Foreign subservience

Former Supreme Court Associate Justice Adolf Azcuna introduced an argument that will stick in the public’s psyche whenever former President Rodrigo Duterte’s surrender to a foreign court is debated: his handover was illegal.

While the former magistrate’s perspective may have little weight on the ICC now that it has custody of Duterte, the process undertaken in his transfer will be among the points that his lawyers will likely raise to seek the dismissal of the crimes against humanity charge against him even before the 23 September confirmation of charges hearing.

This stage is critical in the ICC’s judicial process, as it will determine whether there is sufficient evidence to proceed to a full trial on allegations centered on at least 43 murders, including extrajudicial killings linked to the Davao Death Squad and the anti-drugs campaign.

The defense, led by Nicolas Kaufman, will have the opportunity to challenge the evidence, raise objections, and argue against the case.

If confirmed, the case advances to a trial chamber for further proceedings, which could take months or years. If not, the charges may be amended or dropped.

Azcuna’s point that the arrest warrant was legal but the surrender was not exposed Philippines officials to liability and lent credence to accusations of a political motivation.

The transfer was termed a “kidnapping” that aligned with Azcuna’s legal view.

To the ICC, Azcuna’s position is an indirect challenge to the court’s process by highlighting the custodial state’s obligations, though he did not dispute the ICC’s right to prosecute.

His focus on RA 9851 and Article 59 of the Rome Statute could embolden legal challenges in the Philippines, though Duterte’s physical transfer to The Hague limits that practical recourse.

The enablers of the arrest cast Duterte’s surrender as a procedural necessity in the Senate investigation, but Azcuna’s perspective indicated an unlawful act that violated Philippine and international law.

His insistence on a local court review underlined the haste with which Duterte’s surrender was undertaken.

While not negating the ICC’s case momentum, with Duterte already in The Hague, Azcuna’s compelling critique remains academic unless the Supreme Court finds it to be a judicial issue and takes it up.

Azcuna emphasized a crucial omission: Duterte wasn’t brought before a domestic court to confirm his identity or the charges, which he saw as a legal necessity.

The enablers of the arrest insisted during the Senate inquiry that the International Crime Police Organization’s (Interpol) notice sufficed, which became another issue after it was found that the evasive Special Envoy on Transnational Crime Ambassador Markus Lacanilao assumed the role of Interpol representative during Duterte’s capture and whisked him off to The Hague.

Interpol issued a so-called diffusion letter instead of what was initially claimed to be a Red Notice on Duterte to implement the ICC warrant of arrest. The country is not required to comply with this warrant since it is not a member of the intrusive tribunal.

Thus, the enablers had to admit in the Senate proceeding that Duterte was surrendered despite the implications of subordinating the local judiciary to an international body.

The government has tried to avoid suggestions of ICC jurisdiction, citing the Interpol order to skirt the post-2019 withdrawal issue.

The ICC asserted its authority over pre-2019 crimes, dismissing sovereignty concerns.

Azcuna suggested that RA 9851, or the Philippine Act on Crimes Against International Humanitarian Law, Genocide, and Other Crimes Against Humanity, “brought back” the Rome Statute obligations, but only to the extent that proper surrender procedures (like Article 59) must be followed, not to affirm the ICC’s jurisdiction outright.

“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 law. Section 17 of Republic Act 9851 brought back the Rome Statute even after our withdrawal because it requires that the surrender be under the applicable treaty,” Azcuna said during the Senate proceeding.

He referenced Article 59 of the Rome Statute, which mandates that a custodial state, such as the Philippines, bring an arrested person before a local court to verify their identity and ensure they are informed of the charges — steps that were not followed.

Focusing on international justice is a double-edged sword: Duterte was swiftly targeted, but a dispassionate legal perspective would likely see him released just as fast.