Duterte’s arrest for the ICC – Indian Blog of International Law

Aman Kumar

The recent arrest of Mr. Rodrigo Roa Duterte, the former president of Philippines, has spurred and reignited discussions about immunity of heads of state in front of the International Criminal Court (ICC/Court). The arrest pertains to the ICC’s investigation in the Situation in Philippines which has been quite on-off so far. After the Office of the Prosecutor of the ICC (OTP) had announced an investigation in the situation, the Philippines requested for a deferral under Article 18(2) of the Rome Statute (Statute/RS). Philippines said that they were already investigating the cases the OTP intended to investigate and hence requested for the deferral. However, the OTP subsequently requested the Court to allow it to resume its investigation because it was unsatisfied with the investigation the Philippines was conducting. On 26^th January 2023, the court allowed OTP’s request, which was appealed against by the Philippines. The Appeals Chambers also allowed the request, albeit with a split verdict of 3-2.

Upon concluding its investigation, the OTP applied for an Arrest Warrant against Duterte and the same was issued on the 07^th of March 2025. Pursuant to the warrant, Duterte was arrested and surrendered to the ICC’s custody on 12^th March 2025.  This post discusses the warrant and how the ICC satisfied itself of the need to issue the warrant against Duterte.

Charges against Duterte

In its request, the OTP listed three crimes for which it’s alleging responsibility on Duterte. These are the Crime against Humanity of Murder article [article 7(1)(a), RS], Torture [article 7(1)(f), RS] and Rape [article 7(1)(g), RS]. It classified Duterte as an alleged indirect co-perpetrator under article 25(3)(a) of the Statute, for these crimes.

However, while adjudicating on the request, the court noted that “although the information provided allows the Chamber to conclude that the material elements of the alleged crimes are fulfilled, the Chamber considers that the existence of a nexus between the alleged acts and the attack, as defined above, is insufficiently shown. Therefore, the allegations under Counts 2 and 3 cannot be retained for the purpose of the present warrant of arrest.” This meant that though the OTP wanted arrest warrant for crime against humanity of Murder, Rape and Torture, the ICC only issued the warrant for Murder.

On Jurisdiction and Admissibility

While adjudicating on the application for arrest warrant, the court noted that it had both temporal and territorial jurisdiction in the case. This is important because Duterte had withdrawn Philippines from the membership of the court after the OTP had announced an investigation against his alleged crimes. As I had noted earlier, such a withdrawal was going to have no impact on his culpability, since the ICC had jurisdiction over any crimes committed on the territory of Philippines or by a national of Philippines, for the time during which Philippines was a member if the court. Duterte subsequent withdrawal from the court was going to have no impact on his actions in Philippines while it was a member of the court. Here, I must also highlight that the Dissent in the Appeals Chamber’s decision of 18^th July 2023 on the issue of resuming investigation did note that the Court doesn’t have temporal jurisdiction in this case (see section III of Dissent).

Prerequisites for issuance of an arrest warrant

Article 58 of the Rome Statute provides that court, through the Pre-Trial Chamber, shall issue an arrest warrant if it is satisfied that there are reasonable grounds to believe that the person has committed a crime within the jurisdiction of the Court.

In its decision, the PTC first noted that the ‘contextual elements’ of the alleged crimes were present. Since the OPT’s application had mentioned crimes against humanity, the contextual elements of crime of murder were examined by the court. These elements, as listed in the Elements of Crime document are:

1. The perpetrator killed one or more persons.

2. The conduct was committed as part of a widespread or systematic attack directed against a civilian population.

3. The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack against a civilian population. (emphasis supplied)

Further, the EoC document also clarifies that the “ “Attack directed against a civilian population” in these context elements is understood to mean a course of conduct involving the multiple commission of acts referred to in article 7, paragraph 1, of the Statute against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack.”

The court noted that it was “satisfied that an ‘attack’ directed at a civilian population pursuant to an organisational policy during the period Mr Duterte had been the head of the DDS and a State policy during the period he had been the President of the Philippines, within the meaning of article 7(1) of the Statute, took place.” (para 11) It is noteworthy that the court took cognizance of Duterte’s position as leader of an organisation, and leader of a state. Hence, it said that it’s reasonable to believe that Duterte committed crimes in furtherance of both—an organisational policy, and a state policy.

It also noted that “there are reasonable grounds to believe that this attack was both widespread and systematic: the attack took place over a period of several years, and thousands people appear to have been killed.” (para 11) The EoC also clarifies that the ‘perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack’. This essentially is the mental element of the crime. On this the court noted that considering Duterte leadership position at the organisation and subsequently as head of the state, he ‘necessarily knew about the operations and their scope’. It observed that “the material shows…that by having defined the scope and purpose of the operations, Mr Duterte intended the conduct to be part of the widespread and systematic attack directed against all persons designated as involved in criminal activities, especially drug related ones”. (para 12) It thus concluded that there were reasonable grounds to believe that Crime against Humanity of murder was committed in Philippines during the relevant period.

Duterte’s individual criminal responsibility

Under the rubrics of the RS, the court needs to satisfy itself that the alleged perpetrator bears individual criminal responsibility. This is provided under Article 25, which in relevant part states that:

…

a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person:

a) Commits such a crime, whether as an individual, jointly with another or through another person, regardless of whether that other person is criminally responsible:

…

The court noted that there are reasonable grounds to believe that Duterte bears individual responsibility as an indirect co-perpetrator for commission of crime against humanity of Murder, under Article 25(1)(a). It reached this conclusion after noting that Mr Duterte was the founder and head of the ‘Davao Death Squad (DDS)’, the Mayor of Davao City, and the President of the Philippines. It noted that Duterte had de facto control over DDS, and had de jure control over all the executive departments, bureaus and offices, including the Philippine National Police (‘PNP’), the National Bureau of Investigation (‘NBI’) and the Philippine Drug Enforcement Agency (‘PDEA’). (paras 19-21)

Necessity of arrest

As per Article 58 of the RS, the court can issue an arrest warrant if, inter alia, it is satisfied that the arrest of the person appears necessary. In the present case, the court agreed with the OPT’s claim that there was no reasonable expectation that Duterte would cooperate with a summons to appear issued by the Court. The court noted that Duterte ‘appears to continue to wield considerable power’ (para 26). Therefore, being “(m)indful of the resultant risk of interference with the investigations and the security of witnesses and victims”, it was satisfied that an arrest warrant was necessary to ensure Duterte’s appearance before it for further proceedings.

Conclusion

In recent past, the court has issued arrest warrant against some sitting heads of states, like Vladimir Putin and Benjamin Netanyahu. It has also applied for arrest warrants against Haibatullah Akhundzada, the supreme leader of Taliban. The OTP’s recent actions seem bolstered by the 2019 decision of the Appeals Chamber of the court in Jordan referral re Al-Bashir. However, the current prosecutor has been picking and choosing which state and which head of state to go against. The fact that he has prioritised investigating actions of Taliban over the United States Army, or the Central Intelligance Agency of the United States doesn’t help to counter the claims of ICC as a neo-imperial tool. Nonetheless, the arrest of Duterte must be seen as a victory for the victims of his ‘war on drugs’ campaign in Philippines, and of international criminal justice system.