‘Superman’ Duterte could still face ICC trial due to little-known Philippine law: witness

Ex-senator Leila De Lima tells Congress RA 9851 recognises ICC jurisdiction over crimes against humanity committed in the Philippines

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Former senator Leila De Lima speaks during a joint committee hearing at the House of Representatives in Metro Manila, the Philippines, on Tuesday. Photo: EPA-EFE

Published: 10:09am, 23 Oct 2024Updated: 11:03am, 23 Oct 2024

Former Philippine president Rodrigo Duterte could still be arrested and tried by the International Criminal Court (ICC) due to a little-known domestic law predating the country’s ICC membership, former senator Leila De Lima told a congressional probe.

There has been ongoing legal debate in the Philippines over whether Duterte can still be prosecuted by the ICC for alleged crimes against humanity that took place during his war on drugs, particularly since the country withdrew from the Rome Statute, the treaty that established the court’s authority, in 2019.

Dutere’s supporters argue this withdrawal nullifies the court’s jurisdiction, but the ICC is still investigating the thousands of extrajudicial killings during his administration since they occurred while the Philippines was still party to the treaty. The law De Lima discussed in her testimony before Congress’ quad committee probe on Tuesday would further support allowing the ICC’s case to proceed.

Former senator Leila De Lima during the congressional probe on Tuesday. Photo: EPA-EFE

De Lima, who was detained for nearly seven years on drug charges widely criticised as politically motivated under Duterte’s administration, explained that in 2009 – two years before the Philippines joined the ICC – the country passed Republic Act No 9851, which defines crimes against humanity and allows international courts to prosecute such crimes when the Philippine authorities choose not to.

This “little-known” law defines and penalises crimes against humanity, she explained, noting that Section 17 contains a special clause where the country cedes its authority to investigate such crimes “in the interest of justice … if another court or international tribunal is already conducting the investigation or undertaking the prosecution of such crime”.

A reading of RA 9851 shows that in such cases, “the authorities may surrender or extradite suspected or accused persons in the Philippines to the appropriate international court”.

De Lima, who was also a former secretary of the Department of Justice under the late president Benigno Aquino III, pointed out that RA 9851 was enacted nearly two years before the Philippines joined the ICC in November 2011. The Senate had ratified the Rome Statute in August that year.