The Philippine government's move to hand over former president Rodrigo Duterte to the International Criminal Court (ICC) is unlawful, former Supreme Court Chief Justice Adolfo Azcuna said on Thursday.

Azcuna, one of the framers of the 1987 Constitution, said this during the third hearing of the Senate Committee on Foreign Relations into the arrest of Duterte on 11 March.

According to Azcuna, while the arrest warrant of the ICC for the former president for his crimes against humanity charges was legal, the surrender was considered unlawful.

“The warrant of arrest is legal; however, I believe that the surrender is not, because the surrender must be pursuant to a treaty and, therefore, to our own law. Section 17 of Republic Act 9851 brought back the Statute of Rome even after our withdrawal, because it requires that the surrender must be pursuant to the applicable treaty,” he told the Senate panel.

Section 17 of Republic Act No. 9851, also known as the Philippine Act on Crimes Against International Humanitarian Law, Genocide, and Other Crimes Against Humanity, states that “the State shall exercise jurisdiction over persons, whether military or civilian, suspected or accused of a crime defined and penalized in this Act, regardless of where the crime is committed, provided, any one of the following conditions is met.”

Azcuna said that in the case of Duterte, the applicable treaty remains the Rome Statute, the international treaty that established the ICC.

“Thus, we must follow Article 59 of the Statute of Rome, which requires that the custodial state—namely, the Philippines—must first bring the arrested person before a local court to determine two things: first, whether the person is indeed the one named in the warrant; and second, whether the person has been informed of the charges against him or her,” he said.

He continued: “These were not done. Therefore, in my view, there was a violation in the act of surrender.”

Duterte was arrested on 11 March at the Ninoy Aquino International Airport upon his return to the country from a trip to Hong Kong. On the same day, he was transferred to The Hague, Netherlands, where the international tribunal is based.

‘There will be consequences’

While there was a violation in the act of the surrender, Azcuna argued that the procedural safeguards such as Article III of the Bill of Rights are only applicable in the Philippines.

“In the ICC, I believe they follow what is called Male captus bene detentus, meaning that even if the arrest is illegal, the detention can be legal. It does not automatically mean that the person arrested must be released,” he said.

“They will balance the illegality of the arrest with the need to prosecute someone for very serious offenses under international law. In their view, the balance weighs in favor of prosecution; they will prosecute notwithstanding the violation of the procedure in the surrender,” he added.

He expressed belief that the international tribunal would “follow its own procedure, whereas in the Philippines, as it is now pending before the Philippine Supreme Court, in my view, there is a violation and there will be consequences for the violation.”

Duterte is suspected of murder qualified as a crime against humanity, allegedly committed in the Philippines between 1 November 2011 and 16 March 2019.

Based on government data, at least 7,000 people were killed under Duterte's drug war. However, both local and international human rights groups disagreed with the figures, stressing that the actual number of victims could be as high as 30,000.