AS former President Rodrigo Duterte appeared for the first time before the International Criminal Court (ICC) in the Netherlands on Friday, Manila Standard sought the opinion of legal luminaries in the Philippines to clarify common misconceptions about the arrest of the former leader amid contrasting interpretations of local and international laws.
Here are the frequently-asked questions (FAQs) and their answers from a purely scholarly perspective to guide the public in understanding the ongoing case:
Q: Does the ICC have jurisdiction in the country where there is a working judicial system?
Lawyer Arnaldo Espinas, who teaches Private International Law (PIL), said that each state has its own legal system encompassing civil and political rights as well as the criminal justice system. Talking about jurisdiction, if the Philippines, by having entered into a treaty such as the Rome statute, submits to the jurisdiction of that court in cases involving crimes against humanity or such other crimes denominated as contra bonus mores, he said.
On the other hand, litigation lawyer Ernesto Tabujara III said the ICC under the Rome Statute may assume jurisdiction if there is already recourse to local courts which are functioning, but cannot be addressed properly or failed to take action.
For his part, lawyer Ismael Sarangaya who also teaches PIL in several law schools, explained that this matter has two concerns including unwillingness and genuine inability to investigate and prosecute. In this case, there was already a prior determination by the ICC.
Q: Can the former president claim immunity from suit for his defense in this case?
Immunity from suit only pertains to local laws and only to the specific time when a President is in office, Tabujara said.
Law dean and author Ralph Sarmiento is of the opinion that "while Duterte is no longer immune from suit as a former President, he retains the right to challenge actions that infringe on his constitutional rights.”
Sarmiento shared that the SC has consistently upheld the protection of individual liberties, even in cases involving international obligations. In the case of Bayan Muna vs. Romulo, the Court emphasized that executive actions must comply with domestic laws and constitutional safeguards.
Article 27 of the Rome Statute provides that official status, including head of state or former head of state, does not grant immunity before the ICC.
Q: Is it possible for the Supreme Court (SC) to intervene in the ongoing case?
Sarangaya, also an associate dean of law school, recognizes that the decisions of the SC are binding only within the territory of the Philippines. The ICC, being an international tribunal, may assert the superiority of international law over domestic law. Meanwhile, he noted that the SC may still have several considerations such as the issues raised before becoming moot and academic, or the exceptions in the mootness doctrine.
Sarmiento explained that a case is considered moot and academic when the relief sought can no longer be granted, or any judicial action on the issue would have no practical effect. He added that if Duterte has already surrendered and is in ICC custody, the SC’s intervention to halt his transfer would serve no legal purpose."
Given the unprecedented nature of Duterte’s case and its implications on Philippine sovereignty, treaty obligations, and executive powers, the SC may still rule on the petition despite mootness, particularly to clarify the government’s authority to cooperate with the ICC post-withdrawal, Sarmiento added.
Q: Was there a temporary restraining order (TRO) issued by the SC?
SC spokesperson Camille Ting, in an earlier statement, noted that after a virtual deliberation on the 94-page petition, the SC, by majority vote, found that the petitioners failed to establish a clear and unmistakable right for the immediate issuance of a TRO.”
Q: Does the withdrawal of the Philippines from the ICC affect jurisdiction over the Duterte case?
Sarangaya opined that prior to the effectivity of the withdrawal in 2019, the ICC retains jurisdiction over the proceedings that earlier commenced. He cited Article 127 of the Rome Statute which provides that 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." Further, he adds that the "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.”
Sarmiento agreed that "this principle was acknowledged in Pangilinan vs. Cayetano where the Court noted that withdrawal from a treaty does not extinguish liabilities for acts committed before the withdrawal took effect.”
Q: Who can represent the former president in the ICC?
While there is a freedom to choose counsel, accreditation is required under the Rules of Procedure and Evidence (RPE), said Sarangaya, citing Rule 22.
As of February 2025, there were only five Filipino ICC accredited lawyers namely, Gilbert Andres, Joel Butuyan, Nashmyleen Marohomsalic, Charles Janzen Chua, and Herminio Harry Roque.
However, Sarangaya said any nationality of accredited lawyers may represent the former president.
Q: Was the coordination made by the government with the Interpol legal?
Espinas said it may not be held illegal because Interpol is an entity working for the enforcement of criminal cases (especially if there are documents that support the implementation of the warrant of arrest). In fact, the Philippine government also asked for the assistance of the Interpol.
The Interpol is just an agency that implements the warrant with the assistance of the Philippine government, he added.
Q: Was there a valid warrant of arrest served against the former president? May it be questioned before the ICC?
As far as the duty to comply with the Interpol, Sarangaya believes it was properly complied by virtue of the country's commitment. However, he noted that Article 59 of the Rome Statute also requires compliance with local laws.
The legality of the arrest of former President Duterte may be questioned by his legal team before the Pre-Trial Chamber of the ICC, said Sarmiento. However, unless there were grave or serious violations of his rights under the Constitution and the ICCPR, the ICC’s jurisdiction will not be invalidated.
Tabujara believes that Duterte had a right to counsel, and there was a valid warrant of arrest without commission of violence.
Editor’s Note: This is an updated article. Originally posted with the headline “Duterte on Trial: Legal experts answer burning questions on his ICC case.”