by Dr. Perfecto Caparas, SJD
The Philippines has taken a bold, decisive step in arresting and surrendering to the International Criminal Court former president Rodrigo Duterte to face charges of crimes against humanity for the murder of 12,000-30,000 civilians during his so-called “war on drugs.”
On March 14, 2025, Duterte appeared via video link before ICC Pre-Trial Chamber I Presiding Judge Iulia Antoanella Motoc, Judge Reine Adélaïde Sophie Alapini-Gansou, and Judge María del Socorro Flores Liera. During his publicly broadcast first appearance, Duterte verbally confirmed his own identity and date and place of birth before the court. Salvador Medialdea, his handpicked lawyer, personally represented Duterte during the proceedings. Judge Motoc informed Duterte of the crimes he allegedly committed and his rights under the ICC Statute. The court set September 23, 2025 for the hearing to either confirm or decline to confirm those charges of murder as crimes against humanity.
Philippines’ Legal Basis
On March 11, 2025, the Philippine National Police arrested Duterte and handed him over to The Hague by virtue of the judges’ arrest warrant sent to the Philippine government and Interpol. Hence, the Philippines, in effect, decided to allow the ICC, rather than its own courts, to prosecute and try Duterte for crimes committed during his reign of terror. In arresting Duterte, the government relied on Republic Act 9851, the Philippine Act on Crimes Against International Humanitarian Law, Genocide, and Other Crimes Against Humanity. Its Chapter VII, Section 17 states:
In the interest of justice, the relevant Philippine authorities may dispense with the investigation or prosecution of a crime punishable under this Act if another court or international tribunal is already conducting the investigation or undertaking the prosecution of such crime. Instead, the authorities may surrender or extradite suspected or accused persons in the Philippines to the appropriate international court, if any, or to another State pursuant to the applicable extradition laws and treaties.
ICC Arrest Warrant
The three ICC judges issued a “Warrant of Arrest for Mr. Rodrigo Roa Duterte” on March 7, 2025. Classified as “secret,” the warrant mandates Duterte’s arrest and surrender to the ICC for the execution by death squads of mostly urban poor dwellers. The judges stated:
Taking into account the totality of the information before it, the Chamber finds reasonable grounds to believe that Mr. Duterte is individually responsible for the crime against humanity of murder (article 7(1)(a) of the Statute) as an indirect co-perpetrator within the meaning of article 25(3)(a) of the Statute, committed during the Relevant Period.
The ICC judges deemed Duterte’s arrest to be necessary and granted ICC Chief Prosecutor Karim Khan’s February 10, 2025 application for an arrest warrant. Explaining the reasons for ordering his arrest, the judges declared:
The Prosecution submits that the arrest of Mr Duterte is necessary to ensure his appearance before the Court. After evaluating the information submitted by the Prosecution, the Chamber accepts that ‘there is no reasonable expectation that he would cooperate with a summons to appear issued by the Court’. The Chamber observes that Mr. Duterte, even though no longer the President of the Philippines, appears to continue to wield considerable power. Mindful of the resultant risk of interference with the investigations and the security of witnesses and victims, the Chamber is satisfied that the arrest of Mr. Duterte is necessary within the meaning of article 58(1)(b)(i) of the Statute to ensure his appearance before the Court. (citations omitted)
Philippine Laws
The targeted killing of 12,000-30,000 civilians qualifies as “other crimes against humanity” of “willful killing” under Section 6(a) of RA 9851, a crime that is equivalent to crimes against humanity of murder under Article 7(1)(a) of the ICC Statute.
“[W]hen committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack,” the mass murder qualifies as “other crimes against humanity” of “willful killing” under RA 9851.
RA 9851 became law on December 26, 2009.
Duterte’s political career spans several decades. Before being elected president, he served as Davao City vice mayor, mayor, and congressman. He became Davao City mayor from February 5, 1988 to June 30, 1998; congressman from June 30, 1998 to June 30, 2001; and Davao City mayor from July 1, 2001-June 30, 2010.
ICC Statute
The ICC Statute came into force in the Philippines on November 1, 2011, and remained effective until March 16, 2019, after Duterte unilaterally withdrew the country from the treaty without the approval of the Senate. He was serving as Davao City vice mayor when the ICC Statute came into force. He led Davao City as vice mayor from June 30, 2010-June 30, 2013 and as Davao City mayor from July 1, 2013 to June 30, 2016, before becoming president from June 30, 2016 to June 30, 2022.
RA 9851 and the ICC Statute were concurrently in force, at least until March 16, 2019 in the case of the ICC Statute, during his presidency.
Davao Killing Fields
Fr. Amado Picardal documented 1,424 victims, including 57 females and 132 children, allegedly killed by Duterte’s Davao Death Squad from 1998-2015. Despite being tagged as the DDS founder and leader, Duterte was not prosecuted and tried for murder under the Revised Penal Code, effective since December 8, 1930. And despite the lapse of almost 16 years after RA 9851 became effective, Duterte has not been formally investigated nor charged for RA 9851’s “other crimes against humanity” in the form of “willful killing” before the courts.
State-sponsored Killings
The mass murders during his presidency may amount to state-sponsored killings, according to the Philippine Supreme Court. In its en banc resolution dated April 3, 2018, the Supreme Court stated: “… we take judicial notice of the Duterte Administration’s 2017 Yearend Report where deaths in cases related to illegal drugs… are touted as accomplishments. The government’s inclusion of these deaths among its other accomplishments may lead to the inference that these are state-sponsored killings.” The Supreme Court was referring to the 3,967 “Drug personalities” killed and 16,355 Homicide Cases under Investigation cited in The President’s 2017 Key Accomplishments.
The ICC cited both the Davao and nationwide killings in ordering Duterte’s arrest. In the warrant of arrest, the three ICC judges wrote:
…the Chamber is 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. Moreover, 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, a sample of which is analysed in the section below. The material before the Chamber shows that the killings shared common features, such as the location and modus operandi, including the method of killing, the profiles of victims and the profiles of perpetrators. (citations omitted)
Given this context, the ICC judges will likely invoke Article 17 of the ICC Statute (that pertains to issues of admissibility) and assert its complementary jurisdiction to prosecute and try Duterte based on a finding that “the State is unwilling or unable genuinely to carry out the investigation or prosecution.”
ICC Jurisdiction
Duterte’s team of lawyers expressed plans to impugn the ICC’s jurisdiction to hold him for trial.
The ICC, however, asserts its jurisdiction over the crimes committed in the country, stating:
As to the temporal jurisdiction, the Chamber recalls, that ‘[w]hile the Philippines’ withdrawal from the Statute took effect on 17 March 2019, the Court retains jurisdiction with respect to alleged crimes that occurred on the territory of the Philippines while it was a State Party, from 1 November 2011 up to and including 16 March 2019.’ It further recalls that ‘[t]he Court’s jurisdiction and mandate is exercised in accordance with the provisions of the Statute, an international treaty to which the Philippines was a party at the time of the alleged crimes for which the investigation was authorised. By ratifying the Statute, the Philippines explicitly accepted the jurisdiction of the Court, within the limits mandated by the treaty […]. These provisions and the ensuing obligations remain applicable, notwithstanding the Philippines[’] withdrawal from the Statute.’
7. As the alleged conduct has taken place between 1 November 2011 and 16 March 2019 on the territory of the Philippines, it falls within the Court’s jurisdiction. (citation omitted)
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A licensed attorney in the Philippines, Perfecto Caparas holds a Doctor of Juridical Science and a Master of Laws degree from Indiana University Robert H. McKinney School of Law. His doctoral dissertation is titled Impunity in Ex-Philippine President Rodrigo Duterte’s “War on Drugs” – Combatting Mass Atrocities.
