Not even a president is above the law
No one is above the law. Yet too often, justice requires an extra push to bring powerful figures to account. This past week, the Filipino people witnessed a historic moment: the arrest of a former president—one feared and influential—by Philippine authorities for trial before an international court.
The International Criminal Court (ICC) in The Hague issued the warrant for former president Rodrigo Duterte’s arrest. As many will recall, Duterte withdrew the Philippines from the ICC in 2018, midway through his presidency (2016-2022). The withdrawal took effect a year later-in March 2019. He claimed then, as he still does, that ICC jurisdiction was an affront to national sovereignty, but the move was widely seen as an attempt to evade accountability for the brutalities of his war on drugs. Now, reality has caught up with him.
Citing the Rome Statute—the treaty the Philippines ratified in 2011—the ICC maintained that a country’s withdrawal does not erase its obligations for crimes committed while still a member. The Philippine Supreme Court affirmed this in its March 16, 2021 ruling: “Whatever process was already initiated before the International Criminal Court obliges the state party to cooperate … The Philippines remained covered and bound by the Rome Statute until March 17, 2019.”
Despite this, President Marcos initially refused to engage the ICC or cooperate with its investigations. This stance was a bitter disappointment, particularly to the families of thousands of victims of extrajudicial killings under Duterte’s drug war. Yet, whether out of political necessity or genuine recognition of the country’s international obligations, Mr. Marcos ultimately changed course. The dramatic events of March 11—Duterte’s arrest upon arrival from Hong Kong, his swift transport via private jet to the Netherlands, and his formal handover to the ICC—make it clear that the Philippines is now fully cooperating with the tribunal. (I frankly don’t understand why the government has chosen to dilute the significance of its actions by invoking our commitments to the International Criminal Police Organization rather than our continuing obligations under the Rome Statute.)
Mr. Marcos’ decision to act is remarkable given his own family’s history. The Marcoses were exiled in 1986 and faced legal battles abroad. That his administration would arrest a former president and surrender him to an international court speaks volumes about the political will behind this move.
Throughout his presidency, Mr. Marcos has shown a preference for avoiding direct confrontations. Even in the face of relentless taunts from Duterte and his children—including public accusations of drug use and weak leadership—he remained measured.
Vice President Sara Duterte, after resigning from his Cabinet, escalated tensions further by openly declaring political war against him. She even made the astonishing claim that she had hired an assassin explicitly to target him, the First Lady, and House Speaker Martin Romualdez should she ever be assassinated herself. Despite facing impeachment threats, she remains a formidable contender for the next presidential election.
Duterte, though no longer in office, himself still wields considerable influence. His cult-like following and ability to instill fear among politicians and public officials remain intact. His Senate and House appearances regarding the drug war showcased this continued power; to this day, neither the Philippine National Police nor the Department of Justice has dared file charges against him in any Philippine court, despite his own repeated admissions that he alone is responsible for the extrajudicial killings.
Legally, the government’s decision to turn him over to the ICC is sound. Republic Act No. 9851, passed in 2009, explicitly allows for such a transfer. This little-known law, titled “An Act Defining and Penalizing Crimes Against International Humanitarian Law, Genocide, and Other Crimes Against Humanity,” states: “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 use of “may” rather than “shall” means the government had discretion to cooperate or not. Mr. Marcos chose to act. Whether his decision was driven by pragmatism or principle, it marks a significant moment in Philippine history. Justice, at long last, has taken a step forward.
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