The Philippine government’s handover of former president Rodrigo Duterte to the International Criminal Court (ICC) was unlawful, former Supreme Court Associate Justice Adolfo Azcuna said on Thursday.

Azcuna, one of the framers of the 1987 Constitution, made the statement during the third hearing of the Senate Committee on Foreign Relations into Duterte’s arrest on 11 March.

According to Azcuna, while the ICC’s arrest warrant for the former president on a charge of crimes against humanity was legal, the surrender itself was unlawful.

“The warrant of arrest is legal. However, I believe that the surrender was not because the surrender must be pursuant to a treaty and, therefore, to our own laws. 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 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.

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

Balancing act

“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.”

The charge against Duterte includes 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 during Duterte’s drug war. However, local and international human rights groups dispute the figures, saying the actual number of victims could be as high as 30,000.