Last week, what had long seemed impossible to victims seeking justice for the killings from the Philippine “war on drugs” finally happened. Upon landing at Manila’s Ninoy Aquino International Airport from a trip in Hong Kong, former Philippine President Rodrigo Duterte was taken into custody by the Philippine authorities pursuant to a warrant of arrest from the International Criminal Court (ICC). He was immediately surrendered to the Court’s jurisdiction a day later, on Mar. 12. As of writing, Duterte is appearing before the ICC’s Pre-Trial Chamber I to be informed of the charges against him and his rights as an accused (Art. 60, Rome Statute).
This case is notable for several reasons. Duterte is the first head of state from Asia to be arrested, from a region where accountability efforts for serious international crimes are relatively weak. This will also be one of the few cases at the ICC not linked to an armed conflict. Moreover, Duterte is accused of a single crime against humanity of murder instead of a multitude of crimes against humanity (e.g. torture, rape) under Article 7 of the Rome Statute, as is common in ICC cases, although the Prosecutor tried to include these (para. 5, 12, ICC Warrant of Arrest).
The killings arising from Duterte’s war on drugs happened soon after he assumed the presidency in 2016. As the Prosecutor’s request for authorization of an investigation (“Prosecutor’s Request”) alleges, law enforcement authorities including members of the Philippine National Police, then led by Bato dela Rosa (who is now a member of the Philippine Senate) carried out “Project Double Barrel,” under which police forces would conduct “buy-bust” operations andraids and fabricate evidence, among others (para. 13-15, Prosecutor’s Request). In the course of these raids, the request alleges that police officers would fatally shoot persons allegedly involved in drug-related activities by invoking self-defense, accusing the suspect of posing threats to life and safety (para. 23, 28-32, Prosecutor’s Request), a pattern locally known as “nanlaban.” The request further alleges that the drug war led to a rise in vigilante killings, often by persons “riding in tandem” as is colloquially known, with two people on a motorcycle, one driving and the other shooting the target, and then speeding away (para. 74). (Disclosure: I worked on the human rights investigation of the killings in 2017 for the Commission on Human Rights of the Philippines.) Corpses of suspects would sometimes be found with a cardboard sign identifying them as a drug pusher. According to the Prosecutor, this was a continuation of a similar pattern of killings when Duterte was the mayor of Davao City, in southern Philippines, for years prior. The situation covers crimes committed from the time the Philippines was a party to the Rome Statute on Nov. 1, 2011, until Mar.16, 2019, when the Philippines’ treaty withdrawal took effect.
Until the end of Duterte’s term in 2022, and up to the present, no person most responsible for the drug-related killings has been held accountable. To the contrary, the relatively few prosecutions focused on individual police officers, obscuring the systematic and widespread nature of the drug-related deaths. For most of the time, the former president and other government officials, including then-police chief/now-senator dela Rosa, openly admitted and defended the campaign. In fact, what first compelled the ICC to officially take notice of the situation in the Philippines was partly Duterte’s rhetoric. These included public statements that drug addicts deserved to be “slaughtered” the way “Hitler massacred 3 million [sic] Jews” and that law enforcement should “double their efforts” or “triple them if need be” until the last drug lord, financier, and pusher have surrendered or put “below the ground if they so wish.” Such statements partly formed the basis of the arrest warrant (para. 22).
Justice and Political Will
Even so, many in the Philippines were shocked that the arrest happened. The Philippines withdrew from the Rome Statute on Mar. 17, 2018, shortly after the ICC commenced a preliminary examination on the situation in the country. In the lead-up to the 2022 presidential elections, current President Ferdinand Marcos Jr. and Vice President Sara Duterte, Duterte’s daughter, formed an alliance to beat the political opposition. Even then, friction between the elder Duterte and the Marcos camp had existed, but both camps managed to stay united until at least political gains were secured. As their terms started, the alliance quickly unraveled. The elder Duterte repeatedly accused Marcos of being a drug addict. In June 2024, the vice president resigned from her position as the education secretary to signal the end of that alliance. In November, she threatened to assassinate the president. By December, impeachment complaints were filed against her at the House of Representatives for the assassination threat and undermining the administration’s policies.
Still, there were signs that Marcos would not give up the elder Duterte to the ICC. In January 2024, Marcos did not recognize the ICC’s jurisdiction and described it as a “threat” to Philippine sovereignty. Later that year, in November, the message was the same; Marcos expressed no interest in cooperating with the ICC except if the elder Duterte insisted on it (which the latter did, goading the ICC to “hurry up”).
What’s Next for the Philippines
The initial hearing Friday will be followed by a hearing to confirm the charges (Art. 61, Rome Statute), at which the Prosecutor must present sufficient evidence to establish substantial ground to believe that the person committed the crime charged, a higher evidentiary burden than what was required for issuing the warrant of arrest. The Philippines still has a duty to cooperate with the Court in matters under consideration prior to withdrawal (Art. 127, Rome Statute), even if the Marcos administration insists it only helped Interpol – not the ICC – in effecting the arrest.
As the world watches Duterte at the ICC, another question is whether any arrest warrant will be issued for other high-level government officials who played a role in the drug war. As I previously wrote, another possible accused is dela Rosa, who headed the police force at that time. After Duterte was arrested, dela Rosa was not immediately accessible and has since pled the Senate for protection from any arrest warrant that may be issued against him in the future.
Many have expressed cynicism about the arrest, i.e., that it was politically driven due to the rift between Marcos and the Dutertes, or that the ICC preys on weaker states as it remains unable to arrest powerful heads of state such as Russia’s Vladimir Putin and Israel’s Benjamin Netanyahu. Others believe that the arrest will only strengthen support for the Dutertes, as shown by supporters protesting the arrest in the Philippines and beyond. The vice president has already framed the arrest as a form of kowtowing to foreigners, a sentiment that taps into the country’s colonial past. This development could indeed strengthen the chances of Vice President Sara Duterte winning the 2028 presidential elections. This scenario is not without precedent. A similar situation happened in a country where the ICC had a previous investigation – Kenya. The current president, William Ruto, was previously accused of the crimes against humanity of murder and persecution, among others, in connection with the 2007-2008 post-election violence in the country. Ruto was then a member of parliament and government minister. The charges were eventually vacated and the case terminated for lack of sufficient evidence. The ICC proceedings did not seem to affect Ruto’s political career. In 2022, he won the Kenyan presidential elections.
All these takes are warranted. But for the many drug war victims, human rights advocates, and members of civil society that have painstakingly worked on the issue through the years without the wheels of justice going anywhere, justice now seems to be within reach. No matter the motivations behind it, the arrest counts as a win for those harmed by the drug war in the Philippines. That is enough for the moment.