ICC warrants: Executive or judicial direct effect

On March 11, 2025, what I call the “executive direct effect” of international law made possible the historic arrest and surrender of former President Rodrigo Duterte to the International Criminal Court (ICC).

However, Sen. Ronald “Bato” Dela Rosa’s case, assuming an ICC arrest warrant is also issued against him over the Duterte drug war, might take a different route—that of “judicial direct effect.” Questions of procedure and jurisdiction hound “Operation Pursuit” against Duterte, who is accused of presiding over a bloody drug war that allegedly killed anywhere between 6,000 and 30,000 civilians.

The extradition of Filipinos to overseas courts has long been governed by Presidential Decree No. 1069, the 1977 extradition law issued by the late President Ferdinand Marcos Sr. But the law’s interstate framework applies only to requests by a foreign government. Duterte’s case is unprecedented: his arrest is the first sought by an international tribunal for any Filipino, and of one who is a former head of state at that.

This lacuna greeted Duterte’s arrest by the Philippine National Police on International Criminal Police Organization (Interpol’s) “Red Notice.” Into this gap, President Marcos stepped in. His decision to surrender Duterte to the ICC was an “authoritative decision-making” by nonjudicial domestic institutions (Higgins, 1968;1994). The President sidestepped judicial processes, allowing international law to pierce the municipal legal order as a sword would, where municipal law would otherwise have set the rules of recognition. The President exercised his authority as chief architect of foreign policy with his constitutional residual powers (Marcos v Manglapus, 1989). This contrasts with the traditional direct effect, in which courts use international norms to resolve cases even without a treaty or statutory basis (Nollkaemper, 2014).

Tons of ink had been spilt over whether Article 59 of the ICC’s Rome Statute (RS) applies to Duterte’s arrest and surrender. It tasks a “custodial State” to bring a person arrested pursuant to an ICC warrant to a domestic court for what amounts to extradition proceedings.

We now know—thanks to a Senate investigation led by Sen. Imee Marcos—that Operation Pursuit was executed by the administration in close but backdoor coordination with the ICC and Interpol. It falls under “ad hoc arrangements” between a nonstate party and the ICC (RS, Article 87 (5) (a)). If so, Article 59 would cover such informal cooperation, per the RS Triffterer/Ambos Commentary (2022), said to be the most authoritative: “Essentially, this basis can either take the form of a legally binding cooperation regime or retain a wholly informal character.”

Here, then, is a demonstration of the surprising ways in which the international and municipal legal orders often overlap and interact—a pluralist system of deferral and referral between state sovereignty and international legal rules and processes. This interplay between executive and judicial direct effect redefines how sovereignty responds to international accountability mechanisms. The former tests the limits of political discretion, the latter, constitutional bounds; but together, they seek the Philippine legal order’s recognition of norms of international accountability for atrocity crimes.

Article 59 defers to national law for procedures to effect arrest, and surrender, requiring only compliance with human rights standards. The informal cooperation between a nonstate party and the ICC must be “consistent with any other applicable international or domestic legal constraints” (Boas, 2011).

The Philippines should have passed a law of ICC cooperation when it became an RS party in 2011 (RS, Articles 86 and 88). It did not. Facing a non liquet, the Marcos administration, at great political risk, made a renvoi, referring the Duterte arrest and surrender back to the rules of international law.

This brings us back to Dela Rosa and other persons under ICC investigation. May the government now leave its case to the Philippine courts? Unfortunately, no such rules allow it, not even the new 2025 extradition procedures of the Supreme Court, which remain within the inter-state framework. The Supreme Court must draft separate rules under its rulemaking powers. Republic Act No. 9851, the International Humanitarian Law Act, allows “reverse complementarity” or referral by the Philippines of a case already investigated by a foreign or international court to the latter (Section 17). By direct effect, the Supreme Court may craft the arrest-and-surrender rules to protect rights already accepted from international legal norms (Mejoff, Borovsky, 1951). But these should be “less burdensome” and speedier, respecting the “distinct nature” of the ICC’s anti-impunity work (RS, Article 91 (2) (c)) under erga omnes obligations.

Either way, Dela Rosa will find himself caught between a rock and a hard place.

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Romel Regalado Bagares is an independent Filipino scholar of international law.