No Immunity for Impunity: ICC Prosecutor v Duterte

This article is co-authored by Cathleen Ong and Luo Xuhong. Cover image by Edden Chew. 

*This article is published in collaboration with Doomsday Diplomacy, your next one-stop platform for all things foreign affairs. Check out Doomsday Diplomacy's telegram channel here.

Few in Manila on the morning of March 11 would have anticipated the events that were about to unfold later that day. Well, except those in the upper echelons of President Ferdinand Marcos Jr’s government. It seemed like a well-oiled operation planned in advance: as 16th President (2016-22) Rodrigo Duterte landed in the Filipino capital after a brief trip to Hong Kong, he was swiftly taken into custody. 

A Gulfstream G550 jet that took Duterte to the Netherlands, chartered and paid for by the Office of the President. Image credit: AFP

Hours later, he was on a private jet bound for the Hague, the result of the execution of an International Criminal Court (ICC) arrest warrant against him on multiple charges of crimes against humanity for his self-declared war on drugs during his tenure as Davao City mayor and later on as Philippines President.

Duterte is accused of allegedly committing crimes against humanity of murder under article 7(1)(a) and crimes against humanity of torture and rape under articles 7(1)(f) and 7(1)(g) in the Philippines between 1 November 2011 and 16 March 2019

For a man who has unabashedly claimed credit for the bloody campaign which, by some estimates, has left up to 30,000 dead, the long arm of the law may have finally caught up with him. Just over a year ago, justice for the slain was thought to be next to impossible - Duterte ordered the withdrawal of the Philippines from ICC jurisdiction in 2018 and his successor Marcos Jr has repeatedly emphasised a policy of non-cooperation with the ICC probe. 

What led to this drastic about-turn? More importantly, can the ICC deliver long-delayed justice?   

The License to Kill 

ICC charges stem from the “Davao Death Squads” that first flourished during Duterte’s tenure as Davao City mayor. The macabre term referred to a group of vigilantes paid by local officials to keep the streets drug-free using whatever means available. This translated into summary executions of mostly petty drug dealers and casual users under the guise of targeting wanted criminals that allegedly resisted arrest. 

Members were protected by the Davao government and granted immunity from any criminal responsibility. When Duterte became President in 2016, this brutal policy was extended nationwide (mostly across the capital city Manila and its surrounding suburbs) and state-sanctioned killings became increasingly rampant even amidst growing outcry.

Protestors decry Duterte’s drug war as the death toll mounted. Pictured here are banners remembering the shooting of 17 year old student Kian delos Santos by police in Manila. Image credit: Human Rights Watch

When Marcos Jr. took office in 2022, he pledged a halt to the bloody campaign. Yet, he did essentially nothing to expedite investigations into possible abuses committed by his predecessor's forces. In fact, the ICC resumed its own probe in 2023 after expressing its dissatisfaction at the Philippines’ own investigations. 

“A threat to our sovereignty...will not lift a finger to help any (ICC) investigation” ~Marcos Jr., Jan 24

A Political Ploy

Marcos Jr appears to have a change of mind. At the heart of this intriguing development is a tale of political undercurrents. The story goes back to 2022, when the Duterte and Marcos families form an alliance to win the 2022 Philippine general election in a landslide victory with Marcos Jr running as president and Duterte’s daughter Sara as VP. 

However, cracks in the alliance soon showed: Sara Duterte was given control of the education ministry instead of the defense ministry while Duterte and Marcos publicly accused each other of being drug addicts. The rift worsened in end-24 as Sara Duterte was impeached by the House allegations of corruption and most bizarrely, her claims to have hired a hitman on Marcos Jr. If convicted by the Senate in a hearing scheduled for later this year, Sara Duterte will be barred from holding office, thereby ending her ambitions to run for President in 2028.

As the political feud escalated beyond control, Marcos Jr confirmed his policy u-turn in November 2024. Manila was now obliged to comply with any potential ICC warrant naming Duterte, foreshadowing the former president’s fate. This raises a graver subject about the ICC’s impartiality – their collaboration with Philippine authorities in effecting Duterte’s arrest.

The implicit connection existing between the two bodies should ring alarm bells if it hasn’t yet. Though the international body has sworn by oath to be accountable and a fair executor of the rule of law, its actions in the Philippines spell a different story.  There is a possibility that the ICC has become selectively used to remove unpopular choices when convenient, elucidating its partiality. This proves a troubling reality, especially for an institution intending to be a neutral arbiter of justice. 

An additional issue up for contention is whether the ICC, in Duterte’s arrest, had invoked the principle of complementarity lawfully. According to Article 17 of the Rome Statute, the ICC can only prosecute or investigate when national jurisdictions are “unwilling or unable to genuinely carry them out”. Supporters of Duterte, including Philippine Senators Jinggoy Estrada and Robin C. Padilla, hold that the Philippines has a strong and independent judicial system which can uphold a fair sentence. In a debate in 2023, the two figures emphasised how the war on drugs had been thoroughly investigated by the Department of Justice and the Philippine National Police-Internal Affairs Service.  

However, on paper, current investigations fail to look into the roles of high-ranking officials, which are the most responsible for planning and implementing Operation Tokhang. Furthermore, the existence of a statutory mechanism does not preclude having a genuinely functioning mechanism. Therefore, an absence of proper investigation warrants an intervention by the ICC, fulfilling the principle of complementarity’s objectives – fairness and accountability.  

This is supplemented by strong public support in the country. A March 2024 survey involving more than 1,700 Filipinos revealed that nearly three in five approved of the investigations on the ICC. This begs a fundamental question – did Marcos Jr. strike the iron hot, and capitalise on a shift in opinion to advance his political motives? Still, it is noteworthy that readers have to reconcile the limited role played by domestic politics in the ICC. 

The ICC has the preconditions for a fair trial fulfilled, but whether it is a similar case in reality is contemplated in the next section. 

A fair trial?

Detractors claim that Duterte was treated inhumanely post arrest, implying that he was exposed to prejudiced conditions. They maintain that he was denied proper medical care despite multiple requests. Beyond being treated equitably, a broader point of contention swells around the legality of Duterte’s arrest. 

In Article 127(2) of the Rome Statute, it is sworn that a country’s withdrawal from the treaty does not influence obligations which arose prior to it. The ICC posits that regardless of the principle of compartmentality, they should be legally able to hear Duterte. However, this fails to acknowledge that the obligation is only applicable towards a state, and not an individual of it, as held in Pangilinan et al. v. Cayetano et al. (G.R. No. 238875, 2021). 

A more dire lapse lies in how international arrest warrants must comply with local laws. In the case of People v. Salazar (G.R. No. 174452, 2012), it was reaffirmed that arrests without warrants in the Philippines were illegal. 

This is with the exception of two clauses outlined in Rule 113, Section 5 of the Rules of Criminal Procedure which are in hot pursuit or flagrante delicto. Since Duterte was neither a fleeing suspect or caught red-handed, in theory, his arrest is illegal.

Section 17 of Republic Act No. 9851, or the (Philippine Act on Crimes Against International Humanitarian Law, Genocide, and Other Crimes Against Humanity) further foregrounds this. The act postulates that subservience to international law is to be viewed as discretionary, instead of mandatory. 

This is in line with the Supreme Court’s stance that domestic jurisdiction retains precedence if national sovereignty is at stake. The stand was reinforced in Magallona v. Ermita (G.R. No. 187167, 2011). However, it is highly disputable that Duterte’s arrest constitutes a breach of national sovereignty. 

There is dissent however, surrounding the ICC’s ability to prove that Duterte had committed this crime beyond a reasonable doubt. First and foremostly, the ICC must showcase that civilians had experienced a systematic, and widespread attack. Duterte’s operation had not, at least prima facie, intended to murder innocent individuals. Even if police officers had engaged in abuses themselves, such crime was not executed on an organised basis. Hence, they should be prosecuted domestically, and should not necessitate intervention. 

The ICC’s perceived lack of impartiality is exacerbated by its inconsistent approach to other cases. For example, when allegations were raised in Thailand’s drug war under Thaksin and Colombia’s counter-narcotics-campaign, they were unprosecuted due to the recognition that drug enforcement remained within the boundaries of state sovereignty. 

Secondly, the aforementioned nature of the crimes suggest that they were committed in silos, and should be viewed as isolated cases instead of international crime against humanity. Lastly, the arrest of Duterte marks the first case where anti-drug operations are prosecuted.

With multiple lapses highlighting the inequitable application of legal precedent, the legality of Duterte’s arrest has been called into question. Whether Duterte’s arrest goes beyond being biased politically, but also in nature now comes to the forefront. 

ICC and Diplomacy

A glance at the ICC’s statistics over its 20-odd years of history isn’t particularly inspiring - of the 60 arrest warrants issued since 2002, only 21 suspects have been detained and another 31 are still at large. On paper at least, all 125 parties to the Rome Statute are supposed to execute warrants issued by the ICC (including those issued against heads of state) and cooperate fully with ICC investigations. Geopolitical reality has meant that this is far from the case in practice. 

Chief prosecutor of the International Criminal Court Karim Khan has faced sanctions by the United States. Image credit: ICC

While many Western governments were quick to join in a united chorus of support upon news of Putin’s indictment, most were by far more reserved when Netanyahu was similarly charged with war crimes and crimes against humanity. The US under the Trump administration has gone a step further by slapping sanctions on ICC officials in 2020 and again in 2025, seriously undermining efforts to hold all accountable in accordance with international law. 

Meanwhile, the lack of an enforcement mechanism may mean that some arrest warrants will never be executed in the foreseeable future. Sudan’s former dictator Al-Bashir has freely visited multiple nations despite having an ICC arrest warrant issued against him in 2009 (notably Jordan came up with the excuse that heads of state had immunity from arrest using its own interpretation of article 98 that was later debunked by the ICC). During the latter’s 2024 visit, Mongolia outright refused to arrest Putin.

That being said, Duterte’s arrest sends a strong message to those with outstanding arrest warrants that legal troubles don’t magically disappear the moment they leave office and changing political winds can easily ensnare them once more. Ultimately, the ICC serves a normative purpose – building a justice system where international intervention is no longer necessary. 

Lately, ICC rulings have also revealed its little-known (but nevertheless critical) role in potentially reshaping power balances during diplomatic negotiations. For instance, Putin was forced to attend the 2023 BRICS summit in South Africa virtually while Netanyahu presently faces restrictions on visiting multiple European nations who would be obliged to execute his arrest warrant. 

Interestingly, France has appeared to walk back on its stance and offered Netanyahu immunity from arrest should he choose to visit France in exchange for political concessions in Lebanon ceasefire negotiations. 

When faced with the choice of pursuing domestic political agendas versus meeting obligations under international law, many states would naturally gravitate towards the former. Does international law truly only apply to the weak then? 

ICC and Realpolitik

When the Philippines left the Rome Statute in 2019 together with its Southeast Asian counterparts, some remarked how the decision marked a stark rejection of neo-colonialism. The claim that the ICC practices Western exceptionalism, which is the belief that the West holds superiority, especially over issues relating to economics, human rights and politics is not unfounded. 

Out of the 54 individuals who the ICC has prosecuted up to date, 47 are African. This is further evidenced by its decision to have rejected investigating onerous crimes due to termed “viability and budgetary constraints” affecting the court. 

Some notable instances include the decision to not investigate war crimes by the United Kingdom’s forces in Iraq in 2020. This was despite the prosecutor’s investigations emphasising that the cited crimes were committed. 

Beyond the present, the ICC’s selectivity has been argued to be elucidated through the pardoning of George W. and George H. W. Bush’s militaristic offensives. Although they had indirectly killed hundreds of thousands in Afghanistan, they were never investigated. 

Even when the Biden administration was called into question for the Taliban-Afghanistan invasion, their investigation was “de-prioritised” in 2021. Therefore, this challenges the unbiasedness of the ICC, considering how countries with less geopolitical clout become more legally “available” to ICC processes. 

An issue in a similar vein is related to countries who choose to opt out of the Rome Statute, and are able to do so without political backlash. These influential countries sustain sufficient political prowess to continue being non-signatories. 

Ultimately, the decisions that they are able to make highlights the inherent power imbalances, even in a supposedly impartial body like the ICC. Hence, both issues embolden the argument that the ICC also has its ingrained flaws, rendering Duterte’s own arrest one which disadvantages the “weak” unproportionately. 

In the clearest sign yet that politics has overshadowed Duterte's arrest, he won re-election by a landslide in the recently concluded mayor elections held in his hometown of Davao City (while remaining in a cell some 11000km away). Far from spelling the end of the Duterte family fortunes, the 80-year-old's arrest has sparked a resurgence of popular support across the southern Philippines, boosting the chances of VP Sara Duterte surviving her impending impeachment vote.

Having been routinely accused of neocolonialist undercurrents throughout its past decade of mostly targeting African leaders, the international court is expected to be met with growing scepticism across Southeast Asia, where most nations are members of the regional bloc ASEAN. Notably, noninterference (in each state's domestic affairs) has been a cardinal principle since ASEAN's founding in 1967. Perhaps unsurprisingly then, only Cambodia and Timor-Leste are parties to the Rome Statute. The politicisation of Duterte's arrest will only reinforce the perception that international criminal justice simply has no place in this corner of the world. A pyrrhic victory for the ICC?

References

1. Abasola, L. (2023, February 21). Estrada: ICC interference violation of PH sovereignty. Pna.gov.ph; Philippine News Agency. https://www.pna.gov.ph/articles/1195699

2. Amnesty International. (2019, July 8). UN investigation urgently needed into the Philippines’ “war on drugs.” Amnesty International. https://www.amnesty.org/en/latest/press-release/2019/07/philippines-un-investigation-urgently-needed-duterte-war-drugs/

3. Amnesty International. (2025, March 25). What do the Trump administration’s sanctions on the ICC mean for justice and human rights? Amnesty International. https://www.amnesty.org/en/latest/campaigns/2025/03/what-do-the-trump-administrations-sanctions-on-the-icc-mean-for-justice-and-human-rights/

4. Calimbahin, C. A. (2025, March 21). Polarized Opinion: The Arrest of Duterte. Carnegie Endowment for International Peace. https://carnegieendowment.org/posts/2025/03/polarized-opinion-the-arrest-of-duterte?lang=en

5. de Guzman, C. (2023, November 27). What to Know About the ICC Probe Into the Philippines’ Drug War. TIME. https://time.com/6339873/rodrigo-duterte-drug-war-international-criminal-court-investigation/

6. Domino, J. (2018, March 8). Can the Philippines overcome the principle of complementarity? Cilj.co.uk; Cambridge International law Journal. https://cilj.co.uk/2018/03/08/can-the-philippines-overcome-the-principle-of-complementarity/

7. Hendrickse, M. (2024, April 22). A chance for Africa to counter the pitfalls of international criminal justice? Amnesty International. https://www.amnesty.org/en/latest/news/2024/04/a-chance-for-africa-to-counter-the-pitfalls-of-international-criminal-justice/

8. Holligan, A. (2025, March 13). Philippines Duterte’s first night in a jail cell is a pivotal moment for the ICC. BBC. https://www.bbc.com/news/articles/cvgw1nklxezo

9. Human Rights Watch. (2020, June 11). US Sets Sanctions Against International Criminal Court. Human Rights Watch. https://www.hrw.org/news/2020/06/11/us-sets-sanctions-against-international-criminal-court

10. Human Rights Watch. (2023, February 13). International Criminal Court’s Philippines Investigation. Human Rights Watch. https://www.hrw.org/news/2023/02/13/international-criminal-courts-philippines-investigation

11. International Criminal Court. (2021, June 14). Chronology of Relevant Events. https://www.icc-cpi.int/sites/default/files/RelatedRecords/0902ebd18039c14b.pdf

12. International Criminal Court. (2025a). About the Court. International Criminal Court. https://www.icc-cpi.int/about/the-court

13. International Criminal Court. (2025b, February 10). Public redacted version of “Prosecution’s urgent application under article 58 for a warrant of arrest against Rodrigo Roa DUTERTE.” https://www.icc-cpi.int/sites/default/files/CourtRecords/0902ebd180af4f78.pdf

14. Lamb, K. (2017, April 2). Thousands dead: the Philippine president, the death squad allegations and a brutal drugs war. The Guardian. https://www.theguardian.com/world/2017/apr/02/philippines-president-duterte-drugs-war-death-squads

15. Lema, K. (2024, November 13). Philippines says obliged to comply if Interpol seeks ex-president Duterte’s arrest. Reuters. https://www.reuters.com/world/asia-pacific/ex-philippine-president-duterte-says-icc-should-hurry-up-drug-war-investigation-2024-11-13/

16. Lema, K., & Morales, N. J. (2018, March 14). Duterte to withdraw Philippines from ICC after “outrageous attacks.” Reuters. https://www.reuters.com/article/world/duterte-to-withdraw-philippines-from-icc-after-outrageous-attacks-idUSKCN1GQ0M8/

17. Magramo, K. (2025, May 17). Duterte scores landslide win in local elections. But can he be mayor from The Hague? CNN. https://edition.cnn.com/2025/05/17/asia/philippines-duterte-mayor-icc-hurdles-intl-hnk-dst

18. McBrien, T. (2024, December 10). France’s Convoluted and Contradictory ICC Immunity Position. Lawfare. https://www.lawfaremedia.org/article/france-s-convoluted-and-contradictory-icc-immunity-position

19. Morada, N. (2025, May 8). As Filipinos prepare to vote, ex-strongman Rodrigo Duterte’s arrest is dividing families – all the way to the president. The Conversation. https://theconversation.com/as-filipinos-prepare-to-vote-ex-strongman-rodrigo-dutertes-arrest-is-dividing-families-all-the-way-to-the-president-255600

20. Morales, N., & Flores, M. (2024, January 23). Philippines will not “lift a finger” to assist ICC’s drug war probe. Reuters. https://www.reuters.com/world/asia-pacific/philippines-will-not-cooperate-with-icc-probe-into-drugs-war-president-2024-01-23/

21. Murcia, A., Kabagani, L. J., & Ramones, V. B. (2025, March 17). “ICC lacks jurisdiction”: Osg recuses itself from SC case. Daily Tribune. https://tribune.net.ph/2025/03/17/icc-lacks-jurisdiction-osg-recuses-itself-from-sc-case

22. Ratcliffe, R. (2024, January 29). Duterte calls Philippine president “a drug addict” as rift deepens. The Guardian. https://www.theguardian.com/world/2024/jan/29/rodrigo-duterte-calls-philippine-president-drug-addict-rift-deepens-ferdinand-marcos-jr

23. Root, R. (2025, April 24). Rule of law: ICC sends message with arrest of former Filipino president Duterte. Ibanet.org; International Bar Association. https://www.ibanet.org/Rule-of-law-ICC-sends-message-with-arrest-of-former-Filipino-president-Duterte

24. Schuldt, L. (2025, March 26). The Price of Getting Duterte. Verfassungsblog. https://verfassungsblog.de/icc-duterte-philippines/

25. Smith, T. (2025, March 13). The ICC has got Duterte, what will the Philippines get? JusticeInfo.net. https://www.justiceinfo.net/en/142703-the-icc-has-got-duterte-what-will-the-philippines-get.html

26. Southey, S. K. (2025, April 17). Duterte, Netanyahu, and Putin: The ICC’s Power Play. Opinio Juris. https://opiniojuris.org/2025/04/17/duterte-netanyahu-and-putin-the-iccs-power-play/

27. The White House. (2025, February 6). Imposing Sanctions on the International Criminal Court. The White House. https://www.whitehouse.gov/presidential-actions/2025/02/imposing-sanctions-on-the-international-criminal-court/

28. Valera, A. A. (2025, March 20). Why Duterte’s ICC arrest is illegal under both PH and international law. INQUIRER.net USA; INQUIRER.net. https://usa.inquirer.net/168579/why-dutertes-icc-arrest-is-flawed-under-both-ph-and-international-law

29. Wee, S.-L. (2025, March 12). Why Rodrigo Duterte Was Arrested Now. The New York Times. https://www.nytimes.com/2025/03/12/world/asia/philippines-duterte-arrest-marcos.html