Former President Duterte and the ICC

Former President Rodrigo R. Duterte (FPRRD) has been arrested by the Philippine government under an Arrest Warrant issued by the International Criminal Court (ICC). He was flown by chartered plane to The Hague on the same day as his arrest and is now in the custody of the ICC, which is located in The Hague, Netherlands.

Some interesting facts about the ICC.

There are 124 countries that are parties to the Rome Statute.

Some 40 countries never signed the treaty, including China, Ethiopia, India, Indonesia, Iraq, North Korea, Saudi Arabia, and Turkey. Several dozen other countries signed the statute but never had their legislatures ratify it. These include Egypt, Iran, Israel, Russia, Sudan, Syria, Thailand, and the United States of America.

Two countries have withdrawn from the ICC: Burundi in 2017 and the Philippines in 2019.

The court has jurisdiction over four categories of crimes under international law: Genocide, War Crimes, Crimes Against Humanity, and Crimes of Aggression.

Watching and reading the news, many may get the impression that FPRRD’s arrest and his subsequent handover to the ICC came as a surprise to him, that he was caught totally unawares and unprepared.

I do not think this overly simplistic view reflects what happened.

FPRRD is a highly intelligent person and an experienced lawyer. He graduated from one of the best law schools in the country, served as a public prosecutor for many years, and was elected and served as mayor of Davao City before becoming the president of the country.

A more plausible theory is that FPRRD knew there was a good possibility he would be arrested upon his return to the Philippines.

Before he left for Hong Kong on March 8, 2025, there was already talk on social media about the issuance of an arrest warrant.

That Saturday and Sunday, platforms like Facebook were flooded with posts suggesting FPRRD was flying to Hong Kong to avoid arrest due to the Red Notice issued by the ICC, considering that China, which Hong Kong is a part of, is not a member state of the ICC.

Assuming that FPRRD himself did not see these posts, it is highly improbable that none of his advisors or supporters noticed them.

FPRRD’s return to the Philippines on March 11 was likely the result of a conscious decision made by him or his advisers. He could have stayed in Hong Kong visa-free for up to 14 days, or until March 21, without any issue.

This additional time would have allowed his team to verify reports circulating on social media about the Red Notice or a possible arrest upon his arrival. Moreover, his legal team could have used this time to file a petition with the courts for a Temporary Restraining Order to prevent any arrest.

Some of his critics have suggested that China refused to provide FPRRD with protection, which then compelled him to return to the Philippines. However, this theory does not seem plausible.

His visa-free stay had not even lapsed, and he could have easily applied for a visa to stay longer in Hong Kong, which he most likely could have obtained. There was no reason for China or Hong Kong to deny such a request because FPRRD had no pending cases in the Philippines and China was not a member state of the ICC.

Furthermore, assuming that the Philippine government was able to keep the arrest plan a secret, allowing FPRRD and his advisers to believe that an arrest was not imminent, it is overly simplistic to think that they would not take basic precautions given the circulating rumors and news about the arrest warrant.

FPRRD could have easily changed his flight from Hong Kong to Manila to one from Hong Kong to Davao, an airport that also receives international flights from Hong Kong.

It would have been extremely difficult for the government to arrest him in Davao, as he continues to enjoy strong support in the Visayas and Mindanao. His supporters could have easily overwhelmed the airport and prevented any arrest.

Even if the government successfully arrested FPRRD upon his arrival at Davao International Airport, he could have expected much better treatment there than in Manila or NAIA.

The foregoing may suggest that FPRRD himself was not opposed to, or in fact wanted, to be tried and face the charges against him before the ICC.

For its part, it seems that the current administration does not desire to conduct any proceedings in the Philippines against FPRRD due to the potentially explosive political nature of the situation and the social unrest it might cause.

The ICC declares Complementarity as one of its guiding principles, which provides that the ICC is intended to complement, not replace, national criminal systems. It prosecutes cases only when states are unwilling or unable to genuinely do so. (www.icc-cpi.int)

In 2017, Jude Sabio, lawyer for confessed Davao Death Squad hitman Edgar Matobato, filed a complaint before the ICC against FPRRD and others, alleging crimes against humanity, citing mass murder in the Philippines which he claims began when FPRRD was mayor of Davao City.

A few months later, former Sen. Antonio Trillanes IV and Magdalo party-list Rep. Gary Alejano filed a supplemental communication before the ICC asking the court to investigate FPRRD’s war on drugs, arguing that the Philippine government had shown no interest in holding him accountable for alleged crimes against humanity.

It was in this context that the cases were filed with the ICC, as the complainants likely felt that filing them in the Philippines would not be effective, given that FPRRD was president at the time.

The Philippines has been a state party to the Rome Statute since November 1, 2011. However, during FPRRD’s presidency, the Philippines deposited a written notification of withdrawal from the Rome Statute on March 17, 2018. The Philippines’ withdrawal took effect on March 17, 2019.

According to the ICC, the Philippines’ withdrawal from the Statute took effect on March 17, 2019. As such, the court retains jurisdiction over alleged crimes that occurred on the territory of the Philippines while it was a state party, from November 1, 2011, through March 16, 2019. The investigation is limited to this period. (https://www.icc-cpi.int/philippines)

The Supreme Court of the Philippines, in Pimentel v. Cayetano (G.R. No. 238875, March 16, 2021), declared that withdrawing from the Rome Statute does not discharge a state party from the obligations it incurred while a member.

The Court cited Article 127(2) of the Rome Statute, which 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 already under consideration by the Court prior to the date on which the withdrawal became effective.” (Emphasis supplied)

That being said, the ICC does not have any enforcement powers or personnel to enforce any warrant. What this means is that if the Philippines does not want to cooperate or serve the arrest warrant by arresting FPRRD, there is nothing the ICC can do.

However, whichever way FPRRD’s case is decided, it will surely be a landmark international law case that will be analyzed and taught in schools for years to come.

(The author, Atty. John Philip C. Siao, is a practicing lawyer and founding Partner of Tiongco Siao Bello & Associates Law Offices, an Arbitrator of the Construction Industry Arbitration Commission of the Philippines, and teaches law at the De La Salle University Tañada-Diokno School of Law. He may be contacted at jcs@tiongcosiaobellolaw.com. The views expressed in this article belong to the author alone.)