Was former president Rodrigo Duterte’s arrest on the basis of the International Criminal Court warrant a form of “state kidnapping” as claimed by Vice President Sara Duterte? 

VP Sara Duterte calls ex-Pres. Rodrigo Duterte's arrest 'state kidnapping'

Former Supreme Court magistrate Antonio Carpio said Section 17 of Republic Act 9851 or the Philippine International Humanitarian Law may be used to explain why the Philippine government allowed Duterte to be flown to The Hague to face an ICC complaint for crimes against humanity even without a trial in his own country.

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“Merong batas tayo yung RA 9851, that is the Philippine International Humanitarian Law. Kasi we adopted the Rome Statute into our law. Nakalagay sa section 17, ‘In the interest of justice the relevant Philippine authorities may dispense with the investigation or prosecution of a crime punishable under its 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 person in the PH to the appropriate international court if any or to another state pursuant to the applicable extradition laws and treaties.”  

Carpio said the petition for TRO against the arrest warrant is moot and academic since Duterte is already out of the country and will soon be under the jurisdiction of the ICC.

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He cited the legal doctrine of ‘Male Captus Bene Detentus’ or “wrongly captured, properly detained” amid the Duterte camp’s claim that no warrant was served during the ex-president’s arrest.

“The principle says na ‘yung tribunal will have jurisdiction, will continue to have jurisdiction even if the accused is wrongfully arrested because the arrest has nothing to do with the tribunal,” he said.

“If the accused is surrendered to the ICC, the circumstances of his arrest by the surrendering state will not be inquired into,” he added.

He said the principle is followed in many countries including the US except in cases where there is torture or serious mistreatment.

Philippine authorities arrested Duterte Tuesday on an arrest warrant issued by the ICC.

The ICC sought Duterte’s arrest on a crimes against humanity charge in relation to alleged extrajudicial killings occurring between 2011 and 2019.

President Ferdinand Marcos Jr. later confirmed that an aircraft carrying Duterte to The Hague left Manila at 11:03 p.m.