Arrest of Rodrigo Duterte for “War on Drugs” in the Philippines

When the news broke that the former Philippines President Rodrigo Duterte had been arrested and detained upon arrival at Manila’s airport from an overseas trip, by Philippine police executing an international arrest warrant, it was the culmination of months of speculation. The political feud and infighting in the Philippines halls of power certainly facilitated this moment. But let us not forget, it’s been the relentless work of lawyers, human rights defenders and civil society activists in the Philippines who have challenged Duterte’s ‘war on drugs’, who have provided information, evidence and testimony to the International Criminal Court at great danger to themselves, and who have laid the path to this moment.

This moment comes nearly a decade after Duterte unleashed t he brutal ‘war on drugs’ in the Philippines, upon becoming President in 2016. I still remember the time vividly, being based in Manila during those years, and seeing first-hand the terror unleashed on the populace. His chilling words to drug users- “I’ll dump all of you into Manila Bay, and fatten all the fish there” – a sign of things to come during his administration.  

Recall, at the time, the Philippines was a state party to the International Criminal Court, one of the few from Asia-Pacific to have signed it in 2000, with ratification of the Rome Statute in 2011. The Philippines has been an active participant in the drafting of the Rome Statute. And in fact, the Philippines also had a fairly robust legislation (Republic Act No. 9851 of 2009) addressing international crimes, even before the ratification of the Rome Statute.

After the commencement of the extra judicial killings that would epitomize the terror unleashed by the war on drugs, and the announcement of a preliminary examination into the situation by the Office of the Prosecutor (OTP) of the International Criminal Court in February 2018, the Philippines announced its withdrawal from the Rome Statute in March 2018. This withdrawal would take effect a year later in 2019, and went ahead despite arguments challenging the withdrawal at the Philippine Supreme Court in late 2018. (For more on the hearings before the Supreme Court, see my posts here and here)

Currently, the OTP is investigating crimes associated with the war on drugs campaign, from the time period that the Philippines became a state party, till its withdrawal taking effect, i.e.1 November 2011 and 16 March 2019. In September 2021, a pre-trial chamber granted the request of the Prosecutor to open an investigation into the Philippines situation, by virtue of Article 15(3) or the ability to proprio motu open an investigation based on a ‘reasonable basis’ to proceed. The pre-trial chamber received 204 victims representations, and approved the request by the Prosecutor to move forward, and to consider all crimes within the jurisdiction of the court, associated with the ‘war on drugs’ campaign. It is on this basis that the current arrest warrant has been executed (though, to be clear, this warrant has not been made public yet, and the Presidents spokesperson – and a former human rights lawyer –  Harry Roque, indicated challenges to his arrest, including that the court has no jurisdiction due to the Philippines withdrawal).   

If Rodrigo Duterte is transferred to custody of the International Criminal Court in the Hague, this will be an important test case, and one of many firsts – the first of a former head of state, and from Asia. This comes at a time when there are arrest warrants by the ICC for current heads of state – Minh Aung Hlaing (Myanmar), Putin (Russia), Netanyahu (Israel) and Al Bashir (Sudan, warrants issued at the time when he was head of state) – and will be a testing ground for questions around immunities. This is also the first instance of a state that has withdrawn from the Rome Statute consenting to jurisdiction by allowing the presence of ICC officials, as well as overturning its position and enabling an arrest. A lesson that when there are winds of political change, preparation and laying the groundwork towards accountability are key.