’ legal imaginary. Judge Raul Pangalangan—so far, the only Filipino to have sat on the ICC’s bench—has, indeed, portrayed the lack of enthusiasm for ICL as a regional tendency rooted in the shortcomings of the Tokyo Trials.
The demands of transition to full independence shifted the activity of international criminal trials to domestic proceedings in the service of stabilizing early post-colonial politics. In the same post-war period, the Supreme Court decided cases involving Japanese military commanders in Yamashita v Styer (1945) and Kuroda v Jalandoni (1949). The command responsibility doctrine, now a fixture in ICL, was later developed in Yamashita by the US Supreme Court. Meanwhile, Kuroda primarily resolved the constitutionality of an executive order establishing a National War Crimes Office. These decisions did not carve doctrines on individual criminal liability under international law, the distinct core of ICL.
These early encounters, while not directly contributing to the substance of ICL, are glimpses of a post-war legal sensibility. While the Supreme Court appeared to prioritize compliance with international law as a fledging state, it did so with a clear anchor to domestic legal institutions. Due to the political exigencies of independence, the Philippines adopted a pragmatic approach to post-war trials. Acts of wartime violence were prosecuted in regular criminal courts under the domestic criminal law of treason, operating separately from the evolving international legal landscape that began to define international crimes in a standardised fashion. Without a satisfactory record of convictions for treason cases, President Manuel Roxas issued a proclamation of amnesty (1948), framed as a decisive political and moral act. Treason trials divided a people still reeling from war and thus threatened the unity of a young nation-state.
This commitment to minimising political ramifications mixed with scepticism is again seen in the controversial decision in Vinuya v Romulo (2010) from a petition filed by survivors of wartime sexual slavery. Vinuya is more known for its place in legal ethics on plagiarism rather than its fundamental misapprehension of international law. In Vinuya, the Court ruled that it was not prepared to accept that a norm exists regarding the duty to prosecute international crimes.
Indeed, the Philippines’ disposition towards ICL’s broader legal project has been ‘mixed and dynamic.’ Its ratification of the Rome Statute in 2011 was largely due to civil society pressure stemming from the reluctance to become a state-party even after signing in 2000. Prior to membership in the ICC, the issue of whether a duty existed for the executive department to transmit the treaty’s text to the Senate for ratification was litigated in the Supreme Court. This hesitant disposition towards ICL also reverberates in Pangilinan v Cayetano, the case that tackled the withdrawal from the Rome Statute. Citing the fact that the Philippines adopted an international crimes act in 2009 well before ratification of the Rome Statute, the domestic sphere already had a robust legal regime to punish war crimes, crimes against humanity, and genocide. This, in the Court’s view, indicated that there was no need to participate in an international mechanism.
Duterte’s insistence on domestic proceedings and notions of due process takes to the extreme this distrust of international legal mechanisms. His legal strategy attempts to entangle in a potential ICC trial the question of sovereignty and indeed of foreign intrusion—powerful rallying points for a nation with a long colonial history. More than a legal tactic, Duterte’s play is political: he concocted this potent cocktail to question the premise of accountability under ICL. Likewise, the current Philippine government has not wavered in its position that the ICC lacks jurisdiction over alleged crimes against humanity, even calling the investigation a breach of the principle of non-intervention. Further, the government insisted on the inadmissibility of the case before the ICC owing to various national proceedings involving ‘Drug War’-related human rights violations. However, the majority in the ICC’s Appeals Chamber found the state’s action on the alleged crimes against humanity to be sparse, with only isolated convictions and no systematic national investigation. Importantly, on the night of Duterte’s arrest, Marcos Jr. reiterated the nature of the government’s decision to enforce the ICC’s warrant. According to him, it is simply to honour the Philippines’ commitment to the Interpol, a supposed sign of its maturity as a sovereign state. Marcos Jr. made it clear that his government ‘did not do this because it was derived from, or it came from ICC.’ Instead, the arrest was implemented ‘because Interpol asked us to do it. And we have commitments to them, and we lived up to those commitments.’
In effect, the government tacked its duty to a sovereign and voluntary commitment to Interpol not necessarily sourced from any residual legal obligation under the Rome Statute. This way, the government has carved a comfortable distance between itself and potentially troublesome international legal questions. Both Duterte’s hostile legal tactics and the Philippine government’s avoidance of the tough legal questions echo the Philippines’ historically situated ambivalence towards ICL. The net effect of these positions is to generate further suspicion on the capacity of ICL to provide justice for ‘Drug War’ killings, albeit framed in legal terms.
The victim community’s views
Amid the various legal theories swirling around Duterte’s arrest, the voice of the victim community remains a crucial anchor for any larger justice project. The ICC’s investigation was built from the evidentiary material in contemporaneous documentation made possible through the defiant work of human rights defenders. And while scholars may speculate on the consequences of Duterte’s arrest on the ICC’s acceptance in Southeast Asia, any discussion of its impact should begin with the most affected community. The ‘Drug War’ shocked the world precisely because of its gruesome display of violence: drug users and the poor were summarily executed coupled with active forms of dehumanisation. The clamour for an ICC investigation from the ground is palpable and alive. The recourse of families to international mechanisms cannot be simply read as the absence of political agency which would ascribe them as idealized victims of mass atrocities. Direct narratives from the families intimate their astute perceptions of the ICC’s processes. Most articulate a belief that justice may be achieved in the ICC and some believe that the ICC’s investigation must continue, even if to ensure that the prospect of facing accountability becomes real in the minds of perpetrators.
In the time that I have engaged as part of CenterLaw with San Andres Bukid, a community that collectively challenged the Drug War in the Supreme Court, I saw how families treated the ICC as an avenue to seek accountability, without getting paralysed by the concerns of high politics or technical complexity. Where the barrier was too high to obtain justice at home, the families expressed the hope they still see in the ICC so that no more innocent lives are lost. Unlike the state’s measured reluctance with ICL over the years, the victim community proceeds with less hesitation. As such, Duterte’s arrest may force a reckoning for the Philippines insofar as it could compel a reassessment of the historically ambivalent attitude towards ICL.
The affective theatre of Duterte’s arrest reiterates the academic debates within ICL that may be useful in offering nuance. Fundamentally, however, taking discussions beyond proceduralism may be more helpful in deepening the Philippines’ engagement with ICL. Duterte’s arrest is a singular moment that nevertheless distils almost a century of uncertain reception of ICL itself. For those left behind by the bloody ‘Drug War’ it is, more than anything, the next phase in the protracted quest for international justice as the rest of the world looks on.