Silliman University

Graduate Studies
School of Public Affairs and Governance

Conflict in Jurisdiction: Duterte’s Drug War & the International Criminal Court (ICC)

Lj Zaphan Butiong Lamboloto, M.A.

Student, Ph.D. Social Science III

Introduction
This work aims to briefly discuss key perspectives on whether the International Criminal
Court has a jurisdiction over Duterte and grant a warrant of arrest for his “crime against humanity”
given the country’s withdrawal from the Rome Statute in 2018 during the Duterte administration.
As can be known, there is a growing polarity in public opinion concerning the validity of the ICC’s
investigation of Duterte’s drug war and much more, the warrant of arrest that has been rumored to
be released in June or July of 2024. The ultimate question would clearly be the authority of the
International Criminal Court to make an arrest despite the working justice system of the Philippine
Government. This is, in fact, the position of the incumbent President Ferdinand “Bong-bong”
Marcos Jr. Despite recent political bickering with the former President Duterte, the Marcos
administration remain resolute in its take that the ICC does not have the jurisdiction to make an
arrest as the country has a working “judicial system and law enforcement mechanisms”.
(Mangaluz, 2024) Yet, this statement was published in mid-February of 2024. With certainty, there
has been developments with the stance of the current administration. On a recent interview with
the Department of Justice spokesperson, the shift in tone concerning the ICC interference in the
country was made apparent. From a categorical statement of not letting the ICC interfere with a
working legal system, the Marcos administration is currently considering the pros and cons of a
re-entry to the Rome Statute. (Bautista, 2024) An outside observer, at this critical point, would
question the seeming sudden changes in political atmosphere as a subtle threat to Duterte’s
campaign against the proposed economic revisions of the 1987 Constitution.
Given the political rift between the Dutertes and the Marcoses in the past months, the
consideration of an ICC re-entry could be seen as a political vendetta devised conveniently through
a proxy. This is precisely why the attack on both sides are coming from different fronts. On
Duterte’s camp, BBM is accused of expanding his hold to power through the Charter Change, a
claim that the Marcos camp denies as the cha-cha only aims to revise and liberalize the economic
provisions of the 1987 Constitution. On Marcos’ camp, the potential re-entry of the ICC which
would allow it to arrest the former President Duterte could be seen as an attempt silence the Duterte
camp which, in turn, could alienate the administration from the other half of Uniteam supporters.
Though the recent discourse concerning this political rift is a potent jumping board for this study,
it will not cover the turning points of this unfolding political narrative. This work would simply
investigate the question of whether the ICC has a jurisdiction over Duterte’s human rights
violations. If not, what would be legal options of the current administration? In order to explore
these points, this work would be guided by the following questions: 1) What are findings of the
ICC’s investigation? 2) What are the conditions for the ICC to have a jurisdiction? 3) Should the
Marcos’ administration re-enter the Rome State and what would be the consequences of such
paradigm shift?
Methodology
This study will utilize descriptive-analytic method in exploring key social and political issues in
the question of ICC jurisdiction in the Philippines and the government’s possible re-entry to the
Rome Statute. In order to do this, this study will examine statements and positions from the
principal stakeholders, i.e., Marcos’s administration, Duterte’s camp, the ICC and other relevant
literature concerning the authority of the Rome Statute to interfere on the matters of international
crimes or crimes against humanity.
Results and Discussion
A. International Criminal Court Investigation
On a report released in the 14th of June 2021, the Office of the Prosecutor, Ms. Fatou
Bensouda and Mr. James Steward provided a comprehensive review of the WoD or War on Drugs
implemented by the Philippine President Rodrigo Duterte. Being a member state of the ICC since
November 11, the court has the prerogative to execute a probe to the reports of human rights abuses
perpetrated by the Duterte administration. The argument of the prosecution to justify the
investigation was that there were indeed grounds for the ICC to interfere given the systematic
participation of the Duterte administration to extrajudicial killings. The number of civilian victims
that are related to the ‘Oplan Tokhang’ between 2016 to March 2019 ranges from 12,000 to 30,000.
(Kovacs, et al., 2021) As can be known, the presidential campaign of Rodrigo Duterte who was
then a Mayor of Davao City emphasizes the need to eliminate the drug menace. Though the actual
numbers of drug users in the Philippines only amount to 1.8 million Filipinos, the numbers seem
to have been inflated to four million – a narrative that sets an alarm to the general public which
Duterte picked up when he promised to eradicate it within six months. Illegal drugs being one of
the pathologies that haunts Philippine society, Duterte’s campaign for the presidency was backed
by an astonishing number of voters in the 2016 presidential elections. Though the alleged numbers
of extrajudicial killings started in 2016, the violent and brutal approach of Duterte towards illegal
drugs in Davao City as the mayor has already killed at least a 1,000 people – a model that he
envisions to upscale nationwide.
Bensouda’s report, moreover, delves on the role of the police in the alleged killings of both
illegal drugs users and pushers. The primarily claim is that the killings are all justified as the
personalities who are tied to the drug trade during the encounter either retaliated which puts the
lives of the law enforcer at risk which warrants an expeditious response – one fatal shot or ran
away from authorities instead of surrendering. Though the anti-illegal drug war made an initial
impression that it also intends to rehabilitate the users or pushers who surrendered to the ‘Oplan
Tokhang’, the rehabilitation lacked the full autonomy of individuals. (Lasco, 2022) Intuitively, to
undergo rehabilitation necessitates a degree of voluntariness from the user which makes the
process authentic and not simply an alternative from death. An investigative inquiry by Health and
Human Rights Journal asserts that the ‘rehab’ option for the drug dependents is the safest
alternative from being killed by the police. This shows that though the drug war provides a choice
of salvation to drug dependents, it is devoid of personal voluntary submission. The report further
shows in detail various instances of police abuse and the disproportionate measures during the
operations. While not all killings are perpetrated by the Philippine police, there are evidences that
points to the involvement of the administration to hiring vigilantes from within the law
enforcement to take down ‘hardened criminals’ and drug pushers.
Another point that Bensouda mentioned would be the affirmation of these claims founded
on Duterte’s public statements. Though public utterances are often politically-driven given the
strategy of Duterte to utilize crass rhetoric to elicit a message of threat, in this case, against drug
pushers, he could still be blamed for the punitive direction of the anti-drug campaign. For one,
Duterte ensures the police that they can ‘shoot to kill’ those who are resisting arrest. There are also
threats that those who will be caught will be used as ‘fatteners’ to the fish of Manila Bay. As the
report recounts, Duterte warns the drug dependents who surrendered “If you are still into drugs, I
will kill you, don’t take this as a joke. I’m not trying to make you laugh, son of a bitch, I will really
kill you”. (p.46) In turn, the attitude towards drug dependents from the vantage point of the
administration and its agents, elicits a message that the drug users and pushers are no longer
human. As the former Justice Secretary Vitaliano Aguirre II claims, “the criminals, the drug lords,
drug pushers, they are not humanity”. (p.47)

B. ICC’s Jurisdiction: To what extent?

Now, the ultimate question that this paper highlights would concern the jurisdiction of the
International Criminal Court given the withdrawal of the Philippines from it in 2018. As can be
known, the Philippines has been a member of the ICC since 2011 to March 2019. (Kovacs, et al.,
2021, p. 4) In this manner, pertaining to the beginning of the investigation in 2021 as it was
approved by the ICC pre-trial chamber, the ICC retains its jurisdiction as the crimes being
investigated were perpetrated within the timetable that the Philippines were, in effect, still a
member state of the ICC. In this manner, whether the Philippine government cooperates with the
ICC on matters of the investigation is interpretively irrelevant. In Alison Smeallie’s work
“Punishing the Punisher: The Role of the International Criminal Court in Ending Duterte’s “War
on Drugs”, the question of jurisdiction has been engaged extensively. Categorically, the power of
the ICC among the member states regarding investigations and prosecutions are binding. Yet, of
course, the main function of the ICC is to exercise jurisdiction on cases that could be considered
as heinous or most serious of crimes. (Smeallie, 2019) This means that they could intervene in
complementarity with the national criminal jurisdiction – not to replace but to ‘complement’. In
this manner, the question of jurisdiction, in reality, does not only involve the dispute of Duterte
administration’s withdrawal from the ICC, but other critical matters, i.e., “1) subject matter of the
jurisdiction, 2) jurisdiction over the situation through the nationality of the defendant or the
territory in which the alleged crimes occurred unless the situation is referred by the U.N. Security
Council, and 3) the jurisdiction in time.” Smeallie further reiterates, “the court must have
jurisdiction over the crime itself, over either the location of the crime or the nationality of the
perpetrator (but both are not necessary) and over the period of time in which the crime was
committed.” (Smeallie, 2018, p.180). It is clear from this vantage point that the claim of the Duterte
camp that the ICC’s interference against Philippine sovereignty is inaccurate given that the crimes
being investigated fall within the timeline of Philippine state membership in the ICC. (Conde,
2021) The Pre-Trial Chamber notes in verbatim:
2. A State shall not be discharged, by reason of its withdrawal, from the obligations
arising from this Statute while it was a Party to the Statute, including any financial
obligations which may have accrued. Its withdrawal shall not affect any
cooperation with the Court in connection with criminal investigations and
proceedings in relation to which the withdrawing State had a duty to cooperate and
which were commenced prior to the date on which the withdrawal became
effective, nor shall it prejudice in any way the continued consideration of any matter
which was already under the consideration by the Court prior to the date on which
the withdrawal became effective.
This is further affirmed by the ruling:
111. While the Philippines’ withdrawal from the Statute took effect on 17 March
2019, the Court retains jurisdiction with respect to alleged crimes that occurred on
the territory of the Philippines while it was a State Party, from 1 November 2011
up to and including 16 March 2019. This is inline with the law of treaties, which
provides that withdrawal from a treaty does not affect any right, obligation, or legal
situation created through the execution of the treaty prior to its termination.
Moreover, in the Burundi situation, Pre-Trial Chamber III held that a State Party’s
withdrawal from the Rome Statute does not affect the Court’s exercise of
jurisdiction over crimes committed prior to the effective date of the withdrawal.
(Pangalangan, 2023)
In this manner, considering these legal statements from the ICC, the Philippine
government, by the virtue of its consent to state membership to the Court, are obliged to cooperate
with the prosecution. The claim, however, of the incumbent government is that the Philippine
judicial system is working and are prosecuting personalities that are involved in the drug war. The
problem, however, is that the ones being tried for human rights abuses are those who could be
considered as foot soldiers – the law enforcement that are deemed immediately responsible for the
deaths of innocent victims. In turn, there has been no case filed against Duterte or other key players
in WoD. This is potentially where the “admissibility” criteria come into play.
As the Rome Statute lays out the criteria for admissibility in Court – first is
complementarity and second gravity. In the case of complementarity, it is clear that the ICC has
the prerogative to proceed with the investigation given the fact that the incumbent administration
fails to prosecute the masterminds of the WoD – whether the reason is political, that is, the
perpetrators hold significant positions in the government, the Marcos administration turns a blind-
eye to the gravity of the accusations against Duterte. Arguably, the reason behind the Marcos
administration’s inaction could be the incumbency of Vice President Sara Duterte – the former
President’s daughter. The second criteria are the gravity of the crime. As can be known, the crime
falls within the jurisdiction of the ICC given that the WoD is an institutionalized execution and the
‘systematic’ method of violent apprehension of drug dependents which has killed, as mentioned
earlier, around 15,000 to 30,000 people.
As discussed above, it is clear that the question of jurisdiction is satisfied. To summarize,
the temporal and territorial requirements are satisfied, as well as the subject matter, that is, the
crime perpetrated, and the admissibility of the case satisfies the requirements of the Court prior to
any investigation. In this manner, whether the Philippine government cooperates or not, the ICC
probe may continue its activities in the country and within legal jurisprudence, exercise its power
to summon the former president to trial in the ICC. Though the procedure might and would take a
significant time before the execution of an arrest and/or a final adjudication, the point being is that
the ICC has jurisdiction over the Duterte’s WoD.

Conclusion. Marcos Admin in a Limbo: Consequences of Re-Entry

As discussed above, the ICC could very well conduct the investigation without the
permission of the Philippine government. Whether the Marcos administration recognizes the
jurisdiction of the ICC in the country or not is irrelevant – though it would necessarily speed up
the process of inquiry and the possibility of a trial. It is also critical to note that though the ruling
of the ICC is binding, since it has no police of itself, it still needs the member state to cooperate to
execute the decision (in the event of a release of a warrant of arrest) If the Philippine police will
not cooperate for political reasons, then, the International Police (InterPol) could intervene – only
once the Red Notice has been issued, yet this remains contingent to the interpretation of the
member state. This means that the Philippine government, still, may opt to not cooperate.
(CEDTyClea, 2024) This is the pre-text of the recent rumors concerning the possibility of the
Marcos administrations’ re-entry to ICC. As mentioned earlier, the Department of Justice is
preparing a brief that would show the options of the Chief Executive in the event that a warrant
will be issued by the ICC.
Now, the metanarrative above all the ICC jurisdiction dispute would be the issue
concerning the re-alignment of the Philippine foreign policy regarding the maritime dispute with
the Chinese. It is clear that the Marcos administration contra Duterte administration’s stance with
the United States, is dependent on American protection. Given the establishment of the five EDCA
sites in the Philippines, the position of the Philippine government apparently favors a western-lead
coalition against the Chinese expansionism. In this way, the Marcos administration, as it appears,
is torn between two lovers. On the one hand, BBM is careful with Duterte’s WoD issues as any
sudden and radical change in tone (regarding his stance on ICC jurisdiction) may disfigure the
already disintegrating unity in his administration. Arguably, any shifts in tone, could in fact,
alienate his administration from its other half. On the other hand, the Marcos administration also
aims to secure a strong connection to the west in order to protect the Philippine maritime territory
from the Chinese. It is for this reason why the cooperation of the Marcos administration to the ICC
remains a gray area that if made perfectly clear could turn his boat on one end against the other.
Though this analysis might appear too far-fetched and in fact, detours from the question of
jurisdiction, the political realities are not entirely curtailed from such issues. At this point, one
could argue that the incumbent administration stands on cross-roads – to cooperate with the ICC
and restore an image in the international community of the country’s return to democracy (given
his inherited legacy as a Marcos and a friend to the Dutertes) or totally reject the ICC ruling and
coddle the Duterte camp that has thus far attempted to destabilize his government through rumors
of a military coup and a growing antagonism to the cha-cha and the People’s Initiative.
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