Rodrigo Duterte’s Trial Before the International Criminal Court: Unprecedented
Professor Aries A Arugay is Coordinator of the Philippine Studies Programme at ISEAS – Yusof Ishak Institute and Chair of the Department of Political Science at the University of the Philippines-Diliman. Michael T Tiu Jr is Assistant Professor at the latter specialising in international criminal and human rights law
The International Criminal Court’s warrant of arrest against former Philippine President Rodrigo Duterte is a significant step to hold him accountable for alleged crimes committed during his anti-drug drive.
2025 is starting to be a very bad year for the Dutertes. The once formidable dynasty’s attention has shifted from the upcoming impeachment trial of Vice President Sara Duterte to its patriarch being brought under international criminal prosecution. Rodrigo Duterte will mount a stern defence before the International Criminal Court at the Hague, but the case will have ramifications for domestic politics at home.
On 11 March, the Pre-Trial Chamber of the International Criminal Court (ICC) issued a warrant of arrest against Rodrigo Duterte for alleged crimes against humanity committed by the former president during his bloody war on drugs. After being detained by the ICC, Duterte was transported by a chartered flight to The Hague.
Invoking the need to rescue Filipinos from the scourge of illegal narcotics, the populist leader instigated a systemic nationwide anti-drug campaign that led to thousands of extrajudicial killings. Human rights groups estimated the death toll to be between 12,000 and 30,000, predominantly affecting impoverished Filipino drug dependents.
This is the first time that any Filipino or Southeast Asian head of state has been arrested by an international court. The ICC is enshrined by the Rome Statue which currently has 195 state parties. The multilateral institution represents the emerging global norm of individual criminal responsibility for the most heinous crimes against humankind.
The ICC’s investigation, which started in March 2018, comprised alleged crimes committed from 2011-2019, covering Duterte’s tenure as Davao City mayor and then president. The arrest warrant detailed the essential contributions of Duterte to his commission of the alleged crimes, particularly the design of the policy that led to the appointment of key personnel and the subsequent killings.
The warrant also mentioned the necessity of the arrest – even though he is no longer in office, Duterte still wields considerable power. A warrant of arrest is issued when there are “reasonable grounds to believe that the person has committed a crime within the jurisdiction” of the Hague-based court and such arrest is deemed necessary.
Duterte and his political allies have long questioned the ICC’s jurisdiction and legitimacy. He challenged the Court’s human rights regime, deeming it an obstacle to security and order. He also consistently viewed the Court as a Western-biased institution bent on undermining state sovereignty, a narrative also invoked by revisionist states such as Russia and China. In fact, before Duterte unilaterally withdrew from the Rome Statue in 2019, his friend and idol, Russian President Vladimir Putin, did the same in 2016.
Stepping down from office in 2022, Duterte was confident that he would continue to be out of reach of the ICC. Upon winning the presidential elections, Ferdinand “Bongbong” Marcos promised that the outgoing president would be untouched given the Court’s lack of jurisdiction (even though he had voted for the ratification of the Statute when he was a senator).
While Duterte may ask these questions before the ICC, his arrest may still be legal.
The unravelling of the Marcos-Duterte dynastic alliance was the game-changer. In January 2025, Marcos Jr changed his stance and said he would “respond favourably” to an ICC arrest and cooperate with the International Criminal Police Organization (Interpol). Other names implicated in the ICC case included Duterte’s daughter Sara, and two close allies running for re-election in the upcoming midterm elections in May.
Given Duterte’s robust popular support, the Marcos Jr administration mobilised a 7,000-strong police force to implement the warrant. The current president insisted that the arrest was made because the Philippines needs to comply with Interpol as a member of the international organisation.
While Duterte’s arrest follows a disturbing trend of ex-presidents being incarcerated for high crimes, the prospect of a downward spiral of political stability is still possible. In May 2001, deposed President Joseph Estrada’s arrest for plunder charges triggered a massive mobilisation that almost toppled the government. Thus, one cannot rule out the pernicious polarisation that could ensue given Duterte’s arrest.
One can expect a challenge from Duterte from all possible legal fronts. The lingering issue of the jurisdiction of the ICC over Philippine nationals will be relitigated. As the subject of a warrant, Duterte is entitled to challenge the jurisdiction of the ICC anew given the country’s formal withdrawal from the Rome Statute. He may also lodge another admissibility challenge based on the principle of complementarity – the idea that the ICC should only step in when Philippine penal institutions are unwilling or unable to investigate and prosecute Duterte for the same acts described in the warrant of arrest.
In this case of arrest and transfer, the ICC sends requests of cooperation to custodial states, which may decide to assist the Court in bringing the person before it. But the obligation to cooperate rests only on state parties. Since the Philippines is no longer a party, much rests on the willingness of Marcos Jr’s government to cooperate with the court.
Duterte sought redress from the Supreme Court challenging the legality of the arrest and he may well assert his constitutional right not to be deprived of liberty without due legal process. If granted, this can complicate his status as a person under the jurisdiction of the ICC as the Philippines’ highest court would consider this an open legal question. Duterte may also seek interim release. The Rome Statute allows a competent judicial authority or the Pre-Trial Chamber to exercise that discretion under certain conditions.
Ironically, the same rights available to Duterte were robbed from the victims of extra-judicial killings that allegedly occurred under his direct orders.
This article was originally published on Fulcrum.sg on 12 March 2025 and has been republished here by kind permission of the authors.
The opinions expressed are those of the contributor, not necessarily of the RSAA.
