The Marcos government should make a declaration accepting ICC jurisdiction over its Duterte case

Because of the Duterte “Defense Challenge with Respect to Jurisdiction” of the International Criminal Court (ICC) over the Duterte drug war Crime Against Humanity of Murder, anchored on the Rome Statute of the ICC’s Article 12(3) on “Preconditions to the exercise of jurisdiction,” the ICC Duterte Case ball or buck, which the Marcos government passed to the ICC by arresting and surrendering Duterte, looks like it is being passed back to the Marcos government for another judgment call to make regarding a requisite formal declaration accepting the exercise of jurisdiction by the ICC over the Duterte Case if it is to proceed there. The Marcos government should make that declaration, for at least two reasons of law:

1. It is the “right, just, and necessary” thing to do in the paramount interest of justice and accountability against impunity. Just like the Marcos government’s arrest and surrender of Duterte in cooperation with the ICC pursuant to its Warrant of Arrest. This is allowed under Republic Act No. 9851, Section 17, second paragraph, “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...” The ICC investigation and prosecution of the Duterte drug war Crime Against Humanity of Murder of thousands of suspected drug offenders will likely not be able to proceed without the above-said Marcos government declaration. In which case, the decisive arrest and surrender by the Marcos government of Duterte to the ICC will be rendered naught or nugatory. Sayang all that “right, just, and necessary” effort, despite some flaws. More so with the absence so far of a similar domestic RA 9851 case against Duterte since 2016, which justifies the recourse to the ICC, especially by the Duterte drug war victims’ families and counsels.

2. A Marcos government formal declaration accepting ICC jurisdiction over its Duterte Case is indirectly but logically mandated by the 2021 Supreme Court (SC) Decision in Pangilinan vs. Cayetano (898 Phil. 522) which in effect upheld the withdrawal of the Philippine State through the previous Duterte government from the Rome Statute of the ICC, but which also ruled, among others, that “Any and all governmental acts up to March 17, 2019 may be taken cognizance of by the International Criminal Court.” President Marcos is bound by this SC ruling, just like all relevant Philippine authorities. The President is the “chief architect of Philippine foreign policy” but he is guided in this by the Philippine Constitution and the relevant jurisprudence of the SC. He has sworn an oath to “fulfill [his] duties as President of the Philippines,” which includes “preserve and defend its Constitution, execute its laws, do justice to every man” -- which would include both Duterte and his thousands of drug war victims. Otherwise, he may be impeached for “culpable violation of the Constitution” and “betrayal of the public trust.”

Fiat justitia, ruat caelum (“Let justice be done, though the heavens fall”).

-- Judge Soliman M. Santos, Jr. (Retd.), Naga City, 6 May 2025