DUTERTE AND THE ICC: A COMPREHENSIVE ANALYSIS

MORE than a week after former President Rodrigo Roa Duterte was arrested and detained in The Hague by the International Criminal Court, in close coordination with International Police and relevant Philippine Agencies, it is still a hot talk as to whether or not the former President may be brought back in the country for the purposes of trying and hearing his crimes against humanity in relation to the extra-judicial killings that happened during his administration as a City Mayor and the President of the Philippines.

The ICC maintains that it still has jurisdiction over alleged crimes committed in violation of customary and general principles of international law in the Philippines prior effectivity of the country’s withdrawal in the ICC. This claim was further enunciated in one Supreme Court case: “Until the withdrawal took effect on March 17, 2019, the Philippines was committed to meet its obligations under the Rome Statute. Any and all governmental acts up to March 17, 2019 may be taken cognizance of by the International Criminal Court.” – Supreme Court in Pangilinan v Cayetano. It is, however, argued by some legal practitioners that this ruling was a mere obiter dictum – a statement irrelevant to the case, and therefore does not have any jurisprudential value – hence, is incorrect to be cited due to it not having formed part as a law of the land. In my analysis of long line of Supreme Court cases, however, it is the Supreme Court who decides whether a statement in their ruling is a mere obiter or not. But before declaration by the Supreme Court that it is an obiter, it must be followed and treated as part of the law of the l land – for it must be treated with jurisprudential value.

The more underlying question in here, however, is the effectivity and validity of the warrant of arrest enforced in the sovereign state of the Philippines. For it is an elementary principle in International Law and in Domestic Law, that any foreign judgment or orders, even coming from UN bodies, must be recognized first by Philippine Court to be enforced in the domestic sphere. In this case, the validity of the foreign-issued warrant of arrest may be assailed before the ICC to satisfy grounds for illegal arrest and maybe violation of domestic due process, which must also be observed in enforcement of the same.

Duterte is now detained in the Netherlands, and any attempt to bring him home must not only conform to the International Law, but must also respect the law of the land of the Netherlands. In this case, conflicts may arise. While bringing Duterte home may be hard to do, it may be done if the counsel to the defense succeeds to assail the validity of the warrant of arrest enforced without concurrence of Philippine Courts. But from the way International Law has worked in the past years:

THE BEST POSSIBLE WAY FOR THE PHILIPPINES TO BRING THE FORMER PRESIDENT BACK IS TO PROVE BEFORE THE ICC THAT “PHILIPPINE COURTS HAVE THE COMPETENCE TO HEAR AND TRY THE FORMER PRESIDENT”.