The arrest and dispatch to The Hague of former president Rodrigo Duterte on March 11 stunned many Filipinos, not least his family members and their ardent supporters.

For some relatives of the victims of his “war on drugs” watching the historic daylong event on television in real time was like an Edsa 1986 moment: They applauded when it was announced that the plane carrying Duterte had finally taken off. It was, until then, hard to believe that the ex-president, who mouths the word “kill” as casually as he blurts “p*tang ina” while ordering the police to wage his antidrug campaign, could ever face trial for crimes against humanity.

President Marcos Jr. justified his administration’s action to surrender his predecessor to the International Criminal Court (ICC), not as an obligation to the tribunal because the Philippines is no longer a state party to the Rome Statute, but as a “commitment” to help the International Criminal Police Organization (Interpol) implement an arrest warrant. The Rome Statute is the treaty that established the ICC in July 2002.

“The plane is en route to The Hague in the Netherlands, allowing the former president to face charges of crimes against humanity in relation to his bloody war on drugs,” he said minutes after the chartered jet left Philippine air space. “Mr. Duterte was arrested in compliance with our commitments to Interpol.”

Surprisingly and for the first time, the President used “bloody war on drugs” to characterize Duterte’s signature administration project, a term often used by the media and rights watchdogs.

An official count by the police placed the number of those killed during Duterte’s presidency at over 6,000, but human rights groups say the figure is multiple times higher.

What lies ahead for the former president, the families of the victims of his drug war, and the country?

To help laypersons understand some of the issues and matters related to Duterte’s fate, CoverStory interviewed law professor Raul C. Pangalangan, a former dean of the University of the Philippines (UP) College of Law and the only Filipino to sit as a judge of the ICC, where he served from July 2015 to May 2021.

Pangalangan, 66, taught public international law and constitutional law at UP, where he earned his law degree in 1983. He obtained his master of laws (1986) and doctor of juridical science (1990) degrees from Harvard University. He also taught at the Harvard Law School and at The Hague Academy of International Law. He was for a time publisher of the Philippine Daily Inquirer and a weekly columnist (“Passion for Reason”) in its Opinion section. 

“On call” as a judge in the Permanent Court of Arbitration in The Hague, Pangalangan is currently in Washington, DC as a fellow at the Woodrow Wilson International Center for Scholars.

Here are questions and his answers from the interview, with minor editing for ease of reading, plus some notes for context:

From a judicial and political point of view, what is the significance of the arrest of the former president? What kind of message does it send to the Philippines and the rest of the world?

Raul C. Pangalangan (RCP): The ICC was established precisely to put an end to impunity and to ensure that the most serious crimes of concern do not go unpunished. The arrest carries out the fundamental purposes of the Rome Statute. It also sends the message that the Court is serious with its mandate and will move forward despite all the difficulties along the way.

The arrest is being questioned in the Supreme Court. Essentially, the petitioners want to bring him back to the Philippines. Did the Philippine government take any shortcuts in taking him to The Hague? Is it conceivable for a suspect already held in ICC custody to be brought back home?

RCP: If you look at the history of international criminal tribunals, these have been indifferent to how the Court acquired jurisdiction over the person of the accused. By now, you have heard of Adolf Eichmann, a Nazi officer who was kidnapped from Argentina, brought to trial in Israel for crimes that he committed in Germany and other parts of Europe. Indeed, the fundamental principle is that, as a matter of fairness to the accused, the Court requires him to be present during the proceedings. We don’t allow trials in absentia, and therefore the presence of the accused is the starting point of the trial.

Based on newspaper reports, one petition I understand is for a writ of habeas corpus. But he’s no longer in the custody of the government, so it’s moot and academic. He’s now in the custody of a foreign court.

So even if you order the government to produce the body, the government can say, “Well, he’s over there, just go after him.”

What is the implication of the Solicitor General’s withdrawal from the case on the position of the Philippine government? Does it weaken it, in the cases filed against it in the Supreme Court?

RCP: These domestic proceedings have no impact on the jurisdiction of the Court. Jurisdiction is vested by law, not by the parties. Opinions taken by certain government officials cannot, on their own, vest jurisdiction upon the Court if it has none, or oust the Court in its jurisdiction if it didn’t. It’s not as if the parties can collude to either grant or withhold jurisdiction. The fundamental principle is that the Court has “jurisdiction over jurisdiction,” the power to decide its own jurisdiction on the basis, in this case, of the Rome Statute.

From March 7, when the ICC Pre-Trial Chamber issued the arrest warrant, to early morning of March 11, until Duterte left Hong Kong, could China, which is a member of the Interpol though not of the ICC, have arrested him?

RCP: China is not a member of the Rome Statute, and has no obligation of “judicial cooperation” to carry out any order of the ICC. It is a stranger to these proceedings

What is important is that, even after Philippine withdrawal from the Rome Statute, the Court retains jurisdiction over crimes committed while the Philippines was an ICC state-party. That is provided by Article 127 of the Rome Statute, and is affirmed by the Philippine Supreme Court itself in Pangilinan v. Cayetano. In other words, the substantive obligation to carry out the warrant of arrest is based upon a treaty obligation to which China is not a party. (The Philippines was a party to the Rome Statute from November 2011, when Duterte was still mayor of Davao City, to March 2018, when the country withdrew from the treaty. The withdrawal took effect a year later. -Ed.)

How far down the chain, so to speak, will the ICC prosecutor seek those allegedly culpable of crimes against humanity?

RCP: Thus far, what we have is the former president of the Philippines, commander-in-chief of the Armed Forces, charged as an indirect co-perpetrator for the crime against humanity of murder. So, the crime charged is murder.

Charging him as an “indirect co-perpetrator” is what we in international criminal law call the “mode of attribution,” the way by which the accused is linked to the crime, how he or she participated in the commission of the crime. In this case, the direct perpetrator is the gunman, the guy who pulled the trigger.

The co-perpetrators are those who either solicited or induced the commission of the crime.

And so, if the question is, will the Court go all the way down to the hitman, to the gunman, the Court can certainly do so, especially if they have evidence to prove it. But do they need to do it? No, they don’t. It’s enough that they identify the masterminds and the planners and the main conspirators for the act. Indeed, for the purpose of the case against former president Duterte, all they need to prove is how he “solicited or induced” others to commit the crime of murder, through his orders, his instructions, his public statements and assurances. 

Knowing what you know about the case against him, and he has been through his initial hearing, is it likely that he would be tried? At this point, the ICC still hasn’t decided to proceed to trial.

RCP: I think one point needs to be explained and clarified in most Philippine debates. Right now, the case is before the Pre-Trial Chamber or PTC. After the PTC confirms the charges and essentially arraigns the accused on those charges, the ICC president will assign the case to a Trial Chamber.

That means that a new set of judges will sit in the trial, receive the evidence, decide guilt or innocence, and if in case of guilt, impose the punishment on the accused and fix the reparations for the victims.

Indeed, we can anticipate that Duterte will raise two matters. He will challenge jurisdiction, and he will request provisional release. Any ruling on those motions will most probably be appealed. It will then proceed to the Appeals Chamber.

Note that, ordinarily, a party may challenge jurisdiction only once. Former president Duterte will have his one shot at jurisdiction. But there are several other persons who are expected to be charged in the Situation in the Philippines. All the subsequent indictees will have their chance to challenge jurisdiction. Perhaps they assume their situation is different. Or they can present better legal arguments. Or perhaps they can have better fortune.

What kind of witnesses does the ICC seek in crimes against humanity? Eyewitnesses, whistleblowers?

RCP: Witnesses are presented to prove certain facts. So, what facts constitute the crime? What crime are we proving? It is murder. What mode of liability? What mode of attribution are we relying on? It is indirect co-perpetrator.

How do you prove those two things? How do we prove that Duterte is a co-perpetrator? They’ll have to prove that the killings were committed pursuant to the instructions, the goading, the support and encouragement of Duterte, or of his subordinates, or with weapons, financing and other resources that he or they provided. They can show his orders, his press conferences, his presidential statements, his repeated assurances to the gunmen. So, if the question is, who are the witnesses? Well, I think you have two DDS (Davao Death Squad) gunmen already. All the family members can testify what happened there. The neighbors can testify if you need evidence of the killings.

Under Philippine law and ICC law, the accused is presumed to be innocent until proved guilty beyond reasonable doubt.

Duterte is old and frail. He will be 80 on March 28. Does the ICC give any consideration to the health and age of an accused in reviewing the weight of the evidence against him?

RCP: The weight of the evidence, the probative value of the evidence is one matter. It will depend upon the credibility of the witnesses and the importance of the fact proved.

A completely separate question is the frailty and the age of the accused. I am pretty sure it will be considered when they impose the penalty. We have a maximum of 30 years [in prison], absolute maximum of 30 years, usual maximum of 25.

So, I imagine if he is convicted, they will take into account the fact that 80 plus 30 is 110. But it will affect the trial only if his age will render him incapable of standing trial, if he is senile or basically unable to be aware of what is going on. And the record there is the Khmer Rouge tribunal. 

This arrest is being framed by supporters of Duterte as a retaliation by the President against the Dutertes—father and children—for their attacks and criticism of his administration and as a way to deflect attention from the problems he is facing—the alleged corrupt budget, the misuse of PhilHealth funds and corruption.

RCP: I’d rather not comment on domestic Philippine politics. I don’t want to get drawn into that. For me, the most important point here is that many of the big developments in law, if you look at the history of both human rights and international law, draw from unusual historical accidents.

I don’t expect the scenario to be neat. And it’s almost like the lawyers are playing catch-up with history. You know, history marches forward by its own cadence and law is trying to play catch-up on how to take into account, how to accommodate, how, in this case, to achieve justice under the circumstances.

Can you comment on former executive secretary Salvador Medialdea’s statement at the initial hearing? He said: “Two troubled entities struck an unlikely alliance—an incumbent president who wished to neutralize and choke the legacy of my client and his daughter [Vice President Sara Duterte] on the other hand and a troubled legal institution subject to delegitimization and desperate for a prized catch and a legal show today on the other hand.” Wasn’t that an affront to the ICC?

RCP: When I read the statement, for me, the innuendo was a collusion between the Philippine government and the ICC. I don’t think he was alluding to any other entities.

So, if your question is, was it an affront to the Court? Yes, it was. And it’s rather unusual to hear these polemics because, you see, to what end will one criticize the Court, the Court you’re calling upon to give justice to your client? But anyway, I leave that to the lawyer.

If Duterte is convicted, where will he serve the sentence and can the family ask that, okay, now he’s convicted, just bring him back, we’ll keep him in a local jail in Davao so we can visit him every day?

RCP: The ICC does not have a jail facility for the service of sentence. The jail facility in The Hague is merely for people undergoing a trial, the accused.

So, what will happen is the ICC will negotiate with member-states who are willing to provide prison facilities for the convicted person. … By the way, that’s no longer the purview of the judges. … That’s the carrying out of the order. We just find him guilty and we send him to prison. For me, hypothetically, I imagine Duterte will not want to be held in a place with severe winters. … Maybe he will ask for a facility close to good hospitals. Maybe he will ask for a facility where he is culturally comfortable.