By Farah G. Decano

 

ON March 11, 2025, former President Rodrigo Roa Duterte was arrested at the Manila International Airport. He was flown out on the same day to the Hague to face the criminal accusations lodged against him before the International Criminal Court (ICC).

There is no question that the ICC retains its jurisdiction over his case because the charges were initiated before the effectivity of Philippines’ withdrawal from the Rome Statute in March 2019.

Based on international jurisprudence (Alvarez-Machain Doctrine), it is predicted that the ICC will continue with the processes regardless of the manner by which the former President was handed to its jurisdiction.

Following his delivery to the international tribunal,  our country is now beset by one burning issue – whether or not the manner of arrest and transfer of the former President to the Netherlands was in violation of legal processes.

Those who are for Duterte argue that the arrest and transfer of the former commander in chief violate the requirements of Article 59 of the Rome Statute.  This provision mandates the arresting state to bring the suspect to its competent judicial authority for any interim release application.  The latter will then decide on this request for interim in consultation with the ICC.

The Department of Justice defended the government’s lightning speed action in flying the former chief executive to the Hague by claiming that its office is also a judicial authority within the purview of the Roman Statute.  This position is labeled as baseless legal calisthenics by many Duterte supporters.

Let us discuss a bit.  The handover of a suspect found in one state to another state is generally called “rendition.”  Extradition is generally the preferred way of rendition because there is the intervention of the local courts.  The Philippines has its extradition law (PD 1069) which provides rules in implementing extradition agreements.  In that decree, the suspect is first required to be delivered to a domestic court of law.

It seems that the ICC requirements and PD 1069 are in synch in treating arrests and transfers of suspects to the requesting state.  Other legal experts, however, counter that the basis for the swift taking of the former president is section 17 of RA 9851 (Philippine Act on Crimes Against International Humanitarian Law, Genocide and Other Crimes Against Humanity) which provides in its second paragraph:

“In the interest of justice, the relevant Philippine authorities may dispense with the investigation or prosecution of a crime punishable under this Act if another court or international tribunal is already conducting the investigation or undertaking the prosecution of such crime. Instead, the authorities may surrender or extradite suspected or accused persons in the Philippines to the appropriate international court, if any, or to another State pursuant to the applicable extradition law and treaties.”   

Above paragraph  authorizes the Philippine government to extradite the suspect or accused.  It also settles the jurisdictional concern  on complementarity because the Philippines, by law, has already waived its right to prosecute the suspect when there is already a pending action in another foreign court.

The many possible rebuttals and rejoinders on this issue of delivery may seem endless.  President Duterte’s children have filed multiple Habeas Corpus cases with the Supreme Court.  We hope to be educated further by the Highest Court by providing razor sharp arguments in dissecting all the angles.

Right after the 9-11 Twin Towers attacks, the United States through then Secretary of State, Condoleeza Rice, justified the use of extraordinary rendition as a necessary tool in countering terrorism.  While international law declares extraordinary rendition illegal, the concurrence of most Americans somehow provided legitimacy to this manner of transfer.

These are curious times. Will the legitimacy of the swift transfer be determined by  politics?  It still boils down to who wields the greatest power.  Is it Marcos? Is it Duterte?  Or is it the Filipino people? Or the Rule of Law?

Share your Comments or Reactions

comments

Powered by Facebook Comments