Duterte’s Surrender to ICC: Legal Challenges and Consequences for Enablers

Duterte’s Surrender to ICC: Legal Challenges and Consequences for Enablers | Daily Tribune

In the domestic rules of court, a complaint becomes invalid and thus does not proceed to trial if the execution of the arrest warrant is hampered by legal infirmities.

In weighing the process that led to former President Rodrigo Duterte’s bundling to The Hague, former Associate Justice Adolf Azcuna commented that while the arrest warrant for Duterte was valid, his “surrender” by the government to the International Criminal Court (ICC) was not.

Yet, he expressed belief that the ICC will not give weight to the illegal handover since international courts follow the doctrine of male captus, bene detentus (wrongly captured, properly detained).

Azcuna, however, stated that the habeas corpus case filed by the children of the former President before the Philippines’ Supreme Court (SC) may make transferring his custody to the international tribunal a judicial issue. If so, that may result in the enablers of the arrest and transfer of Duterte being subjected to prosecution.

The habeas corpus case has not been rendered moot simply because the Philippines can no longer cause the return of the former President as he is already in the hands of the ICC, he explained.

“There’s another dimension to the case, which is the legality of the surrender, and that is not moot. The SC can rule on that,” Azcuna said. “Section 17 of Republic Act 9851 provides that in case someone is already being investigated by an international tribunal, the Philippines may surrender such person, but the last sentences in the law say it must be pursuant to treaty obligations.”

The enablers of Duterte’s “kidnapping” to The Hague mentioned the provision in the Senate inquiry to justify his surrender to Interpol (International Criminal Police Organization), which they claimed sought to implement the ICC arrest warrant.

Azcuna asked, “Was there still a treaty or not? If there is no treaty, then you cannot surrender because such a process under Section 17 of the law must be pursuant to treaty obligations.”

“If there was still a treaty, then you would have to follow it. Section 59 of the Rome Statute requires Duterte to be brought first to a local court.” Azcuna posited that in either case, there was a violation of the law in the claimed surrender.

If the High Court determines that the arrest and surrender were unconstitutional or illegal, officials involved could face civil suits for damages.

Under Article 32 of the Philippine Civil Code, public officers who violate constitutional rights such as the right to liberty may be held liable for damages caused by their actions, especially if they act in bad faith or with gross negligence.

The petitioners in the habeas corpus case argued that the ICC lacked jurisdiction after the 2019 withdrawal from the Rome Statute and that cooperation with the ICC was unconstitutional.

A ruling affirming this could also expose officials to claims of unlawful detention or arbitrary arrest.

The Supreme Court could also deem their actions a grave abuse of discretion or misconduct, particularly if the court finds they bypassed judicial oversight or acted hastily to avoid review, as the petitioners alleged.

The Office of the Solicitor General’s recusal from defending the officials suggests a potential internal acknowledgment of legal vulnerabilities, which could amplify administrative scrutiny.

The basic premise, thus, in the pursuit of the habeas corpus case is that while the person is impossible to produce because of Duterte’s illegal surrender to ICC jurisdiction, those who made it happen remain accountable.

Such a situation will become highly paradoxical if Duterte is released and the enablers of his arrest are penalized and detained due to their folly.