Former president Rodrigo Duterte was flown to The Hague, Netherlands, Tuesday night where he is expected to face the ICC Court.*
Here are the answers to the frequently asked questions on former president Rodrigo Duterte’s International Criminal Court (ICC) case from a purely scholarly perspective with no politics involved.
𝗔. 𝗝𝘂𝗿𝗶𝘀𝗱𝗶𝗰𝘁𝗶𝗼𝗻𝗮𝗹 𝗜𝘀𝘀𝘂𝗲𝘀
𝟭. 𝗪𝗵𝗮𝘁 𝗮𝗿𝗲 𝘁𝗵𝗲 𝗰𝗵𝗮𝗿𝗴𝗲𝘀 𝗮𝗴𝗮𝗶𝗻𝘀𝘁 𝗥𝗼𝗱𝗿𝗶𝗴𝗼 𝗗𝘂𝘁𝗲𝗿𝘁𝗲 𝗮𝘁 𝘁𝗵𝗲 𝗜𝗖𝗖?
Rodrigo Duterte is accused of crimes against humanity, specifically murder, relating to extrajudicial killings during his anti-drug campaign (2016–2019) and earlier as Mayor of Davao City (2011–2016) (Rome Statute art. 7(1)(a); Situation in the Philippines, ICC-01/21, Pre-Trial Chamber I, Decision Authorizing Investigation (Sept. 15, 2021)).
𝟮. 𝗪𝗵𝗶𝗰𝗵 𝘀𝗽𝗲𝗰𝗶𝗳𝗶𝗰 𝗽𝗿𝗼𝘃𝗶𝘀𝗶𝗼𝗻𝘀 𝗼𝗳 𝘁𝗵𝗲 𝗥𝗼𝗺𝗲 𝗦𝘁𝗮𝘁𝘂𝘁𝗲 𝗮𝗿𝗲 𝗶𝗺𝗽𝗹𝗶𝗰𝗮𝘁𝗲𝗱?
The primary provision implicated is Article 7(1)(a) regarding crimes against humanity (murder), committed as part of a widespread or systematic attack against civilians. Official status as head of state does not provide immunity (Rome Statute art. 27).
𝟯. 𝗗𝗼𝗲𝘀 𝘁𝗵𝗲 𝗜𝗖𝗖 𝗿𝗲𝘁𝗮𝗶𝗻 𝗷𝘂𝗿𝗶𝘀𝗱𝗶𝗰𝘁𝗶𝗼𝗻 𝗼𝘃𝗲𝗿 𝗗𝘂𝘁𝗲𝗿𝘁𝗲 𝗱𝗲𝘀𝗽𝗶𝘁𝗲 𝘁𝗵𝗲 𝗣𝗵𝗶𝗹𝗶𝗽𝗽𝗶𝗻𝗲𝘀’ 𝘄𝗶𝘁𝗵𝗱𝗿𝗮𝘄𝗮𝗹 𝗳𝗿𝗼𝗺 𝘁𝗵𝗲 𝗥𝗼𝗺𝗲 𝗦𝘁𝗮𝘁𝘂𝘁𝗲?
Yes. The ICC retains jurisdiction over crimes committed before the Philippines’ withdrawal took effect on March 17, 2019. Withdrawal does not affect proceedings initiated prior to its effective date (Rome Statute art. 127(2); Situation in the Philippines, ICC-01/21 OA, Appeals Chamber Judgment, July 18, 2023).
𝟰. 𝗛𝗼𝘄 𝗱𝗼𝗲𝘀 𝗰𝗼𝗺𝗽𝗹𝗲𝗺𝗲𝗻𝘁𝗮𝗿𝗶𝘁𝘆 𝗮𝗳𝗳𝗲𝗰𝘁 𝗜𝗖𝗖 𝗷𝘂𝗿𝗶𝘀𝗱𝗶𝗰𝘁𝗶𝗼𝗻 𝗼𝘃𝗲𝗿 𝗗𝘂𝘁𝗲𝗿𝘁𝗲’𝘀 𝗰𝗮𝘀𝗲?
The ICC exercises jurisdiction if a state is unwilling or unable genuinely to prosecute. The ICC found that the Philippines failed to conduct genuine domestic investigations, thereby satisfying the complementarity principle (Rome Statute art. 17; ICC-01/21 OA, Appeals Chamber Judgment, July 18, 2023).
𝗕. 𝗟𝗲𝗴𝗮𝗹 𝗣𝗿𝗼𝗰𝗲𝘀𝘀 𝗮𝗻𝗱 𝗔𝗿𝗿𝗲𝘀𝘁 𝗪𝗮𝗿𝗿𝗮𝗻𝘁
𝟱. 𝗢𝗻 𝘄𝗵𝗮𝘁 𝗯𝗮𝘀𝗶𝘀 𝗱𝗶𝗱 𝘁𝗵𝗲 𝗜𝗖𝗖 𝗶𝘀𝘀𝘂𝗲 𝗮𝗻 𝗮𝗿𝗿𝗲𝘀𝘁 𝘄𝗮𝗿𝗿𝗮𝗻𝘁 𝗮𝗴𝗮𝗶𝗻𝘀𝘁 𝗗𝘂𝘁𝗲𝗿𝘁𝗲?
An ICC arrest warrant is issued if judges find reasonable grounds that crimes within ICC jurisdiction were committed and arrest is necessary to ensure trial attendance or prevent obstruction (Rome Statute art. 58(1)). The ICC Pre-Trial Chamber determined these conditions were satisfied.
𝟲. 𝗗𝗼𝗲𝘀 𝗗𝘂𝘁𝗲𝗿𝘁𝗲’𝘀 𝗮𝗿𝗿𝗲𝘀𝘁 𝘄𝗮𝗿𝗿𝗮𝗻𝘁 𝗿𝗲𝗺𝗮𝗶𝗻 𝘃𝗮𝗹𝗶𝗱 𝗲𝘃𝗲𝗻 𝗮𝗳𝘁𝗲𝗿 𝘁𝗵𝗲 𝗣𝗵𝗶𝗹𝗶𝗽𝗽𝗶𝗻𝗲𝘀’ 𝘄𝗶𝘁𝗵𝗱𝗿𝗮𝘄𝗮𝗹?
Yes. The warrant remains valid because jurisdiction is determined by the timing of the alleged crimes, not the current treaty status (Rome Statute art. 127(2); ICC Appeals Chamber Judgment, July 18, 2023).
𝗖. 𝗟𝗲𝗴𝗮𝗹 𝗣𝗿𝗼𝗰𝗲𝘀𝘀 𝗙𝗼𝗹𝗹𝗼𝘄𝗶𝗻𝗴 𝗔𝗿𝗿𝗲𝘀𝘁
𝟳. 𝗪𝗵𝗮𝘁 𝗽𝗿𝗼𝗰𝗲𝗱𝘂𝗿𝗲𝘀 𝗳𝗼𝗹𝗹𝗼𝘄 𝗗𝘂𝘁𝗲𝗿𝘁𝗲’𝘀 𝗮𝗿𝗿𝗲𝘀𝘁 𝗯𝘆 𝗣𝗵𝗶𝗹𝗶𝗽𝗽𝗶𝗻𝗲 𝗮𝘂𝘁𝗵𝗼𝗿𝗶𝘁𝗶𝗲𝘀?
After arrest, Duterte would appear before Philippine authorities to verify the ICC’s request. Under Republic Act No. 9851 (Philippine Act on Crimes Against International Humanitarian Law, Genocide, and Other Crimes Against Humanity, § 17), Duterte could be transferred to the ICC for initial appearance, confirmation of charges, and potential trial (Rome Statute arts. 60, 61).
𝟴. 𝗜𝗳 𝗗𝘂𝘁𝗲𝗿𝘁𝗲 𝗶𝘀 𝘀𝘂𝗿𝗿𝗲𝗻𝗱𝗲𝗿𝗲𝗱 𝘁𝗼 𝘁𝗵𝗲 𝗜𝗖𝗖, 𝘄𝗵𝗲𝗿𝗲 𝘄𝗶𝗹𝗹 𝘁𝗵𝗲 𝘁𝗿𝗶𝗮𝗹 𝗯𝗲 𝗵𝗲𝗹𝗱?
The trial would take place at the ICC headquarters in The Hague, Netherlands (Rome Statute art. 3).
𝟵. 𝗪𝗵𝗲𝗿𝗲 𝘄𝗶𝗹𝗹 𝗗𝘂𝘁𝗲𝗿𝘁𝗲 𝗯𝗲 𝗱𝗲𝘁𝗮𝗶𝗻𝗲𝗱 𝗱𝘂𝗿𝗶𝗻𝗴 𝗜𝗖𝗖 𝗽𝗿𝗼𝗰𝗲𝗲𝗱𝗶𝗻𝗴𝘀?
Duterte would be detained at the ICC Detention Centre in The Hague, managed according to international detention standards (Rome Statute art. 59, Regulations of the Court reg. 99).
𝟭𝟬. 𝗖𝗮𝗻 𝗗𝘂𝘁𝗲𝗿𝘁𝗲 𝗽𝗼𝘀𝘁 𝗯𝗮𝗶𝗹 𝗳𝗼𝗿 𝗵𝗶𝘀 𝗽𝗿𝗼𝘃𝗶𝘀𝗶𝗼𝗻𝗮𝗹 𝗹𝗶𝗯𝗲𝗿𝘁𝘆?
Provisional release (similar to bail) is possible in exceptional circumstances if judges determine no risk of flight, obstruction, or continued crimes exists (Rome Statute art. 60(2)).
𝟭𝟭. 𝗖𝗮𝗻 𝗗𝘂𝘁𝗲𝗿𝘁𝗲 𝗶𝗻𝘃𝗼𝗸𝗲 𝗶𝗺𝗺𝘂𝗻𝗶𝘁𝘆 𝗳𝗿𝗼𝗺 𝗜𝗖𝗖 𝗽𝗿𝗼𝘀𝗲𝗰𝘂𝘁𝗶𝗼𝗻 𝗮𝘀 𝗮 𝗳𝗼𝗿𝗺𝗲𝗿 𝗣𝗵𝗶𝗹𝗶𝗽𝗽𝗶𝗻𝗲 𝗽𝗿𝗲𝘀𝗶𝗱𝗲𝗻𝘁?
No. Official status, including as head of state or former head of state, does not grant immunity before the ICC (Rome Statute art. 27).
𝗗. 𝗦𝘁𝗮𝘁𝗲 𝗖𝗼𝗼𝗽𝗲𝗿𝗮𝘁𝗶𝗼𝗻 𝗮𝗻𝗱 𝗘𝘅𝘁𝗿𝗮𝗱𝗶𝘁𝗶𝗼𝗻
𝟭𝟮. 𝗜𝘀 𝘁𝗵𝗲 𝗣𝗵𝗶𝗹𝗶𝗽𝗽𝗶𝗻𝗲𝘀 𝗹𝗲𝗴𝗮𝗹𝗹𝘆 𝗼𝗯𝗹𝗶𝗴𝗮𝘁𝗲𝗱 𝘁𝗼 𝘀𝘂𝗿𝗿𝗲𝗻𝗱𝗲𝗿 𝗗𝘂𝘁𝗲𝗿𝘁𝗲 𝘁𝗼 𝘁𝗵𝗲 𝗜𝗖𝗖?
From the ICC’s perspective, yes. Obligation to cooperate continues for investigations initiated before withdrawal (Rome Statute art. 127(2)). Domestically, however, cooperation is discretionary under Philippine law post-withdrawal (Republic Act No. 9851, §17).
𝟭𝟯. 𝗖𝗮𝗻 𝗣𝗿𝗲𝘀𝗶𝗱𝗲𝗻𝘁 𝗙𝗲𝗿𝗱𝗶𝗻𝗮𝗻𝗱 𝗠𝗮𝗿𝗰𝗼𝘀 𝗝𝗿. 𝗹𝗲𝗴𝗮𝗹𝗹𝘆 𝗿𝗲𝗳𝘂𝘀𝗲 𝘁𝗼 𝘀𝘂𝗿𝗿𝗲𝗻𝗱𝗲𝗿 𝗗𝘂𝘁𝗲𝗿𝘁𝗲 𝘁𝗼 𝘁𝗵𝗲 𝗜𝗖𝗖?
Legally, yes. Without a binding treaty or domestic legal obligation explicitly compelling surrender post-withdrawal, the decision to cooperate remains discretionary under Philippine law (Republic Act No. 9851, §17).
𝟭𝟰. 𝗪𝗵𝗮𝘁 𝗮𝗿𝗲 𝘁𝗵𝗲 𝗽𝗼𝘁𝗲𝗻𝘁𝗶𝗮𝗹 𝗹𝗲𝗴𝗮𝗹 𝗰𝗼𝗻𝘀𝗲𝗾𝘂𝗲𝗻𝗰𝗲𝘀 𝗶𝗳 𝘁𝗵𝗲 𝗣𝗵𝗶𝗹𝗶𝗽𝗽𝗶𝗻𝗲𝘀 𝗿𝗲𝗳𝘂𝘀𝗲𝘀 𝗜𝗖𝗖 𝗰𝗼𝗼𝗽𝗲𝗿𝗮𝘁𝗶𝗼𝗻?
The ICC may declare the Philippines non-cooperative and refer the matter to the Assembly of States Parties. This has diplomatic and reputational implications but does not involve enforceable sanctions (Rome Statute art. 87(7)).
𝗘. 𝗧𝗿𝗶𝗮𝗹 𝗮𝗻𝗱 𝗣𝗲𝗻𝗮𝗹𝘁𝗶𝗲𝘀
𝟭𝟱. 𝗜𝗳 𝗰𝗼𝗻𝘃𝗶𝗰𝘁𝗲𝗱, 𝘄𝗵𝗮𝘁 𝗽𝗲𝗻𝗮𝗹𝘁𝗶𝗲𝘀 𝗰𝗼𝘂𝗹𝗱 𝘁𝗵𝗲 𝗜𝗖𝗖 𝗶𝗺𝗽𝗼𝘀𝗲 𝗼𝗻 𝗗𝘂𝘁𝗲𝗿𝘁𝗲?
Penalties include imprisonment for a term not exceeding 30 years, or life imprisonment in extreme cases, along with possible reparations to victims (Rome Statute arts. 75, 77).
𝟭𝟲. 𝗜𝗳 𝗗𝘂𝘁𝗲𝗿𝘁𝗲 𝗶𝘀 𝗶𝗺𝗽𝗿𝗶𝘀𝗼𝗻𝗲𝗱, 𝘄𝗵𝗲𝗿𝗲 𝘄𝗼𝘂𝗹𝗱 𝗵𝗲 𝘀𝗲𝗿𝘃𝗲 𝗵𝗶𝘀 𝘀𝗲𝗻𝘁𝗲𝗻𝗰𝗲?
Sentences are served in a state designated by the ICC from among willing States Parties, not at The Hague itself (Rome Statute art. 103).
𝗙. 𝗕𝗿𝗼𝗮𝗱𝗲𝗿 𝗜𝗖𝗖 𝗖𝗼𝗻𝘁𝗲𝘅𝘁 𝗮𝗻𝗱 𝗜𝗺𝗽𝗹𝗶𝗰𝗮𝘁𝗶𝗼𝗻𝘀
𝟭𝟳. 𝗛𝗼𝘄 𝗱𝗼𝗲𝘀 𝗗𝘂𝘁𝗲𝗿𝘁𝗲’𝘀 𝗰𝗮𝘀𝗲 𝗰𝗼𝗺𝗽𝗮𝗿𝗲 𝘁𝗼 𝗽𝗿𝗲𝘃𝗶𝗼𝘂𝘀 𝗜𝗖𝗖 𝗰𝗮𝘀𝗲𝘀 𝗶𝗻𝘃𝗼𝗹𝘃𝗶𝗻𝗴 𝗵𝗲𝗮𝗱𝘀 𝗼𝗳 𝘀𝘁𝗮𝘁𝗲?
Like cases involving Omar al-Bashir (Sudan) and Laurent Gbagbo (Ivory Coast), Duterte’s case underscores accountability regardless of official status. However, Duterte’s case uniquely addresses jurisdiction after withdrawal from the ICC (Rome Statute arts. 27, 127(2)).
𝟭𝟴. 𝗪𝗵𝗮𝘁 𝗱𝗶𝗽𝗹𝗼𝗺𝗮𝘁𝗶𝗰 𝗰𝗼𝗻𝘀𝗲𝗾𝘂𝗲𝗻𝗰𝗲𝘀 𝗺𝗮𝘆 𝗿𝗲𝘀𝘂𝗹𝘁 𝗳𝗿𝗼𝗺 𝗗𝘂𝘁𝗲𝗿𝘁𝗲’𝘀 𝗜𝗖𝗖 𝗰𝗮𝘀𝗲?
Non-cooperation risks diplomatic friction with ICC-supportive states, potentially affecting international relations, aid, and trade incentives.
𝟭𝟵. 𝗪𝗵𝗮𝘁 𝗿𝗼𝗹𝗲 𝗱𝗼 𝗵𝘂𝗺𝗮𝗻 𝗿𝗶𝗴𝗵𝘁𝘀 𝗼𝗿𝗴𝗮𝗻𝗶𝘇𝗮𝘁𝗶𝗼𝗻𝘀 𝗮𝗻𝗱 𝘃𝗶𝗰𝘁𝗶𝗺𝘀’ 𝗳𝗮𝗺𝗶𝗹𝗶𝗲𝘀 𝗽𝗹𝗮𝘆 𝗮𝘁 𝘁𝗵𝗲 𝗜𝗖𝗖?
These entities document crimes, submit evidence, advocate for accountability, and participate in ICC proceedings. Victims may participate directly through legal representatives and can claim reparations if convictions occur (Rome Statute arts. 68, 75).
𝟮𝟬. 𝗪𝗵𝗮𝘁 𝗽𝗿𝗲𝗰𝗲𝗱𝗲𝗻𝘁𝘀 𝗺𝗶𝗴𝗵𝘁 𝗗𝘂𝘁𝗲𝗿𝘁𝗲’𝘀 𝗜𝗖𝗖 𝗰𝗮𝘀𝗲 𝘀𝗲𝘁 𝗳𝗼𝗿 𝗳𝘂𝘁𝘂𝗿𝗲 𝗶𝗻𝘃𝗲𝘀𝘁𝗶𝗴𝗮𝘁𝗶𝗼𝗻𝘀 𝗶𝗻𝘃𝗼𝗹𝘃𝗶𝗻𝗴 𝗵𝗲𝗮𝗱𝘀 𝗼𝗳 𝘀𝘁𝗮𝘁𝗲?
It may clarify ICC jurisdiction post-state withdrawal, reinforce non-immunity of official status, and influence future ICC handling of similar cases involving former national leaders (Rome Statute arts. 27, 127(2)).*
Ralph Sarmiento is the dean of the College of Law of the University of St. La Salle in Bacolod City