The arrest and surrender of former President Rodrigo Duterte to the International Criminal Court (ICC) have sparked fierce debate over national sovereignty and constitutional rights. Was this act lawful? Did Philippine authorities violate due process or surrender the nation’s sovereignty to an international tribunal?

A close reading of the 1987 Constitution and Republic Act No. 9851—the Philippine Act on Crimes Against International Humanitarian Law, Genocide, and Other Crimes Against Humanity—reveals that Duterte’s surrender was not only legal but constitutionally sound. It represents an act of sovereign cooperation, not subservience.

The Constitutional Foundation

Article II, Section 2 of the 1987 Constitution declares that the Philippines “adopts the generally accepted principles of international law as part of the law of the land.” This clause enshrines what lawyers call the doctrine of incorporation, by which customary international law automatically forms part of domestic law.

Republic Act No. 9851, enacted in 2009, operationalizes this principle. It aligns Philippine law with the Rome Statute, which established the ICC, by defining and penalizing international crimes such as genocide and crimes against humanity. Under RA 9851, the Philippines undertook to cooperate with international courts in prosecuting these crimes.

Section 17 of RA 9851 is particularly decisive. It provides that “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.”

This provision directly applies to Duterte’s case. When the ICC had already begun investigating the so-called “war on drugs” deaths allegedly committed between 2011 and 2019, Philippine authorities were authorized by law to dispense with domestic prosecution and instead surrender the accused to the ICC.

A Judicial Warrant, Not a Political Act

The ICC’s warrant of arrest against Duterte was issued by a Pre-Trial Chamber—a panel of judges operating under Article 58 of the Rome Statute. The warrant was transmitted through the International Criminal Police Organization (INTERPOL), which regularly circulates such judicial orders among States Parties.

An ICC warrant is not an act of foreign coercion. It is a judicial process—the product of judicial scrutiny, based on “reasonable grounds to believe” that a crime within the ICC’s jurisdiction has been committed.

Thus, when Philippine authorities arrested Duterte on the strength of this ICC warrant, they were not acting arbitrarily or politically. They were implementing a lawful judicial directive, issued by a competent international court, and recognized domestically under RA 9851.

This satisfies the requirement of due process of law under the Philippine Constitution. Due process, after all, does not demand that a person be tried only in Philippine courts. What it demands is that no person be deprived of liberty except through a lawful and fair judicial process.

Duterte’s right to due process is not denied—it merely shifted to the ICC’s judicial framework, which mirrors the same guarantees found in the 1987 Constitution. He is now afforded the opportunity to defend himself before a court that guarantees counsel, evidence, and impartial adjudication.

Post-Withdrawal Jurisdiction

Critics often argue that the Philippines’ withdrawal from the Rome Statute in 2019 stripped the ICC of jurisdiction. That is incorrect.

The Supreme Court of the Philippines, in Pangilinan et al. v. Cayetano et al. (G.R. No. 238875, March 16, 2021), ruled categorically that the country’s withdrawal “does not affect the duty to cooperate with the ICC in proceedings that began while the Philippines was still a State Party.”

The ICC, in turn, has repeatedly held that withdrawal does not extinguish its jurisdiction over crimes allegedly committed before the effective date of withdrawal—March 17, 2019.

In fact, on October 23, 2025, the ICC Pre-Trial Chamber I issued a ruling that it can exercise jurisdiction over alleged crimes committed in the Philippines between November 1, 2011 and March 17, 2019. The Chamber held that the preliminary examination conducted by the ICC Prosecutor in February 2018 constituted a “matter… already under consideration by the Court” under Article 127(2) of the Rome Statute; thus, the Philippines’ withdrawal did not prejudice the Court’s ability to proceed.

The defense’s argument that the ICC lacked jurisdiction because the formal investigation was only authorized in 2021 (after the Philippines’ withdrawal) was rejected on the grounds that the preliminary examination itself sufficed to trigger the regime.

This means the ICC retains jurisdiction over Duterte for acts allegedly committed between 2011 and 2019, and the Philippines remains bound to cooperate in those proceedings. The execution of the ICC warrant through INTERPOL thus rests on firm legal ground, both internationally and domestically.

Sovereignty as Responsibility

Far from being a betrayal of sovereignty, Duterte’s surrender under RA 9851 affirms it. True sovereignty is not isolationist defiance; it is the exercise of national will in accordance with the rule of law and international commitments freely undertaken.

The Philippines joined the ICC voluntarily, with the concurrence of the Senate. RA 9851 was enacted by the Philippine Congress and signed by a Philippine president. When authorities executed the ICC warrant, they acted under Philippine law, not foreign compulsion. That is sovereignty in action.

To call this arrest “kidnapping” or “extraordinary rendition” is to misstate both law and fact. Kidnapping implies illegality and lack of judicial authority. Extraordinary rendition bypasses the judicial process. But Duterte’s arrest and surrender were based on a judicial warrant, executed under a Philippine statute, and conducted within a framework of international legality.

What occurred was not rendition—it was the faithful enforcement of the rule of law.

Due Process in a Global Context

It bears emphasizing that due process is not territorially confined. The right to be heard, to be presumed innocent, to confront witnesses, and to appeal an adverse judgment—these rights are guaranteed by the Rome Statute and the ICC’s Rules of Procedure and Evidence.

Thus, the constitutional promise of due process is fulfilled when a Filipino citizen is tried before a legitimate court—domestic or international—where justice, fairness, and procedural safeguards are upheld.

To insist that due process can only occur within Philippine territory is to misunderstand both the Constitution and the country’s international obligations.

A Step Toward Justice

The surrender of a former president to an international court is unprecedented in Philippine history. It is not an act of humiliation but a moment of moral courage—an acknowledgment that no one, however powerful, stands above the law.

By enforcing the ICC warrant under RA 9851, the Philippines honors not only its international commitments but also the spirit of its own Constitution, which aspires to “peace, equality, justice, freedom, cooperation, and amity with all nations.”

In truth, this act affirms both justice and sovereignty. It shows that in a democracy governed by law, even the most powerful are accountable—and that due process, wherever fairly administered, remains the proudest proof of freedom.

The header image is from the Rappler March 19, 2025 article about families of drug war victims who have chosen to step back from public interviews to process their trauma following threats from Duterte supporters.

About the author

RAUL F. BORJAL, known as “Rolly” to his family and friends, was born in Naga City, Camarines Sur, and now resides in Parañaque City, Metro Manila. An alumnus of both Ateneo de Naga University and Ateneo de Manila University, he held senior executive roles in several domestic and multinational corporations, culminating in his retirement as Vice President and Corporate Secretary of a Filipino-owned group of companies.

He is married to the former Wenifreda D. Parma, a cum laude graduate of Ateneo de Naga University, and together they have four children. Rolly is also a co-founder and a member of the editorial board of Dateline Ibalon.