by Atty. Josiah David Quising

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Photo Credit: Senator Bong Go/Public Domain

FORMER PHILIPPINE President Rodrigo Duterte is the first Filipino and the first Asian to be arrested by the International Criminal Court. He has been accused of orchestrating a series of extrajudicial killings (EJKs) that occurred during his time as mayor of Davao City (2011–2016) and continued under his anti-drug campaign as president (2016–2019). According to the ICC Prosecutor, this falls under what is called crimes against humanity—killings or exterminations committed as part of a widespread or systematic attack directed against any civilian population.

Findings and Accusations: The Drug War in Numbers

THE EJKs WEREN’T exactly kept a secret by the former president. In fact, he was proud of it. According to the 2017 Year-End Accomplishment Report published by the Office of the President itself through its Presidential Communications Operations Office, the Philippine Drug War resulted in 20,322 deaths –3,967 from anti-drugs operations, while 16,355 were carried out by vigilantes, labeled as homicide cases under investigation. These data were cited by no less than the Philippine Supreme Court when it required the Office of the Solicitor General (OSG) to release drug war records, an order ignored by the OSG. Note that these deaths were just in one year.

The drug war was formalized by the Duterte Administration in 2016 through Command Memorandum Circular for the PNP Anti-Illegal Drugs Campaign, otherwise known as “Project: Double Barrel”. The Circular stated that its purpose was the “neutralization of illegal drug personalities nationwide”. Discussing the term “neutralization”, Supreme Court Senior Associate Justice Caprio quoted former PNP Chief Director General Dela Rosa, defining “neutralization” as “surrender, arrested, or killed”.

In 2024, the House of Representatives conducted a legislative investigation into the Duterte Drug War. According to the Progress Report of the Joint Committee on the Dangerous Drugs Public Order & Safety, Human Rights, and Public Accounts, over 7,600 people were killed in police operations from July 2016 to June 2022. Of these, more than 7,100 were either labeled pushers or users. The investigation also revealed that deaths were allegedly incentivized, with police officers receiving as much as ₱2 million per kill. Former President Duterte himself admitted using leftover campaign funds to bankroll the reward system.  Of the over 32,800 policemen charged in connection with these deaths, 99.17% were exonerated with only 30 being dismissed. The House proceeded to recommend the filing of cases against the former President, specifically crimes against humanity.

Since 2016, Duterte has repeatedly encouraged the killing of suspected criminals. Some of his public statements include:

Reacting to the increasing deaths in the Duterte Administration, the United Nations Office of the High Commissioner on Human Rights (OHCHR) released a report in July 2020 regarding the situation of human rights in the Philippines. The OHCHR called out the violent execution of the anti-drug policies of the Philippines. The report also saw connection drawn between the speeches of the President and the conduct of the police during drug operations, finding that the “repeated verbal encouragement made by highest-level State officials to use lethal force may have emboldened the police to treat the circular as permission to kill”. Impunity amongst the ranks of the police were also noted as the former President himself promised pardon and protection.

All of these were considered by the International Criminal Court Pre-Trial Chamber in issuing its warrant of arrest against the former President, to quote: “the Chamber finds reasonable grounds to believe that Mr Duterte is individually responsible for the crime against humanity of murder (article 7(1)(a) of the Statute) as an indirect co-perpetrator.”

Crimes Against Humanity

ARTICLE 7 of the Rome Statute defines Crimes Against Humanity as a widespread or systematic attack directed against any civilian population. The Pre-Trial Chamber particularly took note of the former President’s involvement in the Davao Death Squad during his time as a mayor in Davao City and subsequently in the Philippine Drug War when he was President, specifically by designing the drug war, instructing violent acts, promoting killings, and incentivising murder.

This isn’t the first time that an individual has been held liable for promoting violence. In the International Military Tribunal established after World War II, Julius Streicher, a propagandist of Nazi Germany, was convicted of crimes against humanity. The court ruled that his public incitements against Jews—despite not directly killing anyone—contributed to widespread violence. Similar judgments were made in the International Criminal Tribunal for Rwanda (ICTR) and the International Criminal Tribunal for the Former Yugoslavia (ICTY), where officials who encouraged genocide or other atrocities through speeches were held accountable.

Duterte often defends these remarks as mere jokes. However, incitement to commit crimes, even when framed as jokes, is not simply a matter of “opinion” or “personal view.” Under international law, such statements may constitute incitement to mass killings and human rights violations.

ICC Jurisdiction

EVEN THOUGH the Philippines withdrew from the ICC in 2019, the Philippine Supreme Court in the case of Pangilinan et al. v. Cayetano et al. (G.R. No. 238875) ruled that the Philippines is still obligated to cooperate with the ICC and that withdrawing from the Rome Statute does not exempt it from accountability for actions done while it was still a party to the treaty. According to Article 127(2) of the Rome Statute:

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, including any financial obligations which may have accrued. Its 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, nor shall it prejudice in any way the continued consideration of any matter which was already under consideration by the Court prior to the date on which the withdrawal became effective.

Therefore, the ICC can still investigate and try complaints against the government or individuals for crimes under the Rome Statute committed before the Philippines’ withdrawal became effective on March 17, 2019.

But doesn’t this violate Philippine sovereignty?

NO, THIS IS not a violation of Philippine sovereignty because Philippine laws allow it. Under Section 17 of R.A. 9851, Philippine authorities may decide not to pursue an investigation or prosecution of a crime punishable under this law if another court or international tribunal is already conducting such investigation or prosecution. Instead, authorities may surrender the suspect or accused to the appropriate international court, which in this case would be the International Criminal Court.

According to former ICC Judge Raul Pangalangan in Legal Developments in the Situation of the Republic of the Philippines: A UP Law Faculty Colloquium on the International Criminal Court (ICC) held last March 14, the principle of complementarity also would not apply since there are no pending cases in the Philippines against former President Duterte related to the EJKs during his Drug War. Under this principle, the ICC cannot intervene in a case if a country is capable and genuinely undertaking steps to investigate or prosecute such crimes. However, since no case has been filed against Duterte for the EJKs in his drug war, it is clear that the ICC can now step in.

Why were there no cases filed against the former President or the agents of the drug war?

INDIVIDUAL CASES against policemen were filed but almost all were dismissed by the Duterte government and when opposition lawyers tried to question the drug war policy itself, the Duterte Administration simply ignored the order of the Supreme Court to submit drug war records. In a Senate hearing conducted last March 20, it was revealed by the current Justice Secretary under the Marcos Jr. Administration that 95% of wrongful deaths under the Duterte Administration’s drug war had no police records. The former President also enjoyed presidential immunity while in office. After his term ended and the ICC investigation progressed, families of drug war victims were threatened and harassed, discouraging them further to come forward and file a case against the populist president.

But why ICC?

DUTERTE IS BEING held accountable for killing more than 20,000 Filipinos through his “Drug War”. By doing this, he violated not only Philippine law, but also international obligations to respect human rights and the inherent value of human life itself. That’s why his crimes are not only crimes against Filipinos but crimes against humanity. This is covered by the concept of jus cogens—a principle in international law wherein the laws it includes must be followed by all States, even without a treaty or agreement, or even if they do not consent. Examples include the prohibition of slavery, torture, genocide, and attacks against civilian populations (crimes against humanity). The Philippine Constitution recognizes this. According to Section 2, Article II:

“The Philippines … adopts the generally accepted principles of international law as part of the law of the land…”

This includes the concept of jus cogens, which was recognized by the Supreme Court in Bayan Muna v. Romulo, et al. (G.R. No. 159618, 2011).

Throughout history, many political and military figures have been accused and held accountable before international tribunals for massive human rights violations—such as the Holocaust in Germany and Japan’s invasion during World War II, the genocide in Rwanda, war crimes in Yugoslavia, and mass killings in Cambodia. All of these were tried not in local courts, but in various international tribunals because of the gravity of the perpetrators’ crimes.

The persistent incitement to violence spoken by a popular and powerful individual with government authority has been recognized in international law and by the international community as dangerous and harmful. The arrest of the former President is definitely a step towards justice.
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