I’ve been taking the time to digest various legal issues about former President Duterte’s arrest.
I’m not an international law expert. Once in a while, I just coach Jessup, the world’s largest and oldest moot court competition on public international law; I was also a part of the International Legal Framework Committee, and the Criminal Policy & Criminal Investigation Committee for the proposed Esperanza Protocol aimed to address threats faced by human rights defenders.
My big takeaway here is this: Duterte lost his remedy under Article 59 because during his term as president, the Philippines withdrew from the Rome Statute on 17 March 2019, the treaty that established the International Criminal Court (ICC).
What remedy did he lose under Article 59?
Many.
Including the right to apply to our courts for interim release pending surrender.
And the right to be brought before our courts so that our court can determine whether the warrant applies to him, and whether the arrest was in accordance with the proper process.
Basic concept in international and domestic law: The applicable law as regards arrest itself is the law that is effective at the time of such arrest.
In this case, Republic Act 9851 (or the Philippine Act on Crimes against International Humanitarian Law, Genocide, and other Crimes against Humanity).
This law was passed before the Philippines became a party to the Rome Statute.
Republic Act 9851: 11 December 2009
Rome Statute: 30 August 2011
Republic Act 9851 allows Philippine authorities to surrender a person accused of a crime against humanity to an international tribunal already investigating a case. The ICC is doing this now.
The Philippine authorities dispensed with the investigation or prosecution of Duterte because this is allowed by our own law.
And it’s wrong to say that since our own law now applies, Philippine courts should then issue the warrant of arrest.
We are bound by many international agreements that compel us to execute warrants issued by other bodies. That is why the ICC warrant can be used to arrest Duterte.
There is room to argue that Duterte can now challenge the validity of the arrest itself, either before the ICC, or before Philippine courts. There’s a lot of debate about the latter. I do think it’s an alternative remedy.
If we did not withdraw from the Rome Statute, Duterte could have gone to our courts to challenge the ICC warrant and the validity of his arrest.
Duterte and his team of legal experts took a gamble when they withdrew from the Rome Statute — perhaps thinking they can change the pattern of international law jurisprudence that says: When it comes to jurisdiction, the law when the offenses were committed applies.
This basic principle is the reason why the ICC still assumed jurisdiction over Duterte’s case because the alleged offenses were committed prior to our withdrawal from the Rome Statute.
What they may have missed was to remember that this principle changes when we talk about the arrest. The law to be applied will be the law in force at the time of arrest. In this case, RA 9851.
If he is allowed to still invoke the Rome Statute, will he then drop his argument that the ICC no longer has jurisdiction over him because the Philippines withdrew from the Rome Statute? Kasi hindi pwedeng siya lang tama palagi, di ba? Consistency is key.
What happened here?
Duterte’s own decision backfired.
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Author’s email: goldabenjamin@gmail.com
