The question of due process in the arrest and then transfer to The Hague of former president Rodrigo Duterte is significant for many reasons, not least of which is the likelihood that it will be part of his argument when he asks for an interim release.
There are two events that happened on Tuesday, March 11: arrest, and then the transfer. Each one is covered by different legal frameworks.
Arrest via Interpol
That the arrest warrant was issued by the International Criminal Court (ICC) is confirmed. “The ICC Pre-Trial Chamber I has issued an arrest warrant for Mr Rodrigo Roa Duterte for charges of the crime of murder as a crime against humanity,” ICC spokesperson Fadi El Abdallah told Rappler. The warrant has also been published on the ICC website.
The Philippines is no longer an ICC member, so to be able to effect a warrant of arrest, it should go through a different framework — or at least that was the design of the Marcos government.
Enter the International Criminal Police Organization (Interpol), which we are a member of. “Interpol asked for help, and we obliged because we have commitments to the Interpol which we have to fulfill. If we don’t do that, they will not — they will no longer help us with other cases involving Filipino fugitives abroad,” President Ferdinand Marcos Jr said before midnight Tuesday, just after the plane carrying Duterte took off for The Hague in the Netherlands.
The ICC can request the Interpol to put its wanted people on its red notice, which the Court did. Interpol’s Manila office received the request early morning Tuesday, March 11, according to Malacañang. The red notice was not a warrant, but an alert to member countries to help them implement the warrant as requested by the ICC.
Duterte was arrested upon landing at the Ninoy Aquino International Airport (NAIA) around 10 am on the same day. He flew in from Hong Kong. Interpol rules say “member countries apply their own laws in deciding whether to arrest a person.”
“The arrest that we did today was in compliance with our commitments to Interpol. It just so happened that [the warrant] came from ICC. But it’s not because it came from ICC, it’s because it came from Interpol,” Marcos said.
Was he read his Miranda rights?
The Department of Justice (DOJ) said the arrest “complied with both local and international standards,” the department’s spokesperson Mico Clavano said on Wednesday, March 12.
Prosecutor General Richard Fadullon who served the warrant said: “The former President was read his rights and informed of the charges against him.”
Police Criminal Investigation and Detection Group (CIDG) chief Nicolas Torre read Duterte his Miranda rights.
On Instagram, Duterte’s daughter Veronica or “Kitty” updated the world from Villamor Air Base where the former president was held for over 12 hours. Kitty’s Instagram stories showed Duterte and other companions demanding to know where the plane would take him. “That’s above my pay grade,” Torre was heard saying in Filipino.
“We can do this the hard way, we can do this the easy way. The easy way, Sir, is for you to choose three people to accompany [Duterte] to the plane,” Torre said.
This is the first point of dispute of the Duterte camp — their right to be informed where the former president was going to be taken.
But Clavano said: “Due courtesy and consideration were accorded to the former president and his entourage in the course of the implementation.”
Article 59 of the Rome Statute
Throughout the day, Duterte’s camp was insisting that the former president needed to be brought to a local court.
This is according to Article 59 of the Rome Statute, or the charter of the ICC, which says: “A person arrested shall be brought promptly before the competent judicial authority in the custodial State” which will evaluate the arrest. This did not happen. Kristina Conti, an ICC-accredited counsel representing victims of the drug war, said it is possible that the Philippines passed on these responsibilities. But to whom?
Neri Colmenares, a human rights lawyer, said the legal dilemma for Duterte is to invoke Article 59 of the Rome Statute but at the same time assert that the Court has no jurisdiction over him.
“If he is willing to abide by my unsolicited advise, he better abandon that ‘no jurisdiction’ argument,” said Colmenares.
The Philippines is no longer a state party, or member, of the ICC. The ICC has twice ruled that they preserved jurisdiction over the case because the Rome Statute states that any process that started before withdrawal will continue after withdrawal. The last ruling, however, was a narrowly won 3-2 vote. Duterte can potentially use these two dissenting opinions when he defends himself.
But even if we weren’t an ICC member country, “I think we still need to follow Article 59,” said Mike Tiu, head of the international criminal law program of the University of the Philippines (UP) International Legal Studies.
“Article 59 is not addressed to state parties. It identified the custodial state which we were,” said Tiu.
“But there is an argument to be made that being a non-party means some provisions need not be complied,” Tiu added.
Can they just put Duterte on a plane?
Putting Duterte on a plane to send to The Hague was another event, covered by another legal framework.
Press undersecretary Claire Castro said that they followed a local law, RA 9851 or the International Humanitarian Law (IHL) which provides for ways to treat suspects wanted by an international court.
“He was not extradited in the first place, he was surrendered. It is regular what we did, what the government did was regular. It was based on the law, our own law RA 9851,” said Castro.
Castro cited Section 17 of the IHL which says: “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,” the law reads.
“When the Philippines chose to follow RA 9851, in implementing a validly issued warrant, instead of the procedure in Article 59 of the Rome Statute, that was its prerogative. The implementation of the warrant was a domestic concern of the Philippines,” human rights lawyer Joel Butuyan said, an ICC-accredited counsel.
‘Far better treatment’
Conti, the victims’ lawyer, said that there was “substantial compliance” anyway in arresting Duterte, “a far better treatment” than many Filipino suspects, she said.
“I am happy that Duterte saw for himself the right process, and that he was not subjected to tokhang,” Conti said in Filipino, referring to the warrantless knock-and-plead campaign of Duterte’s policemen whose legality is still being questioned in the Supreme Court to this day.
Emily Soriano, mother of 16-year-old Angelito who was killed after Christmas Day in 2016, found it ironic that Duterte was questioning the validity of his warrant.
Duterte’s policemen, Soriano said, did not believe in warrants.
Recalling a tokhang operation in their community in Caloocan in 2020, Soriano said cops “kicked on the door, and when our member asked for the warrants, the cops said warrants are not a thing,” she said in Filipino.
Until when will Duterte be in The Hague?
Rappler has learned that when Duterte arrives in the Netherlands, ICC judicial cooperation officials will take custody of him in a handover with Philippine law enforcement authorities. Dutch police will be on standby to assist.
Initial proceedings at the ICC would be Duterte’s appearance either voluntarily or via summons. Duterte will be informed of his rights — including the right to apply for an interim release — akin to bail in the Philippines.
If Duterte applies for an interim release, it requires another determination by the judges.
Expectedly, due process will be raised.
“The Dutertes cannot go to the ICC and complain that the implementation was not regular, because they should raise this domestically,” said Butuyan.
So far, the Duterte camp has filed two petitions before the Supreme Court. The first, which essentially asked the Court to stop the transport of Duterte, may be considered moot at this point, according to lawyers. It’s been raffled at the Supreme Court nonetheless.
The second petition, filed by Kitty Duterte Wednesday morning, is a habeas corpus petition which essentially asks the Supreme Court to compel the return of Duterte.
This is uncharted territory for many lawyers, as this is the first time we’ve been in this position.
Dahlia Cuartero, whose son Jesus was killed in a 2019 police buy bust in Bulacan, told Duterte’s daughter Kitty: At least your father is alive.
“Hindi mo alam ang pakiramdam na maghanap ng taong patay na. Samantalang ang tatay niya buhay, maganda ang sinapit sa paghuli sa kanya,” said Cuartero.
(You don’t know what it feels like to look for someone who’s already dead. Meanwhile, her father is alive, and was treated very well upon arrest.)
– Rappler.com