ICC spox: Judges to decide if Duterte's surrender is unlawful

MANILA, Philippines — While former President Rodrigo Duterte's camp questions the legality of his arrest by the International Criminal Court (ICC), the tribunal’s spokesperson said only its judges can rule on the matter.

ICC spokesperson Fadi El Abdallah said that any challenge to the legality of Duterte’s surrender must be submitted to the judges for a decision.

Duterte was arrested by Philippine authorities on March 11 following a diffusion notice from the International Criminal Police Organization (Interpol), which alerted the country about the ICC arrest warrant for crimes against humanity charges.

Twelve hours later, the government flew him to The Hague, Netherlands, where he was transferred to ICC custody. 

“Now, the surrender of Mr. Duterte to the ICC is something that was, of course, the decision of the Philippines' authorities, and if there is any question about whether it was lawful or not, it would have to be submitted to the judges,” he said in an interview with One News’ "The Big Story" on Wednesday, April 2. 

Several petitions were filed before the Supreme Court by Duterte’s children, seeking the following:

• The immediate suspension of any cooperation with the ICC.
• A review of Duterte’s detention, arguing that the ICC has no jurisdiction over him.
• A declaration on the legality of the Philippine government’s cooperation with the ICC.

RELATED: LIST: Petitions filed to halt ICC arrest of Duterte, gov’t cooperation

El Abdallah added that regardless of whether a nation is a state party to the Rome Statute — the treaty that established the ICC — it can still choose to cooperate with the court voluntarily.

“Of course, even states that are not parties to the ICC Rome Statute, they can cooperate with the ICC on a voluntary basis,” he said. 

He also noted the ICC's appreciation for the Philippines' commitment to international accountability mechanisms, stressing their importance in ensuring justice.

“We believe that truth has to be revealed, and there is a process for that which is, in our instance, the international level process before the International Criminal Court,” El Abdallah said. 

While Duterte is detained, the spokesperson also underscored that the former president is presumed innocent. He is also not considered a prisoner, which has different rules from those under detention.

Granting an interim release

Nicholas Kaufman, legal counsel for Duterte, announced plans to seek not only his client's interim release but also to challenge the ICC’s jurisdiction over his case.

Under Article 59 of the Rome Statute, an arrested individual has the right to apply for interim release. However, the decision rests with the Pre-Trial Chamber, which will determine whether to grant it.

If approved, it would mean the judges found “urgent and exceptional circumstances” justifying the release and that sufficient safeguards are in place to ensure the custodial state, which holds the person in detention, can still fulfill its obligation to surrender Duterte to the court.

The Statute includes a caveat stating that when considering interim release, the custodial state cannot question the validity of the arrest warrant. According to Article 58, the warrant is considered properly issued if there are reasonable grounds to believe a core crime was committed and the person’s arrest is necessary.

“And whether this type of measures can be accepted by a state that would accept the temporary release of a suspect. So there is a set of elements that may be discussed before the judges. And it's only for the judges to decide on,” El Abdallah said.  

Arrest warrant, jurisdiction

He also explained the possible reasons ICC judges may deem a suspect’s arrest necessary.

One reason, he said, is if the individual appears unwilling to voluntarily cooperate with the ICC — something Duterte repeatedly asserted during his presidency. However, he later contradicted himself by suggesting the court should investigate him.

Another reason is if the person has the ability to evade the court, interfere with the investigation, endanger victims or continue committing the alleged crimes. These grounds are all stated under Article 58 of the Statute.

El Abdallah also reiterated the clear jurisprudence outlining the ICC’s jurisdiction over Duterte’s case.

Although the Philippines withdrew its membership, he said the period when it was still a state party to the Rome Statute remains under the tribunal’s jurisdiction, as stated in Article 127. This period was from November 1, 2011, to March 16, 2019.

'Not a matter of numbers' 

Duterte faces charges for the murder of at least 43 people during his time as mayor of Davao City and throughout his drug war when he was president. It is the prosecution’s burden to prove these allegations.

The 43 victims are only a “sample” of the thousands of extrajudicial killings. Additional evidence may be presented, potentially covering more cases than originally listed in the warrant, El Abdallah said. 

“It doesn’t mean that these are the only incidents that may be included in the charge,” the ICC spokesperson said in an interview with ABS-CBN News.

El Abdallah, and other international law experts, have mentioned that proving crimes against humanity primarily relies on establishing that a widespread and systematic attack had occurred — and not the numbers. 

“It's not a matter of numbers. The nature of the attack, whether it's widespread or systematic, is an important element to qualify an illegal conduct as a crime against humanity,” he said. 

RELATED: In Duterte’s case, it's about proving 'widespread, systematic' attack — ICC lawyer

Both the prosecution and defense are currently preparing for the hearing by exchanging evidence and witnesses that will be presented. The prosecution has already disclosed 181 pieces of evidence. 

Duterte’s confirmation of charges hearing is scheduled for September 23, where it will be decided whether he will proceed to trial.