Duterte ICC Trial and the Law of Accountability

1. Introduction

The Duterte ICC Trial places one of the most contested questions in modern international criminal law before the International Criminal Court: when can a domestic law-enforcement campaign become a crime against humanity? The case concerns Rodrigo Roa Duterte, former President of the Philippines and former mayor of Davao City, who has been committed to trial before the ICC after the confirmation of charges for crimes against humanity of murder and attempted murder. The confirmed charges arise from alleged killings connected to the Philippine “war on drugs” and cover conduct said to have occurred on Philippine territory between 1 November 2011 and 16 March 2019 (ICC, 2026a).

The legal importance of the case does not lie in Duterte’s political reputation alone. It lies in the Court’s task of translating allegations of mass police-linked violence into the strict language of the Rome Statute. The prosecution must prove more than brutality, public fear, or a high number of deaths. It must show that the charged acts formed part of a widespread or systematic attack directed against a civilian population, carried out pursuant to a state or organisational policy, and that Duterte bears individual criminal responsibility under the Statute (Rome Statute, 1998, arts 7 and 25).

This distinction is essential. Not every unlawful killing by police officers is a crime against humanity. Domestic homicide, excessive use of force, corruption, and abuse of office may be serious crimes under national law without crossing the threshold of international criminal law. Article 7 of the Rome Statute requires a broader structure: a course of conduct involving multiple acts, directed against civilians, with the required scale or organisation, and linked to a policy. The Duterte case will test how those elements apply where the alleged violence was presented domestically as crime control rather than as military repression, ethnic persecution, or armed conflict.

The case is also a test of jurisdiction after withdrawal. The Philippines became a State Party to the Rome Statute on 1 November 2011 and later withdrew, with withdrawal taking effect on 17 March 2019. The ICC has maintained that withdrawal does not remove jurisdiction over alleged crimes committed while the state was party to the Statute (ICC, 2025a). This is not universal jurisdiction. The Court’s authority rests on prior treaty consent, territorial jurisdiction, and the temporal limits of the Statute. A serious analysis must avoid the simplistic claim that the ICC is overriding Philippine sovereignty. The harder legal point is that sovereignty was exercised through ratification, later withdrawal, and the legal consequences attached to both acts.

The admissibility question is equally central. The ICC operates under complementarity, which gives national courts priority where they genuinely investigate or prosecute the same person for substantially the same conduct (Rome Statute, 1998, art. 17). The issue is not whether the Philippines has courts, prosecutors, or legal procedures in the abstract. The issue is whether domestic proceedings genuinely addressed Duterte’s alleged responsibility for the same pattern of killings now charged at the ICC. Proceedings limited to low-ranking police officers, isolated incidents, or politically safe inquiries would not necessarily make the ICC case inadmissible.

The substantive criminal-law issue is the classification of the alleged conduct as crimes against humanity. The ICC materials refer to an alleged attack against civilians in the context of the anti-drug campaign, involving killings attributed first to an alleged organisational policy connected to the Davao Death Squad and later to an alleged state policy during Duterte’s presidency (ICC, 2025b). That theory places the policy element at the centre of the case. The prosecution must connect individual incidents of murder and attempted murder to a broader attack. It cannot rely only on general criticism of the drug war or on the moral gravity of extrajudicial killings.

The trial will also turn on leadership liability. Duterte is not alleged to have personally carried out the killings. The arrest warrant treated him as allegedly responsible as an indirect co-perpetrator under article 25(3)(a) of the Rome Statute (ICC, 2025b). This mode of liability requires careful explanation. It concerns participation through others or jointly with others, often through organised structures of power. The prosecution must prove a common criminal plan, a legally significant contribution, and the required mental element. Public speeches, political slogans, operational patterns, and alleged promises of protection may be relevant, but none is automatically sufficient. The evidence must connect Duterte personally to the charged crimes.

At the same time, the trial must be analysed through the rights of the accused. Confirmation of charges is not a conviction. It means the Pre-Trial Chamber found the case sufficiently supported to proceed to trial. Duterte remains presumed innocent, and the Prosecutor bears the burden of proving guilt beyond a reasonable doubt (Rome Statute, 1998, art. 66). This point is not a procedural formality. It is central to the legitimacy of international criminal justice. A trial that concerns grave allegations against a former head of government must remain legally disciplined, especially where public opinion is sharply divided.

Victims also occupy an important place in the proceedings. ICC practice allows victims to participate where their personal interests are affected, subject to the rights of the accused and the fairness of the trial (Rome Statute, 1998, art. 68). In the Duterte case, victim participation may help the Court understand the human impact of the alleged campaign. Yet victim participation does not transform the trial into a truth commission, political inquiry, or general history of the drug war. The Trial Chamber must decide criminal responsibility for specific charges on admissible evidence.

The broader accountability problem is unavoidable. The Duterte ICC Trial sits at the intersection of sovereignty, criminal justice, police violence, and international institutional legitimacy. Supporters of ICC action may view the case as a rare example of accountability for a former head of government. Critics may frame it as selective justice or as interference in domestic affairs. Both positions miss something if they do not begin with the Statute. The Court’s legitimacy will depend less on broad claims about justice and more on its ability to apply jurisdiction, admissibility, article 7, article 25, and fair trial guarantees with precision.

This article examines the case through that legal framework. It first analyses the Court’s jurisdiction after Philippine withdrawal. It then considers admissibility and complementarity, before turning to the elements of crimes against humanity. It next examines Duterte’s alleged individual criminal responsibility, especially indirect co-perpetration and the role of official authority. The final parts address trial procedure, defence rights, victim participation, and the wider consequences of the case for international accountability. The central argument is that the case is significant not because conviction is inevitable, but because it forces international criminal law to confront a difficult boundary: when domestic policing, allegedly organised through lethal policy and repeated killing, crosses into crimes against humanity.

2. Jurisdiction of the Court

2.1 Jurisdiction in the Duterte ICC Trial

The jurisdictional basis of the ICC proceedings against Rodrigo Roa Duterte rests on the Philippines’ prior acceptance of the Rome Statute. The case should not be described as an exercise of universal jurisdiction. Universal jurisdiction allows a state, in limited circumstances, to prosecute certain international crimes regardless of where they were committed and regardless of the nationality of the accused or victims. That is not the legal route used here.

The ICC is a treaty-based court. Its authority depends on the jurisdictional conditions set by the Rome Statute. Under article 12, the Court may exercise jurisdiction where the state on whose territory the alleged conduct occurred was a State Party at the relevant time, or where the accused is a national of a State Party. In the Duterte case, the central basis is territorial jurisdiction: the alleged crimes occurred in the Philippines while the Rome Statute applied to the Philippines (Rome Statute, 1998, art. 12).

This point matters because much public commentary treats the case as if the ICC were asserting a free-standing power over a non-consenting state. That is legally inaccurate. The Philippines consented to the Rome Statute and became bound by it before the alleged crimes under investigation. The Court’s jurisdiction is anchored in that earlier act of treaty consent. The later withdrawal raises a separate legal question, but it does not change the fact that the Court’s authority began with the Philippines’ own accession to the Statute.

The ICC’s warrant of arrest against Duterte followed this logic. Pre-Trial Chamber I stated that the alleged conduct occurred on Philippine territory during the relevant period and that the case fell within the Court’s jurisdiction, without prejudice to later determinations (ICC, 2025a). The Chamber was not claiming jurisdiction over all drug-war allegations as a moral or political matter. It was identifying alleged crimes within a defined territorial, temporal, and subject-matter framework.

Subject-matter jurisdiction is also essential. The ICC may deal only with crimes within article 5 of the Rome Statute: genocide, crimes against humanity, war crimes, and aggression. The Duterte case is framed as crimes against humanity, specifically murder and attempted murder. That means jurisdiction is not triggered by the existence of unlawful killings alone. The alleged conduct must be capable of legal characterisation under article 7 of the Statute. Jurisdiction and merits are distinct, but the Court must still be satisfied that the alleged crimes fall within the Statute’s subject matter.

The legal architecture is narrow and formal. The ICC does not prosecute every serious human rights violation. It does not sit as a general appeal court over national criminal justice systems. In this case, its authority depends on three linked propositions: the Philippines was bound by the Rome Statute during the alleged conduct; the alleged conduct occurred on Philippine territory; and the alleged conduct falls within the category of crimes against humanity. If any of these propositions failed, the jurisdictional basis would weaken.

2.2 The period covered by the charges

The relevant period is central to the Court’s jurisdiction. The ICC materials identify the period as 1 November 2011 to 16 March 2019. This period is not accidental. It corresponds to the time during which the Philippines was bound by the Rome Statute before its withdrawal took effect. The arrest warrant records that the alleged crimes were committed on Philippine territory during that period, which brings them within the Court’s temporal and territorial jurisdiction (ICC, 2025a).

The starting date, 1 November 2011, reflects the entry into force of the Rome Statute for the Philippines. The Court cannot prosecute alleged crimes committed in the Philippines before that date unless another jurisdictional basis exists. For the Duterte case, this means that alleged conduct before 1 November 2011 falls outside the Court’s ordinary temporal jurisdiction. Historical background may still help explain context, but it cannot by itself supply criminal jurisdiction over earlier conduct.

The end date, 16 March 2019, is equally important. The Philippines deposited its written notification of withdrawal on 17 March 2018, and withdrawal took effect one year later, on 17 March 2019. The ICC materials use 16 March 2019 as the last day before withdrawal became effective. Alleged crimes after that point raise a different jurisdictional problem and are not covered by the same treaty-based temporal foundation (ICC, 2025a).

This temporal limit gives the case a defined legal boundary. The Philippine “war on drugs” did not begin and end neatly within the ICC’s jurisdictional window as a matter of political history. Yet international criminal jurisdiction is not built around broad political narratives. It is built around legally relevant dates. The Court must work within the period during which the Rome Statute bound the Philippines.

The same point applies to Duterte’s different roles. The ICC materials refer to alleged conduct connected both to his time as mayor of Davao City and to his presidency. The legal issue is not the office title in isolation. It is whether alleged acts within the jurisdictional period can be connected to an article 7 attack and to Duterte’s individual responsibility. Earlier conduct may be relevant to background, pattern, or alleged continuity, but the charged conduct must remain within the Court’s temporal jurisdiction.

The period also affects evidence. Prosecutors may rely on background material to explain how an alleged policy or pattern developed, but a conviction can only rest on charged crimes within the Court’s jurisdiction. A legally disciplined article should keep this distinction clear. Background is not the same as chargeable conduct. Pattern evidence is not the same as proof of each legal element. The trial will require the Chamber to separate context, admissible evidence, and the charged crimes with care.

2.3 Withdrawal from the Rome Statute

The Philippines’ withdrawal from the Rome Statute is the most contested jurisdictional issue in the case. Article 127 allows a State Party to withdraw by written notification to the Secretary-General of the United Nations. The withdrawal takes effect one year after receipt of the notification, unless the notification specifies a later date. The Philippines deposited its notification on 17 March 2018, and withdrawal took effect on 17 March 2019 (Rome Statute, 1998, art. 127; ICC, 2025a).

The legal effect of withdrawal is not retroactive. Article 127 does not say that withdrawal cancels jurisdiction over crimes allegedly committed while the state was party to the Statute. Nor does it allow a state to erase legal consequences already attached to its membership. A state may withdraw prospectively, but it cannot rewrite the legal status of the period during which it had accepted the Court’s jurisdiction.

Article 127(2) is crucial. It provides that withdrawal does not affect obligations arising while the state was a party, including financial obligations. It also states that withdrawal shall not affect cooperation with the Court in connection with criminal investigations and proceedings where the withdrawing state had a duty to cooperate and which began before the withdrawal became effective. It further provides that withdrawal shall not prejudice the continued consideration of any matter already under consideration by the Court before the effective date of withdrawal (Rome Statute, 1998, art. 127(2)).

The ICC has applied this logic to the Philippines situation. The Court’s position is that it retains jurisdiction over alleged crimes committed on Philippine territory while the Philippines was a State Party. Pre-Trial Chamber I repeated this point in the warrant of arrest, relying on the Court’s earlier decisions in the Philippines situation and the Appeals Chamber’s 2023 judgment authorising the resumption of the investigation (ICC, 2023; ICC, 2025a).

The 2023 Appeals Chamber judgment is especially important because it addressed the relationship between withdrawal and the continuation of ICC activity. The majority confirmed the authorisation to resume the investigation into the Philippines situation. It is accepted that the Court could continue to address alleged crimes committed during the period of State Party membership, even after withdrawal had taken effect (ICC, 2023). The later proceedings against Duterte build on that jurisdictional foundation.

The point should not be overstated. Withdrawal limits the Court’s jurisdiction going forward. It is legally meaningful. A withdrawn state is no longer in the same position as an active State Party for future conduct. Yet withdrawal does not operate as an amnesty clause. It does not extinguish jurisdiction over alleged crimes committed during the period when the treaty applied. That is the central distinction.

A useful analogy is treaty termination more broadly. Under general treaty law, termination or withdrawal does not normally affect rights, obligations, or legal situations already created through execution of the treaty unless the treaty provides otherwise (Vienna Convention on the Law of Treaties, 1969, art. 70). The Rome Statute contains its own specific rule in article 127, but the general treaty-law logic supports the same conclusion: withdrawal normally acts forward, not backward.

For the Duterte case, this means the defence may challenge jurisdiction, but the core withdrawal argument faces a serious textual obstacle. The Statute does not support the claim that withdrawal removes jurisdiction over alleged crimes committed before withdrawal became effective. The better legal question is narrower: which specific alleged acts fall within the period of jurisdiction, which proceedings or matters were already before the Court, and what cooperation obligations survived withdrawal.

2.4 Treaty consent and sovereignty

The sovereignty objection is politically powerful, but it is often legally imprecise. The ICC’s jurisdiction over the Philippines situation is not best understood as a simple conflict between international law and sovereignty. It is better understood as a dispute about the legal consequences of sovereign treaty action.

Ratification of the Rome Statute was itself an exercise of sovereignty. By joining the Statute, the Philippines accepted a legal regime under which international criminal jurisdiction could apply to crimes committed on its territory during membership. That consent was not unlimited. It was defined by the Statute’s subject-matter jurisdiction, temporal jurisdiction, admissibility rules, procedural guarantees, and complementarity. Yet it was still consent to an international criminal jurisdiction capable of reaching individuals, including state officials.

Withdrawal was also an exercise of sovereignty. Article 127 gives States Parties the legal power to leave the Rome Statute. The Philippines used that power. The legal dispute concerns what withdrawal can and cannot do. It can end future treaty membership after the required period. It cannot automatically nullify jurisdiction over alleged crimes committed when the Statute was binding.

Complementarity is the point where sovereignty and accountability meet most directly. The Rome Statute gives national systems the first responsibility to investigate and prosecute. The ICC may act only when the conditions of admissibility are satisfied. This structure does not treat domestic courts as irrelevant. It makes genuine domestic proceedings the primary route for accountability (Rome Statute, 1998, art. 17).

Cooperation raises a more difficult sovereignty issue. The ICC has no police force. It depends on states for arrest, surrender, evidence, witness protection, and enforcement. Duterte’s surrender to the Court illustrates that the ICC’s legal authority becomes operational only through state action. International criminal justice, in practice, is not detached from domestic institutions. It relies on them.

This dependence creates a structural tension. A state may have accepted the Statute during the relevant period, but later political authorities may resist cooperation, deny obligations, or frame the Court as a foreign intrusion. That tension is not unique to the Philippines. It is a recurring feature of the ICC system. The Court has legal jurisdiction, but it needs state cooperation to make that jurisdiction effective (Schabas, 2020).

A serious academic treatment should avoid two weak positions. The first is the claim that sovereignty automatically defeats ICC jurisdiction. That ignores treaty consent and the text of article 127. The second is the claim that sovereignty becomes irrelevant once international crimes are alleged. That ignores complementarity, withdrawal, cooperation, and the fact that the ICC system was built through state consent.

The stronger analysis is more precise. Sovereignty operates at several stages: the Philippines chose to join the Rome Statute; later chose to withdraw; retained primary responsibility to investigate alleged crimes genuinely; and faced legal questions about cooperation with the Court. The case is not a morality play about sovereignty versus justice. It is a legal dispute about the consequences of consent, withdrawal, territorial jurisdiction, and the limits of domestic accountability under the Rome Statute.

3. Admissibility Before the ICC

3.1 The complementarity rule

Admissibility is the legal filter that decides whether a case properly belongs before the ICC. The Court is not designed to function as a first-instance global criminal court for every grave offence. Its role is subsidiary. National authorities have the primary duty to investigate and prosecute international crimes, and the ICC may act only when the conditions of the Rome Statute are met.

This structure is known as complementarity. Article 17 of the Rome Statute provides that a case is inadmissible when it is being genuinely investigated or prosecuted by a state with jurisdiction, or when the state has investigated and decided not to prosecute, unless that decision resulted from unwillingness or inability genuinely to proceed (Rome Statute, 1998, art. 17). The rule protects national criminal jurisdiction, but it also prevents states from using superficial proceedings to shield powerful suspects.

Complementarity is not a courtesy doctrine. It is a legal test. A state cannot defeat ICC admissibility by pointing to the mere existence of courts, police files, commissions, congressional hearings, or public statements promising justice. The question is more demanding: Is there a genuine national process addressing the same case that is before the ICC?

In the Duterte ICC Trial, this distinction is decisive. The admissibility question is not whether the Philippines has a functioning legal system in general. Nor is it whether some drug-war killings were reviewed domestically. The relevant issue is whether Philippine authorities genuinely investigated or prosecuted Duterte himself for substantially the same alleged conduct that forms the ICC case.

This is where weak commentary often fails. It treats complementarity as if any domestic legal activity blocks the ICC. That is wrong. The ICC’s case law has developed a stricter approach, usually described as the “same person, same conduct” test. The state proceeding must concern the person targeted by the ICC and the conduct forming the basis of the ICC case (Prosecutor v Saif Al-Islam Gaddafi and Abdullah Al-Senussi, 2013; Prosecutor v Simone Gbagbo, 2015).

The rationale is clear. A government could otherwise avoid ICC jurisdiction by prosecuting low-level perpetrators while leaving senior architects untouched. That would empty the complementarity of its accountability function. The Rome Statute gives priority to genuine national justice, not to symbolic proceedings that avoid the centre of criminal responsibility.

Complementarity also reflects a deeper balance in the ICC system. Sovereignty gives states the first opportunity to deal with international crimes, but sovereignty does not protect impunity. The admissibility regime asks whether national institutions are willing and able to do the work that international criminal law requires. If they are, the ICC must step back. If they are not, the Court may proceed.

3.2 The same person and conduct test

The same person and conduct test asks whether domestic proceedings concern the same accused and substantially the same alleged criminal behaviour. It is not enough for a state to show that it has investigated the general situation. Nor is it enough to show prosecutions for isolated incidents if the ICC case concerns a broader pattern attributed to a senior leader.

This test is especially important in cases involving alleged state-linked violence. Large-scale campaigns often produce many possible suspects: direct perpetrators, local commanders, political officials, police chiefs, intelligence actors, and civilian leaders. Domestic authorities may prosecute some individuals while avoiding those who allegedly designed, encouraged, protected, or coordinated the policy. Complementarity cannot be assessed by looking only at the existence of any prosecution somewhere in the system.

In the Duterte case, the ICC proceedings focus on Duterte’s alleged individual criminal responsibility for crimes against humanity connected to the anti-drug campaign. Domestic proceedings against police officers for individual killings would not automatically cover that case. They may be relevant, but they would not make the ICC case inadmissible unless they genuinely addressed Duterte’s own alleged responsibility for substantially the same pattern of conduct.

The distinction between direct perpetrators and senior suspects is not technical formalism. It is central to international criminal law. Crimes against humanity often involve organised structures. The person most responsible may not be the person who pulled the trigger. A domestic system that prosecutes only the shooter, while avoiding the alleged policy-maker or organiser, may leave the core international criminal case untouched.

The ICC Appeals Chamber has treated the “case” for admissibility purposes as defined by both the person and the conduct. In the Libyan proceedings, the Court required national proceedings to cover the same individual and substantially the same conduct alleged before the ICC (Prosecutor v Saif Al-Islam Gaddafi and Abdullah Al-Senussi, 2013). Later case law confirmed that domestic proceedings must be concrete, not merely prospective or abstract (Prosecutor v Simone Gbagbo, 2015).

Applied to the Philippines situation, this means that general investigations into drug-war abuses are not enough by themselves. Parliamentary inquiries, administrative reviews, police disciplinary actions, or prosecutions for isolated killings may show some domestic activity. Yet they do not answer the admissibility question unless they reach the same alleged case: Duterte’s responsibility for the charged crimes against humanity.

The same conduct requirement also matters. A domestic case framed narrowly as unlawful homicide by individual officers may not match an ICC case framed as murder and attempted murder as crimes against humanity. The legal characterisation need not be identical in every technical detail, but the domestic proceedings must cover substantially the same criminal behaviour. If the domestic case avoids the alleged widespread or systematic attack, the policy element, or the accused’s role in that structure, it may not be the same case.

A serious article should avoid both extremes. It should not dismiss all Philippine proceedings as irrelevant without analysis. It should also not assume that any domestic proceeding blocks the ICC. The correct approach is comparative: identify the person, identify the conduct, identify the scope of domestic proceedings, and ask whether they genuinely cover the case now before the Court.

3.3 Genuine domestic proceedings

Even when domestic proceedings concern the same person and conduct, the ICC must still assess genuineness. Article 17 refers to unwillingness and inability. These are not vague political accusations. They are legal criteria designed to distinguish real national justice from proceedings that merely create the appearance of accountability.

Unwillingness may be shown where proceedings are designed to shield the person from criminal responsibility, where there is unjustified delay inconsistent with an intent to bring the person to justice, or where proceedings are not conducted independently or impartially (Rome Statute, 1998, art. 17(2)). Each factor directs attention to substance rather than form. A file may exist. A hearing may be held. A statement may announce an investigation. None of that proves genuine accountability if the process avoids the real allegations.

Shielding is the most direct concern. A state may open proceedings not to prosecute, but to protect. This can happen through narrow charges, selective evidence, weak investigative steps, or procedural manoeuvres that reduce exposure for senior figures. In cases involving political leaders, shielding may be subtle. The state may pursue peripheral actors while treating the alleged central decision-maker as outside the scope of inquiry.

Delay is also relevant, but delay alone is not always enough. Complex cases take time. Witness protection, forensic work, and chain-of-command evidence can require a long investigation. The legal problem arises when the delay appears unjustified and inconsistent with a real intention to bring the suspect to justice. In a case involving alleged mass killings over several years, unexplained inaction toward senior responsibility would carry particular weight.

Independence and impartiality are equally important. A genuine process must be capable of investigating the accused without political protection, institutional fear, or conflict of interest. Where the alleged crimes involve police, prosecutors, executive officials, or security institutions, independence becomes harder and more important. Investigators must be able to examine official orders, operational practice, chains of authority, internal records, and the treatment of witnesses.

Scope is another marker of genuineness. Proceedings that focus only on isolated killings may be inadequate if the ICC case concerns a broader attack against civilians. The domestic process must be capable of addressing the alleged policy, the pattern of conduct, and the connection between senior authority and implementing actors. If the inquiry is structurally limited to individual misconduct by subordinates, it may avoid the central crimes charged at the ICC.

Witness protection is not secondary. In cases of alleged state-linked violence, witnesses may fear retaliation, social stigma, police harassment, or political pressure. A domestic proceeding that cannot protect victims, family members, insiders, or former officials may be unable genuinely to proceed, even if the legal system exists on paper. Effective protection affects the ability to collect evidence, test testimony, and reach senior responsibility.

The treatment of senior responsibility is the sharpest test in the Duterte case. International criminal law is often concerned with those who allegedly organise, encourage, direct, tolerate, or protect crimes committed by others. If domestic proceedings avoid this level of responsibility, they may be real as to low-level perpetrators but inadequate as to the ICC case. That distinction matters. A state can be genuinely prosecuting one case while failing to prosecute another.

Inability under article 17 focuses on whether the state is unable to obtain the accused, collect necessary evidence and testimony, or carry out proceedings due to a total or substantial collapse or unavailability of its national judicial system (Rome Statute, 1998, art. 17(3)). The threshold is high. It is not enough to argue that domestic justice is imperfect. The question is whether the system can realistically carry out the proceedings required for the case.

For the Philippines, the stronger admissibility analysis will likely centre more on unwillingness and scope than on complete institutional collapse. The Philippines has courts, prosecutors, and legal institutions. The harder issue is whether those institutions genuinely addressed the alleged responsibility of Duterte for the same crimes charged before the ICC. That is a different question, and it is more legally precise.

Formal activity is not enough. A proceeding that never reaches the alleged policy, never examines senior involvement, never protects key witnesses, and never tests the connection between official authority and repeated killings may fail the genuineness inquiry. Complementarity rewards genuine national accountability. It does not reward avoidance dressed as procedure.

3.4 Gravity of the alleged crimes

Gravity is a separate admissibility requirement. Article 17(1)(d) provides that a case is inadmissible where it is not of sufficient gravity to justify further action by the Court (Rome Statute, 1998, art. 17(1)(d)). This requirement reflects the ICC’s limited mandate and resources. The Court is reserved for the most serious crimes of concern to the international community as a whole.

Gravity should not be reduced to a body count. Numbers matter, but they do not exhaust the analysis. ICC practice has considered factors such as scale, nature, manner of commission, and impact (Prosecutor v Lubanga, 2006; Prosecutor v Ntaganda, 2006). These factors allow the Court to assess why a case deserves international adjudication beyond the raw number of victims.

Scale is still important in the Duterte case. The ICC materials refer to alleged crimes committed as part of a broader attack over several years in the context of the anti-drug campaign. The warrant also refers to thousands of alleged deaths in the wider pattern (ICC, 2025a). Even where the confirmed charges focus on selected incidents, the alleged context is large-scale. The relationship between charged incidents and broader attacks will be central to the gravity analysis.

Duration adds weight. Alleged criminality over the years is different from a single episode of unlawful violence. A prolonged pattern may suggest institutional tolerance, policy continuity, and repeated victimisation. It may also deepen social impact, because communities learn to live under the threat of recurring violence.

The manner of commission is equally relevant. Alleged killings by or with the involvement of law-enforcement actors carry a specific gravity. The state normally claims a monopoly over lawful force. If that authority is allegedly used to carry out or enable unlawful killings, the legal harm is not limited to the deaths themselves. It also strikes at public trust, legality, and the protection owed to civilians.

The victim profile also matters. The alleged targets were often described as suspected drug users, sellers, or criminals. That label cannot remove legal protection. A person suspected of a crime remains entitled to life, due process, and protection against arbitrary killing. International criminal law is especially concerned when social stigma is used to make certain groups appear killable or disposable.

The alleged involvement of state or organised structures increases gravity. Crimes against humanity are not ordinary offences repeated many times. They require a connection to an attack against civilians and a state or organisational policy. If the prosecution proves that violence was linked to official policy or organised structures, the gravity lies partly in the institutional character of the alleged criminality.

The position of the accused also matters. Duterte was a former mayor and later President of the Philippines. Seniority is not guilt. It does not prove responsibility. Yet the alleged involvement of a former head of government affects the gravity of the case because international criminal law is especially concerned with those who may have shaped or authorised criminal policy. The higher the alleged authority, the more important it becomes to test responsibility through evidence rather than assumption.

Gravity also serves a disciplining function. It prevents the ICC from becoming a court for every unlawful killing while allowing it to address cases where domestic violence allegedly becomes organised, repeated, and policy-linked. In the Duterte case, the gravity inquiry should ask not only how many people were killed, but what kind of violence is alleged, how it was organised, who was targeted, how long it continued, and what role the accused allegedly played.

The admissibility analysis should close with a clear point: complementarity and gravity are not technical obstacles to justice, but safeguards that define the ICC’s proper role. If national proceedings genuinely address the same case, the ICC should not proceed. If they do not, and the alleged crimes meet the gravity threshold, the Rome Statute permits the Court to act. In the Duterte case, that is the legal terrain on which admissibility must be judged.

4. Crimes Against Humanity

4.1 The article 7 framework

Crimes against humanity occupy a specific place in international criminal law. They are not defined by the seriousness of one isolated offence alone. They are defined by the relationship between individual acts and a broader attack against civilians. Article 7 of the Rome Statute requires proof of an underlying act, an attack directed against a civilian population, a widespread or systematic character, a state or organisational policy, a connection between the act and the attack, and the accused’s knowledge of that attack (Rome Statute, 1998, art. 7).

This structure prevents the category from becoming a general label for every grave domestic crime. Murder, imprisonment, torture, rape, persecution, enforced disappearance, and other listed acts may become crimes against humanity only when they are committed as part of the wider article 7 context. A single unlawful killing by a police officer may be murder under domestic law. It becomes murder as a crime against humanity only if it is legally connected to an attack against a civilian population and the other contextual requirements are satisfied.

Crimes against humanity do not require an armed conflict. This distinguishes them from war crimes. The law developed through the post-Second World War tribunals, later ad hoc tribunals, and the Rome Statute now recognises that mass or organised violence against civilians may occur in peacetime, under emergency rule, within ordinary policing structures, or under a political campaign presented as public security (Cassese, 2013; Werle and Jeßberger, 2020).

This point is central to the Duterte case. The alleged conduct did not arise from a conventional battlefield. It arose from an anti-drug campaign allegedly involving repeated killings of suspected drug users, sellers, or other persons labelled as criminal threats. The legal question is not whether the Philippines was at war. The legal question is whether the alleged killings formed part of a widespread or systematic attack against civilians under article 7.

The article 7 framework also separates moral condemnation from criminal proof. Public outrage over extrajudicial killings cannot replace legal analysis. The Prosecutor must prove each required element. The defence may contest the existence of an attack, the civilian character of the alleged victims, the widespread or systematic nature of the violence, the existence of a policy, the link between charged incidents and the wider attack, and Duterte’s knowledge.

4.2 Murder as a confirmed charge

Murder is one of the underlying acts listed in article 7(1)(a) of the Rome Statute. In the ordinary sense, murder concerns the intentional killing of a person. In the law of crimes against humanity, that definition is incomplete unless the killing forms part of the broader article 7 attack. The Elements of Crimes require that the perpetrator killed one or more persons, and that the conduct was committed as part of a widespread or systematic attack directed against a civilian population, with knowledge of that attack (ICC Elements of Crimes, 2011).

The confirmed charges against Duterte include murder as a crime against humanity. The Pre-Trial Chamber confirmed charges arising from alleged killings in the context of the Philippine “war on drugs” and committed the case to trial (ICC, 2026a). The charge does not ask the Trial Chamber merely to decide whether certain persons died unlawfully. It asks whether those deaths can be placed inside an alleged attack against civilians and attributed to Duterte through a recognised mode of liability.

This distinction changes the legal analysis. A domestic murder case may focus on the immediate perpetrator, the victim, the weapon, the motive, the causation, and intent. Murder as a crime against humanity also requires the Court to examine the wider pattern: who was targeted, how killings were repeated, whether the violence followed an organised policy, and whether the accused knew the broader attack existed.

For example, if a police officer unlawfully kills a suspect during a single operation, that may amount to domestic murder. If similar killings recur across locations, follow common methods, target a defined civilian group, and are allegedly encouraged or protected by official structures, the same kind of killing may fall into article 7. The international character of the crime comes from the contextual link, not because the victim’s life is more valuable under international law than under domestic law.

The Trial Chamber will need to assess both levels. It must examine the charged killings as concrete incidents, not as abstractions. It must also decide whether those incidents formed part of the alleged broader attack. The prosecution cannot prove crimes against humanity by relying only on general statistics. It must connect specific murders to the alleged attack and to the accused’s alleged responsibility.

4.3 Attempted murder as a separate charge

Attempted murder must be analysed separately from murder. It is not merely a weaker version of the same allegation. In criminal law, attempt concerns conduct directed toward the commission of a crime where the intended result does not occur. Under the Rome Statute, an attempt is addressed through article 25(3)(f), which covers a person who attempts to commit a crime by taking action that commences its execution by means of a substantial step, where the crime does not occur because of circumstances independent of that person’s intentions (Rome Statute, 1998, art. 25(3)(f)).

In the Duterte case, attempted murder matters because the confirmed charges include both completed killings and attempted killings. The legal focus is not only on whether the victims survived. The question is whether the alleged acts moved sufficiently toward intentional killing and whether those acts were part of the same alleged attack against civilians.

This requires careful proof. The prosecution must identify the conduct said to constitute a substantial step toward killing. It must prove the required intent. It must also connect the attempted killing to the alleged widespread or systematic attack. A failed shooting, an interrupted operation, or a victim’s survival after being targeted may support an attempted murder charge only if the legal elements are established.

The separate treatment of attempted murder also protects analytical clarity. It prevents the article from treating all violence in the anti-drug campaign as if it had the same legal form. Some incidents may involve completed killings. Others may involve attempted killings. Others may involve threats, arrests, ill-treatment, or intimidation that do not form part of the confirmed charges. The Court must classify conduct precisely.

This precision is important for both sides. For the prosecution, attempted murder allows accountability where the alleged criminal planned to kill but did not cause death. For the defence, the attempt charge opens specific lines of challenge: Was there a substantial step? Was there an intent to kill? Did the event fail for reasons independent of the alleged perpetrator’s intentions? Was the act connected to the broader attack? These questions cannot be skipped.

4.4 Attack against a civilian population

Article 7 uses the word “attack” in a specialised way. It does not mean an armed attack under the law on the use of force. It does not require military hostilities. Under article 7(2)(a), an attack against a civilian population means a course of conduct involving the multiple commission of acts referred to in article 7(1) against any civilian population, pursuant to or in furtherance of a state or organisational policy (Rome Statute, 1998, art. 7(2)(a)).

The idea of a “course of conduct” is crucial. Crimes against humanity concern collective violence. The attack may be carried out through police operations, paramilitary groups, unofficial squads, detention systems, administrative measures, or other organised practices. What matters is that the acts are not isolated. They form part of a broader campaign against civilians.

The civilian population requirement also matters in the Duterte case. The alleged victims were often described as drug suspects, criminals, or persons with criminal propensities. Those labels do not remove civilian status. A person suspected of a crime remains protected by law. Criminal suspicion does not authorise summary execution. It does not transform a civilian into a lawful target for lethal force outside recognised legal limits.

International criminal tribunals have consistently treated the civilian population as a broad category. The concept does not require every victim to be innocent in a moral or social sense. It asks whether the population targeted was civilian in legal terms. Persons accused of ordinary crime, drug use, or social disorder do not lose civilian protection merely because the state or local actors portray them as dangerous.

The phrase “directed against” also requires attention. It means the civilian population must be the primary object of the attack, not merely incidental victims of unrelated events. In the Duterte case, the prosecution must prove that the alleged killings were directed against a civilian population identified through the anti-drug campaign, rather than being a disconnected set of unlawful police incidents.

A strong article should explain this through a simple distinction. A chaotic rise in homicide does not automatically create an article 7 attack. A series of killings aimed at a defined civilian population, allegedly repeated through official or organised methods, may do so. The difference lies in direction, organisation, repetition, and policy.

4.5 Widespread attack and scale

The Rome Statute requires the attack to be widespread or systematic. These are alternative requirements, although many cases involve both. “Widespread” refers mainly to scale. It may be shown through the number of victims, geographic reach, duration, frequency of acts, and the collective impact on the targeted population (Bassiouni, 2011; Schabas, 2020).

The ICC materials in the Duterte case refer to alleged killings over several years and to thousands of deaths in the wider attack. The confirmed charges are narrower than the total alleged pattern, but the wider context remains important because crimes against humanity require proof that the charged acts formed part of a broader attack (ICC, 2025a; ICC, 2026a).

Scale is not only a mathematical question. Numbers matter, but the law asks what those numbers reveal about the nature of the violence. A high number of killings may show that the violence was not accidental, isolated, or exceptional. Geographic spread may show that the conduct extended beyond one rogue unit or one local event. Duration may show persistence rather than sudden disorder.

In the Philippine context, the alleged period is significant. The ICC materials identify conduct between 1 November 2011 and 16 March 2019. That period covers alleged conduct associated with Davao and later conduct during Duterte’s presidency. If proved, the length of the alleged campaign would support the argument that the attack was widespread because it involved repeated acts over years rather than a single episode.

Social impact should also be considered. A widespread attack may affect not only those killed or injured, but also families, witnesses, neighbourhoods, and communities living under fear of being labelled as criminal threats. In crimes against humanity analysis, this impact may help show the gravity and breadth of the attack, though it cannot replace proof of the required elements.

A careful article should avoid exaggeration. The prosecution does not need to prove every alleged death in the wider drug war to establish the contextual element. Yet it must present enough evidence to show that the confirmed incidents were part of a broader, widespread attack. The Trial Chamber will need to separate reliable evidence, charged incidents, contextual material, and political claims.

4.6 Systematic attack and organisation

“Systematic” refers to the organised nature of the attack. It concerns patterns, planning, regularity, resources, repeated methods, and coordination. A systematic attack does not require a formal written plan, but it requires more than random violence. The acts must display a level of organisation that makes the attack recognisable as a structured course of conduct (Kunarac Appeals Judgment, 2002; Werle and Jeßberger, 2020).

In the Duterte case, systematic character may be argued through repeated operational patterns. These may include common victim profiles, similar methods of killing, recurring narratives used to justify deaths, coordination between law-enforcement actors, alleged use of lists or targeting information, and alleged protection or encouragement of perpetrators. The prosecution will need to show that such patterns were not coincidental.

Common victim profiles are especially relevant. If victims were repeatedly selected because they were suspected drug users, sellers, or alleged criminals, this may support the claim that the attack was directed and organised. The legal issue is not whether the state may investigate drug crime. It plainly may. The issue is whether suspected drug involvement allegedly became a marker for unlawful lethal targeting.

Common perpetrator profiles may also matter. If the alleged acts involved police officers, local enforcement actors, or members of an alleged death squad operating in repeated ways, that may support a systematic character. The Court will need to assess whether these actors were linked by policy, orders, incentives, tolerance, or institutional practice.

Institutional regularity is another indicator. Repeated killings followed by similar official explanations, lack of serious investigation, alleged rewards, public praise, or assurances of protection may support a claim of organisation. Yet the defence may argue that such evidence shows political rhetoric, poor policing, or institutional weakness rather than a criminal attack. The legal issue will be how far the evidence connects repetition to organisation.

The distinction between widespread and systematic should be preserved. A widespread attack may be large in scale. A systematic attack may be organised even if the number of charged incidents is limited. In the Duterte case, the prosecution appears to rely on both scale and organisation. The article should explain both, rather than treating them as one vague requirement.

4.7 State or organisational policy

The policy element is the doctrinal centre of the crimes against humanity analysis. Article 7(2)(a) requires that the attack be committed pursuant to or in furtherance of a state or organisational policy. This requirement prevents crimes against humanity from covering ordinary crime waves, spontaneous mob violence, or disconnected abuses. The attack must be linked to a state or organisation capable of promoting or encouraging the course of conduct.

The Elements of Crimes explain that the policy requirement may be implemented by state or organisational action, and may, in exceptional circumstances, be inferred from a deliberate failure to take action consciously aimed at encouraging the attack (ICC Elements of Crimes, 2011). A written policy is not required. Policy may be proved through conduct, repeated practice, public statements, allocation of resources, operational patterns, or official tolerance.

The Duterte case involves an alleged two-stage policy theory. First, the ICC materials refer to an alleged organisational policy connected to the Davao Death Squad during Duterte’s period in local authority. Second, they refer to an alleged state policy during his presidency, when the anti-drug campaign allegedly expanded nationwide (ICC, 2025a). This two-stage theory allows the prosecution to argue continuity between local and national patterns, but it also creates evidentiary demands.

The organisational-policy stage requires proof that the alleged Davao Death Squad was an organisation for article 7 purposes and that it promoted or encouraged the attack. The article should not assume this point. It should explain what must be shown: structure, membership, capacity to carry out repeated violence, internal coordination, connection to local authority, and alleged targeting practices.

The state-policy stage raises a different issue. State policy does not require proof that every branch of government formally adopted a written plan to kill civilians. It may be inferred from official statements, operational directives, police practices, failure to investigate, rewards, public encouragement, or patterns of tolerance. Yet the prosecution must still show that the attack was pursuant to or in furtherance of state policy, not merely that state agents committed crimes.

This is where public statements may become important. Statements encouraging killing, promising protection to officers, or portraying certain civilians as legitimate objects of lethal violence may support the policy argument. Yet public rhetoric is not automatically policy. The Court must examine whether statements were linked to action, implementation, repetition, and institutional behaviour.

Failure to punish may also be relevant. If repeated killings occur and authorities consistently fail to investigate, prosecute, or discipline perpetrators, that may support an inference of tolerance or encouragement. But failure alone must be handled carefully. Poor governance, corruption, fear, or institutional incapacity may explain weak enforcement without proving a deliberate policy of attack. The factual record will matter.

The defence will likely contest this element heavily. It may be argued that anti-drug policy was a lawful law-enforcement objective, that unlawful killings were unauthorised excesses, that official statements were political rhetoric, and that there was no criminal state policy. For that reason, the policy element should be presented as the central battleground, not as a settled conclusion.

4.8 Nexus between acts and attack

The nexus requirement connects the underlying act to the broader attack. A murder or attempted murder does not become a crime against humanity merely because it occurred during a period of widespread violence. It must be committed as part of the attack. The act must fit within the course of conduct directed against the civilian population.

This requirement disciplines the prosecution's case. It prevents the Court from treating every violent incident in the Philippines during the relevant period as part of crimes against humanity. The prosecution must prove that each charged killing or attempted killing was linked to the alleged attack through circumstances such as victim profile, perpetrator identity, method, location, timing, operational context, or connection to policy.

For example, a killing by a police officer during an unrelated personal dispute would not become a crime against humanity simply because it occurred during the anti-drug campaign. The killing of a person targeted as part of an anti-drug operation, following repeated methods and linked to the alleged policy, may satisfy the nexus requirement if the evidence supports it.

The ICC materials themselves show why this analysis matters. At the warrant stage, the Chamber did not simply accept every allegation in the same way. It focused on murder as the crime for which the article 58 threshold was met, while the Prosecutor’s broader application had included other alleged crimes. This illustrates that each alleged act must be legally connected to the attack and supported by sufficient material (ICC, 2025a).

Nexus also protects the accused’s fair trial rights. It requires specificity. The accused must know which acts are charged, how they allegedly relate to the broader attack, and how his alleged responsibility is connected to them. A trial cannot proceed on the basis of a general allegation that many people died during a government campaign. It must identify charged conduct and prove the legal connection.

The article should make this point clearly. Crimes against humanity are contextual crimes, but context is not a substitute for proof. The prosecution needs both: proof of the broader attack and proof that the charged murders or attempted murders formed part of that attack.

4.9 Knowledge of the broader attack

The mental element for crimes against humanity includes knowledge of the attack. The accused need not know every detail, every victim, every perpetrator, or every incident. Yet he must be aware that his conduct was part of, or intended to be part of, a widespread or systematic attack directed against a civilian population (ICC Elements of Crimes, 2011).

For Duterte, the knowledge issue will likely be one of the most contested parts of the trial. As a former mayor and president, he may be alleged to have known of the broader attack through public reports, official briefings, operational patterns, public controversy, statements by police officials, repeated deaths, domestic and international warnings, and his own public remarks. The prosecution may argue that the scale and visibility of the killings make a lack of awareness implausible.

Public statements may play a major role. If statements appear to encourage killing, promise protection, praise lethal outcomes, or normalise violence against drug suspects, the prosecution may use them to show knowledge and intent. The defence may respond that the statements were political rhetoric, exaggeration, lawful deterrence language, or not causally connected to specific crimes. The Court will need to assess language, context, audience, timing, and implementation.

Operational patterns may also support knowledge. Repeated killings across time and place, similar official explanations, recurring victim profiles, and consistent failure to punish may be used to argue that the accused knew the violence was not isolated. If a leader receives reports of repeated unlawful killings and continues to encourage or protect the same practices, that may support knowledge of the attack.

Rewards or protection of perpetrators may be relevant too. Alleged incentives, promotions, public praise, or assurances against prosecution may show more than awareness. They may support the argument that the accused contributed to the attack. Yet these facts must be proved, not assumed. The Court must distinguish political support for anti-crime operations from criminal support for unlawful killings.

The knowledge element also interacts with article 25 responsibility. Knowledge of the attack is required for the crimes against humanity context. Separate mental elements are required for the mode of liability. A strong legal analysis should not merge these questions. Knowing that an attack exists is not identical to intending specific murders or making an essential contribution to a common criminal plan.

The prosecution’s burden remains high. It must show that Duterte knew of the broader attack and that the charged acts formed part of it. The defence may challenge the reliability of reports, the interpretation of speeches, the existence of central control, and the connection between national rhetoric and local killings. The Trial Chamber’s task will be to decide whether the evidence proves knowledge beyond a reasonable doubt.

The article should close this section with a disciplined conclusion: the crimes against humanity charge depends on structure, not outrage. Murder and attempted murder are the underlying acts. The article 7 framework supplies the international character of the crime. In the Duterte case, the decisive issues will be the existence of an attack against civilians, its widespread or systematic nature, the alleged policy behind it, the connection between the charged incidents and the attack, and Duterte’s knowledge of that broader course of conduct.

5. Individual Criminal Responsibility

5.1 Personal liability under article 25

The ICC prosecutes natural persons, not states. Article 25(1) of the Rome Statute gives the Court jurisdiction over individuals, and article 25(2) provides that a person who commits a crime within the Court’s jurisdiction is individually responsible and liable for punishment (Rome Statute, 1998, art. 25). This is the starting point for analysing Duterte’s alleged responsibility.

The point is basic but important. The case is not a criminal prosecution of the Philippines. It is not a trial of the Philippine police as an institution. It is not a general inquiry into the political morality of the anti-drug campaign. The legal question is narrower: did Duterte personally incur criminal responsibility for crimes within the jurisdiction of the ICC?

This separation avoids a common analytical mistake. A state may incur international responsibility for breaches of human rights law. Police officers may incur domestic criminal liability for unlawful killings. Public officials may bear political responsibility for abusive policy. None of those conclusions automatically proves individual criminal responsibility before the ICC. Each form of responsibility has its own legal test.

State responsibility and individual criminal responsibility may overlap factually, but they remain distinct legal regimes. State responsibility focuses on internationally wrongful acts attributable to the state and the consequences that follow under international law (ILC, 2001). Individual criminal responsibility focuses on the conduct, contribution, mental element, and mode of liability of a natural person. The Duterte case sits in the second category.

This distinction is especially important in leadership cases. A president may be politically responsible for the direction of government policy without being criminally responsible for every act committed by state agents. Conversely, a leader may be criminally responsible even without personally carrying out the physical acts, if the prosecution proves a recognised mode of liability under the Rome Statute. The Court must identify the specific legal route connecting the accused to the crimes.

Article 25 provides several possible routes. A person may commit a crime individually, jointly with another, or through another person. A person may also order, solicit, induce, aid, abet, assist, contribute to a group crime, or attempt to commit a crime (Rome Statute, 1998, art. 25(3)). The legal theory matters because each route requires different proof.

For Duterte, the central issue is not physical perpetration. The alleged case concerns responsibility through structures, policy, authority, encouragement, or participation with others. The prosecution must connect his alleged conduct to specific crimes against humanity. A broad claim that he was president during the killings would not be enough.

5.2 Indirect co-perpetration

The arrest warrant treated Duterte as allegedly responsible as an indirect co-perpetrator under article 25(3)(a) of the Rome Statute (ICC, 2025a). Article 25(3)(a) covers commission of a crime as an individual, jointly with another, or through another person, regardless of whether that other person is criminally responsible (Rome Statute, 1998, art. 25(3)(a)).

Indirect co-perpetration is a leadership-liability theory. It does not require the accused to pull the trigger, enter the crime scene, or personally select every victim. The allegation is that the accused committed crimes through others, or jointly with others, by using organised structures or shared control over the execution of a criminal plan.

ICC case law has often discussed this issue through the idea of control over the crime. In Lubanga, the Trial Chamber treated co-perpetration as requiring an agreement or common plan, an essential contribution by each co-perpetrator, and the necessary intent and knowledge (Prosecutor v Lubanga, 2012). In Katanga and Ngudjolo, the Pre-Trial Chamber developed the idea that a person may commit crimes through an organisation where the structure enables the execution of criminal conduct (Prosecutor v Katanga and Ngudjolo, 2008).

The doctrine is controversial, but it addresses a real evidentiary problem in mass-crime cases. Senior leaders rarely commit crimes with their own hands. They may act through police, military units, party structures, local officials, informal groups, or loyal intermediaries. International criminal law would fail if it could reach only the person who physically killed the victim and never the person who allegedly organised, authorised, or controlled the machinery of violence.

That does not mean leadership status is enough. Indirect co-perpetration must not become guilt by office. The prosecution must prove that Duterte had a legally relevant role in the alleged criminal structure. It must show more than influence, popularity, harsh language, or political dominance. It must show a connection between his conduct and the execution of the charged crimes.

The defence may attack this theory at several points. It may be argued that no organised apparatus of crime existed, that police operations were decentralised, that unlawful killings were unauthorised acts by individual officers, or that Duterte’s statements did not amount to control over implementation. It may also be argued that the alleged direct perpetrators acted for their own reasons rather than as instruments of a common criminal plan.

For that reason, indirect co-perpetration should be presented as a demanding legal theory, not as a shortcut. It allows the Court to examine leadership responsibility, but it also requires proof of structure, contribution, and mental element.

5.3 Common criminal plan

A common criminal plan is central to co-perpetration analysis. The prosecution must prove that the accused and other participants shared a plan involving the commission of crimes within the Court’s jurisdiction. In the Duterte case, that means a plan connected to murder or attempted murder as crimes against humanity, not merely a political plan to reduce drug crime.

This distinction is decisive. A state may adopt aggressive anti-crime policies. It may increase policing, conduct raids, arrest suspects, and prosecute drug offences. Such policies may be lawful if carried out within constitutional and human rights limits. The prosecution must prove something different: that the alleged plan involved unlawful killing or attempted killing as part of an article 7 attack.

Strong rhetoric is not enough by itself. Public anger about crime is not enough. A harsh law-enforcement policy is not enough. The plan must have criminal content. The evidence must connect Duterte, implementing actors, and the charged incidents through a shared design or coordinated course of conduct.

A common plan can be expressed or inferred. It does not need to be written in a formal document. International criminal tribunals have accepted that criminal plans may be inferred from coordinated action, repeated patterns, public and private statements, operational methods, and the behaviour of participants before, during, and after the crimes (Prosecutor v Lubanga, 2012; Prosecutor v Ntaganda, 2019).

In the Duterte case, the prosecution may rely on alleged continuity between Davao and the national campaign, public statements about killing drug suspects, alleged protection of police officers, repeated operational patterns, and the alleged role of state or organisational structures. It may be argued that these facts reveal a common plan behind the charged crimes.

The defence will likely resist that inference. It may be argued that the anti-drug campaign had a lawful objective, that official policy authorised arrest and prosecution rather than killing, and that unlawful deaths were deviations by individual officers. It may also be argued that public statements were exaggerated political speech, not operational instructions.

The Court will need to distinguish between lawful policy, abusive policy, and criminal policy. This is not a semantic issue. The classification determines the legal character of the case. A policy that tolerates excessive force may violate human rights. A policy that encourages or organises murder as part of a civilian attack may support crimes against humanity. The evidence must justify the classification.

A common criminal plan also needs a link to the charged incidents. It is not enough to prove a climate of hostility toward drug suspects. The prosecution must show that the murders and attempted murders before the Court were carried out pursuant to, or in execution of, the alleged plan. Without that link, the plan remains too general to ground individual criminal responsibility.

5.4 Essential contribution to the crimes

Co-perpetration requires more than association with a criminal plan. The accused must make an essential contribution to the commission of the crimes. The concept of essential contribution is designed to separate principal liability from marginal involvement. It asks whether the accused’s role was significant enough to justify treating him as one of those who committed the crime.

In leadership cases, contribution may take several forms. It may include designing policy, directing operations, authorising methods, providing resources, encouraging perpetrators, creating incentives, tolerating unlawful violence, protecting perpetrators after the fact, or maintaining control over structures used to commit crimes. The relevance of each factor depends on proof, context, and the connection to the charged incidents.

Policy direction may be central. If the prosecution proves that Duterte shaped or authorised a policy that encouraged unlawful killing, that may support the contribution requirement. Yet policy direction must be tied to criminal conduct. General anti-drug governance, public security planning, or rhetorical commitment to order cannot automatically become an essential contribution to murder.

Public authorisation may also matter. In a hierarchical or politically charged environment, public statements by a leader may influence police behaviour, local officials, or informal armed actors. Statements may be relevant if they signal approval, encourage lethal methods, or assure protection. Their legal weight depends on context, timing, audience, and the conduct that follows.

Operational influence is another possible contribution. A leader may contribute through appointment power, command channels, coordination with law-enforcement officials, budgetary support, reporting systems, or intervention in investigations. The prosecution must show how such influence affected the charged crimes. Abstract political authority is not enough.

Incentives and rewards may provide stronger evidence when proven. Promotions, financial benefits, praise, or institutional approval for lethal results may encourage repetition. Protection of perpetrators may also contribute by creating confidence that future crimes will go unpunished. In crimes against humanity analysis, impunity can be part of the machinery that sustains the attack.

Tolerance is more difficult. Mere failure to prevent crimes is not always co-perpetration. It may support command responsibility under article 28 if the conditions are met. For article 25, tolerance must be connected to participation in the criminal plan or contribution to its execution. The article must not turn passivity into co-perpetration without explaining the legal bridge.

Control over structures is likely to be a key issue. If the prosecution proves that Duterte could direct or influence the structures through which killings were committed, that would support a principal-liability theory. If the defence shows that the killings were decentralised, unauthorised, or outside his effective control, the article 25 theory becomes harder.

The essential contribution requirement stops the analysis from collapsing into political blame. It demands proof that Duterte’s alleged conduct made a real difference to the commission of the charged crimes. That is a high standard, and it is where the trial may become most fact-intensive.

5.5 Intent and knowledge

The mental element is the second major pillar of individual responsibility. Article 30 of the Rome Statute provides that, unless otherwise provided, a person is criminally responsible only if the material elements are committed with intent and knowledge (Rome Statute, 1998, art. 30). For article 25 liability, the prosecution must prove the relevant mental element attached to Duterte’s alleged contribution and to the charged crimes.

Intent may be direct or may involve awareness that consequences will occur in the ordinary course of events. Knowledge means awareness that a circumstance exists or that a consequence will occur in the ordinary course of events (Rome Statute, 1998, art. 30). In a case concerning crimes against humanity, this mental element interacts with the separate requirement that the accused knew of the broader attack.

The prosecution may rely on patterns and statements. Repeated killings, public warnings, reports by officials, international criticism, speeches, operational consistency, and alleged promises of protection may be used to infer knowledge. If a leader repeatedly refers to killing suspects, praises lethal operations, and continues the same policy after reports of unlawful deaths, those facts may support an inference of intent or knowledge if proved.

Yet inference is not automatic. The defence may argue that Duterte intended lawful crime suppression, not murder. It may be argued that statements were political hyperbole, that police were instructed to act lawfully, that killings occurred during armed resistance or unlawful deviations, and that the accused lacked control over specific operations. It may also challenge witness credibility and the interpretation of public statements.

The defence may also contest decentralisation. If killings were carried out by local actors without central direction, or by officers acting outside orders, the prosecution must still prove the link to Duterte’s alleged plan and contribution. A large number of unlawful acts does not by itself prove that a senior leader intended them.

Reliability of evidence will be decisive. Leadership cases often rely on insider witnesses, public speeches, official records, patterns of conduct, and circumstantial evidence. Each category has strengths and weaknesses. Public statements are visible but may be ambiguous. Insider witnesses may be direct but vulnerable to credibility attacks. Statistical patterns may show scale but not mental state. Official records may show structure, but not always criminal intent.

The Court must avoid two errors. It must not require direct written orders if the evidence otherwise proves intent and knowledge beyond a reasonable doubt. Leaders rarely write criminal plans in explicit terms. It must also not infer criminal intent merely because the policy was brutal, popular, or politically aggressive. Criminal intent must be proved through evidence.

This section should make the mental element concrete. The question is not simply what Duterte said. It is what he allegedly intended, what he knew, what structures he allegedly influenced, how his conduct related to the charged crimes, and whether the evidence proves the required mental state beyond a reasonable doubt.

5.6 Official capacity before the ICC

Article 27 of the Rome Statute removes official capacity as a bar to ICC responsibility. It provides that the Statute applies equally to all persons without distinction based on official capacity. A head of state, head of government, government official, or parliamentarian is not exempt from criminal responsibility under the Statute, and official capacity does not reduce sentence by itself (Rome Statute, 1998, art. 27(1)).

Article 27 also states that immunities or special procedural rules attached to official capacity under national or international law shall not bar the Court from exercising jurisdiction over such a person (Rome Statute, 1998, art. 27(2)). This provision is central to cases involving former or current political leaders. It reflects the Rome Statute’s rejection of office as a shield against prosecution for core international crimes.

For Duterte, his former presidential status does not create immunity before the ICC. His office may be relevant as evidence of authority, influence, access to information, control over state institutions, and capacity to affect policy. Yet that same office does not protect him from prosecution under the Statute.

This distinction must be kept clear. Official capacity is not irrelevant. It may help the prosecution argue that Duterte had the authority to shape policy, influence police conduct, receive reports, and affect accountability. It may also help the defence frame his role as political leadership rather than criminal participation. The legal point is that the office may be evidence, but it is not immunity.

International criminal law has long rejected the idea that official rank alone bars responsibility for international crimes. The Nuremberg Charter denied immunity based on official position, and later statutes and decisions reinforced the principle that leaders may be personally responsible for international crimes (Nuremberg Charter, 1945, art. 7; Prosecutor v Milošević, 2001). The Rome Statute codifies that position for ICC proceedings.

The sovereignty argument should not be confused with immunity. A state may object politically to the prosecution of a former leader. It may argue about jurisdiction, complementarity, cooperation, or withdrawal. But once the Court has jurisdiction under the Statute, article 27 prevents official capacity from serving as a personal bar to responsibility.

This does not predetermine guilt. Article 27 opens the door to prosecution; it does not prove the charges. Duterte’s former office may make the case more significant, but the prosecution must still prove article 7 crimes, article 25 responsibility, and the required mental element. No one is convicted before the ICC merely for having held power.

5.7 Command responsibility as a separate route

Command responsibility under article 28 must be distinguished from co-perpetration under article 25. The doctrines address different forms of responsibility. Article 25 concerns participation in the commission of crimes. Article 28 concerns the responsibility of military commanders and other superiors for failing to prevent or repress crimes by subordinates, or failing to submit the matter for investigation and prosecution, when the legal requirements are met (Rome Statute, 1998, art. 28).

Command responsibility is a form of omission liability. It does not require proof that the superior shared a criminal plan to commit the crimes. It focuses on the superior-subordinate relationship, effective command or authority and control, knowledge or reason to know, and failure to take necessary and reasonable measures. The wrong lies in the culpable failure to control subordinates.

Co-perpetration is different. It treats the accused as a participant in the crime itself. It requires a common plan, essential contribution, and the relevant mental element. The accused is not liable merely because subordinates committed crimes. He is liable because he allegedly helped commit the crimes through joint action or through others.

This distinction matters for the Duterte case. The arrest warrant framed Duterte as allegedly responsible as an indirect co-perpetrator under article 25(3)(a) (ICC, 2025a). That theory is not the same as saying he failed to supervise the police. It alleges a more direct form of participation in the crimes through structures or actors.

Article 28 may still be analytically relevant as a comparison. If evidence shows that a leader knew of crimes by subordinates and failed to prevent or punish them, command or superior responsibility may become a possible route in some cases. But the article must not merge that doctrine with article 25. Failure to punish is not automatically co-perpetration. Participation in a common criminal plan is not merely poor supervision.

The ICC’s Bemba litigation illustrates the importance of article 28’s specific requirements. The case turned on command responsibility, effective control, knowledge, and reasonable measures, not on co-perpetration (Prosecutor v Bemba, 2016; Prosecutor v Bemba, 2018). That jurisprudence shows why the mode of liability must be identified precisely. Different modes require different evidence.

For Duterte, an article 28 theory would require careful proof of effective authority and control over the direct perpetrators, knowledge or reason to know of their crimes, and failure to take necessary and reasonable measures. An article 25 theory requires proof that he participated in the commission of the crimes through a common plan and essential contribution. These are not interchangeable.

A strong academic article should make this doctrinal separation explicit. It should explain that leadership liability is not a single category. International criminal law uses different routes to capture different forms of involvement: ordering, aiding and abetting, co-perpetration, indirect perpetration, contribution to group crime, attempt, and command responsibility. The Duterte case must be analysed through the specific route pleaded and supported by evidence.

The section should close with a disciplined conclusion: Duterte’s responsibility cannot be inferred solely from his office, public reputation, or the scale of the alleged killings. The prosecution must prove a legally recognised mode of liability. If the theory is indirect co-perpetration, it must establish a common criminal plan, an essential contribution, and the required intent and knowledge. If command responsibility is raised, the article 28 test must be applied separately. This precision is what separates international criminal law from political accusation.

6. Trial Procedure and Defence Rights

6.1 Confirmation of charges

The confirmation of charges stage is a screening mechanism. It tests whether the Prosecutor has presented enough evidence for the case to proceed to trial. It does not decide guilt, and it does not authorise the Trial Chamber to treat the accused as convicted. Under article 61 of the Rome Statute, the Pre-Trial Chamber must decide whether there are substantial grounds to believe that the person committed each crime charged (Rome Statute, 1998, art. 61).

This procedural stage is important because ICC cases often involve complex allegations, large bodies of evidence, many victims, and conduct spread across years. Confirmation prevents weak or insufficiently defined cases from moving directly into full trial. It also forces the Prosecutor to identify the charges with enough clarity for the accused to understand the case and prepare a defence.

In the Duterte case, the confirmation hearing took place between 23 and 27 February 2026. The ICC records that the Prosecutor, the Defence, and the Common Legal Representatives of Victims made submissions before Pre-Trial Chamber I. On 23 April 2026, the Chamber confirmed all charges and committed Duterte to trial before a Trial Chamber (ICC, 2026a).

The legal meaning of that decision must be stated with care. The Chamber found that the evidentiary threshold for trial had been met. It did not find Duterte guilty of crimes against humanity. The difference is fundamental. Confirmation concerns sufficiency for trial; conviction requires proof beyond a reasonable doubt after the full trial process.

This distinction protects the integrity of the proceedings. Public debate may treat confirmation as a moral judgment, especially in a case involving a former president and thousands of alleged deaths. The Court cannot proceed that way. Its task is to apply the Rome Statute, identify the confirmed charges, protect the rights of all participants, and preserve the presumption of innocence until judgment.

6.2 Waiver of attendance

The confirmation hearing took place in Duterte’s absence after the Chamber granted his request to waive attendance (ICC, 2026a). Absence from a hearing is not automatically unlawful. The legal issue is whether the waiver was valid, informed, and compatible with the accused’s procedural rights.

The Rome Statute protects the accused’s right to be present at trial, but it also recognises that some procedural steps may occur without physical presence where the legal requirements are satisfied, and the rights of the accused remain protected (Rome Statute, 1998, arts 63 and 67). The key question is not physical absence alone. The key question is whether the accused had a real opportunity to participate through counsel, understand the proceedings, challenge the case, and preserve all available defence arguments.

A valid waiver must not be treated as abandonment of defence rights. If an accused chooses not to attend a particular hearing, counsel must still be able to make submissions, contest evidence, object to procedural defects, and protect the accused’s position. The Chamber must also ensure that the waiver does not become a device that later undermines the fairness of the proceedings.

The issue is especially sensitive in high-profile international criminal cases. An accused may waive presence for health, strategy, dignity, security, political protest, or personal reasons. The Court’s role is not to speculate about motives unless they affect fairness. Its role is to verify that the waiver is legally sound and that proceedings remain fair.

For the article, the correct point is narrow: Duterte’s absence at the confirmation hearing does not itself invalidate the process, because the Chamber granted his request to waive attendance. The relevant legal question is whether the waiver preserved his right to defend himself effectively. That analysis belongs to fair trial law, not political commentary.

6.3 Fitness to take part in proceedings

Fitness to take part in proceedings concerns the accused’s capacity to understand the case, communicate with counsel, make informed decisions, and exercise procedural rights. It is not a medical question in isolation. It is a legal question informed by medical evidence and by the demands of the specific proceedings.

The Defence sought an indefinite adjournment on the basis that Duterte was allegedly not fit to stand trial. The ICC case materials record that Pre-Trial Chamber I rejected that request and found him fit to take part in pre-trial proceedings after considering a medical assessment by three independent medical experts and the relevant circumstances of the case (ICC, 2026b).

This issue matters because a criminal trial cannot be legitimate if the accused is incapable of meaningful participation. The right to counsel is not enough if the accused cannot understand the charges or instruct the defence. Fitness protects the dignity of the accused and the reliability of the process.

At the same time, claims of unfitness must be assessed carefully. International criminal cases often involve elderly accused persons, complex medical evidence, and proceedings that may last years. A diagnosis, advanced age, or poor health does not automatically make a person unfit. The legal inquiry is functional: can the accused participate effectively enough for the proceedings to remain fair?

The Chamber’s finding at the pre-trial stage does not prevent future reassessment if circumstances change. Fitness is not frozen forever. If health, cognition, or ability to participate deteriorates during the trial, the Defence may raise the issue again, and the Trial Chamber would need to examine the evidence in light of the accused’s current condition.

For the article, the fitness issue should be treated as part of due process, not as a distraction. It shows that accountability before the ICC is not only about bringing powerful figures to court. It also requires that proceedings be conducted against a person capable of defending himself.

6.4 Burden of proof at trial

At trial, the burden rests on the Prosecutor. Article 66 of the Rome Statute provides that everyone is presumed innocent until proved guilty before the Court, and that the Prosecutor must prove guilt beyond a reasonable doubt (Rome Statute, 1998, art. 66). This is the standard that will govern any conviction.

The practical consequence is clear. The Prosecutor must prove every element of the charged crimes and every element of the alleged mode of liability. It is not enough to show that many people were killed during the anti-drug campaign. It is not enough to show that Duterte used violent language. It is not enough to show that victims’ families suffered grave harm. Those facts may be relevant, but they do not replace proof of murder or attempted murder as crimes against humanity and proof of Duterte’s individual responsibility.

Statistics may help establish scale or context. Human rights reports may help identify patterns. Public speeches may help prove knowledge, intent, or policy. Victim testimony may help establish specific incidents and harm. Insider witnesses may help connect conduct to structures of authority. Each type of evidence has value, but each must be tested.

The defence is entitled to challenge reliability, relevance, credibility, interpretation, and legal sufficiency. It may contest causation, identity, linkage to the broader attack, the existence of a policy, the mental element, or the alleged mode of liability. A fair trial requires that these challenges be heard seriously, even where the allegations are grave.

The standard of proof is also important for public understanding. International criminal trials are not designed to validate every victim account or resolve every historical dispute. They determine criminal responsibility for confirmed charges. Some facts may be morally important but legally unproven. Some patterns may be disturbing but insufficient for conviction. The Trial Chamber must decide the case on evidence and law, not public pressure.

6.5 Rights of the accused

The rights of the accused are central to the legitimacy of the ICC. Article 67 of the Rome Statute guarantees minimum fair trial rights, including the right to be informed promptly and in detail of the charges, the right to adequate time and facilities to prepare a defence, the right to counsel, the right to interpretation, the right to examine witnesses, and the right not to be compelled to testify or confess guilt (Rome Statute, 1998, art. 67).

These guarantees are not procedural decoration. They are the conditions under which an international criminal judgment can command legal authority. A conviction for crimes against humanity will carry exceptional stigma and punishment. That outcome is legitimate only if the accused had a real opportunity to defend himself.

Notice of charges is the first requirement. The accused must know the legal and factual basis of the case. Vague allegations of responsibility for the drug war would be insufficient. The charges must identify the crimes, the incidents, the alleged mode of liability, and the connection between Duterte’s conduct and the charged acts.

Adequate time and facilities are also essential. ICC cases generate large volumes of evidence, including witness statements, expert reports, public records, videos, communications, forensic material, and open-source evidence. The Defence must have enough time and access to review the material, investigate alternatives, prepare cross-examination, and develop legal arguments.

The right to counsel ensures that the accused can participate through professional legal representation. This is especially important in proceedings involving complex doctrines such as crimes against humanity, complementarity, indirect co-perpetration, and command responsibility. Effective defence requires more than the formal appointment of counsel. It requires meaningful ability to act.

The right to examine witnesses is one of the most important safeguards. If the prosecution relies on victims, insiders, police witnesses, experts, or investigators, the Defence must be able to test their accounts. Cross-examination is not hostility toward victims. It is a basic method for assessing truth, reliability, memory, bias, and consistency.

Silence and protection against self-incrimination must also be preserved. Duterte cannot be required to prove his innocence. The Prosecutor bears the burden throughout the trial. Any public expectation that the accused must explain every death would invert the Rome Statute’s presumption of innocence.

6.6 Participation of victims

Victim participation is one of the distinctive features of the ICC. Article 68(3) allows victims to present their views and concerns where their personal interests are affected, provided this is done in a manner that is not prejudicial to or inconsistent with the rights of the accused and a fair and impartial trial (Rome Statute, 1998, art. 68(3)).

This framework gives victims a procedural voice without making them parties in the same position as the Prosecutor or the Defence. Victims may participate through legal representatives. They may make submissions on issues affecting their interests, seek recognition of harm, and contribute to the Court’s understanding of the impact of the alleged crimes. Their role is meaningful, but it remains controlled by the Chamber.

In the Duterte case, victim participation is legally and symbolically significant. Alleged drug-war killings affected families, communities, and persons who may have long lacked effective domestic remedies. Participation may help ensure that the proceedings do not become a purely institutional contest between the Prosecutor and the accused.

Yet victim participation must remain compatible with defence rights. The accused cannot face an unlimited number of unstructured accusations. The Chamber must regulate participation, avoid duplication, protect confidential information, and ensure that victim submissions do not prejudice the fairness of the trial.

This balance is difficult but necessary. Excluding victims entirely would weaken the ICC’s claim to deliver justice for affected communities. Allowing victim participation to overwhelm the Defence would weaken the accused’s fair trial rights. The Rome Statute attempts to hold both principles together.

Victim participation should also be distinguished from reparations. Participation during the trial concerns views and concerns linked to the proceedings. Reparations become relevant only after conviction, if guilt is established. The article should not imply that victim participation presupposes Duterte’s guilt.

6.7 Protection of witnesses

Witness protection is a structural issue in cases involving alleged state-linked violence. Witnesses may include victims’ relatives, former police officers, insiders, local officials, journalists, investigators, or community members. Some may fear retaliation. Some may suffer trauma. Some may face political pressure, social stigma, or threats to family members.

Article 68 requires the Court to take appropriate measures to protect the safety, physical and psychological well-being, dignity, and privacy of victims and witnesses, especially where crimes involve violence, trauma, or vulnerable persons (Rome Statute, 1998, art. 68). Protective measures may include redactions, delayed disclosure, pseudonyms, image or voice distortion, closed sessions, relocation, and limits on public identification.

Protection, however, creates tension with defence rights. The Defence must know enough about the evidence to challenge it. Excessive anonymity or late disclosure can impair cross-examination, investigation, and preparation. A trial cannot be fair if the accused is convicted on evidence he could not meaningfully test.

The Chamber must manage this tension case by case. It must protect witnesses without converting protective measures into secrecy that damages the Defence. The legal question is proportionality: what measure is necessary to protect the witness, and how can the Defence still test the evidence?

Trauma also affects testimony. Victims and witnesses may struggle with memory, dates, sequence, fear, grief, or shame. Trauma does not make testimony unreliable by itself. It also does not make testimony immune from challenge. The Court must assess evidence with sensitivity and discipline.

Relocation and protective support may be especially important where alleged perpetrators or sympathisers retain influence. Witnesses may fear local retaliation even while the accused is in ICC custody. Protection must address real-world risks, not only courtroom exposure.

This issue shows why ICC trials are procedurally complex. The Court must protect vulnerable participants, preserve the rights of the accused, maintain public justice, and reach findings based on tested evidence. In the Duterte case, witness protection may become one of the practical conditions for determining what the Trial Chamber can safely and fairly hear.

Also read

• Crimes Against Humanity in Contemporary International Law

• Difference between ICJ and ICC: Jurisdiction, Power, and Limits

• The Evolution of Universal Jurisdiction in Human Rights Enforcement

• Arrest Warrant Case Democratic Republic of the Congo v Belgium

• Nuremberg Trials Analysis

• Human Rights Violations in Venezuela: Legal Analysis

• Darfur Genocide

• International Responsibility in Public International Law

7. Accountability and Legal Consequences

7.1 Domestic policing and international crime

The Duterte case raises a hard doctrinal question: when does abusive law enforcement become an international crime? International law does not treat every unlawful police killing as a crime against humanity. Many police abuses remain matters for domestic criminal law, constitutional law, administrative discipline, and human rights remedies. The threshold changes when killings are no longer isolated abuses and become part of a broader attack against civilians under article 7 of the Rome Statute.

The starting point is that states have the authority to enforce criminal law. They may investigate drug trafficking, arrest suspects, prosecute offenders, and use force where strictly necessary and proportionate. International human rights law does not prevent policing. It regulates it. The International Covenant on Civil and Political Rights protects the right to life and prohibits arbitrary deprivation of life, while the UN Basic Principles on the Use of Force and Firearms require law-enforcement officials to use lethal force only when strictly unavoidable to protect life (ICCPR, 1966, art. 6; UN Basic Principles, 1990).

The legal problem arises when policing is allegedly transformed into a pattern of lethal targeting. If suspected drug users, alleged dealers, or persons labelled as criminals are repeatedly killed without trial, the issue is no longer only excessive force in individual incidents. The analysis turns to scale, repetition, method, policy, and the role of state or organised structures. That is the point at which the law of crimes against humanity becomes relevant.

Article 7 of the Rome Statute supplies the legal boundary. The prosecution must prove that murders or attempted murders formed part of a widespread or systematic attack directed against a civilian population, pursuant to or in furtherance of a state or organisational policy, with knowledge of the attack (Rome Statute, 1998, art. 7). This threshold is demanding. It prevents the Court from treating ordinary criminality, even serious criminality, as international crime without proof of the broader contextual elements.

The Duterte ICC Trial is significant because the alleged attack was framed domestically as crime control. That makes the case different from many traditional crimes against humanity prosecutions involving armed groups, ethnic cleansing, detention camps, or military campaigns. Here, the alleged machinery of violence is said to have operated through law-enforcement language, public security institutions, local networks, and anti-drug policy.

This does not make the case weaker as a matter of law. Crimes against humanity can occur outside armed conflict. They can be committed by state agents against their own population. They can be carried out through ordinary administrative or security structures. The legal question is not the label attached by the state to the campaign. The legal question is the actual pattern of conduct and its connection to an article 7 attack.

A useful example is the difference between a police officer unlawfully killing a suspect during one operation and a repeated practice in which suspected offenders are selected, killed, and the killings are publicly encouraged or tolerated. The first may be domestic murder and a human rights violation. The second may become part of crimes against humanity if the contextual elements are proved. The difference lies in organisation, repetition, policy, and linkage to a broader attack.

This is why the article must avoid vague language such as “the drug war was a crime against humanity” unless each legal element is addressed. The correct formulation is narrower: selected murders and attempted murders may qualify as crimes against humanity if they were committed as part of a widespread or systematic attack against civilians and if Duterte’s personal responsibility is proved under the Rome Statute.

7.2 Sovereignty and criminal accountability

Sovereignty does not automatically shield alleged crimes against humanity. Modern international criminal law rests on the premise that certain crimes concern the international community because they attack fundamental human interests and cannot be treated as purely internal matters. At the same time, the ICC system does not erase sovereignty. It channels sovereignty through treaty consent, complementarity, cooperation, and procedural safeguards.

The Philippines accepted the Rome Statute before the relevant alleged conduct. That acceptance created a legal framework under which the ICC could exercise jurisdiction over crimes committed on Philippine territory while the treaty applied. The later withdrawal is legally relevant, but it does not retroactively cancel jurisdiction over alleged crimes committed during membership (Rome Statute, 1998, art. 127; ICC, 2025a).

The stronger analysis is that sovereignty gives the state the first duty to investigate and prosecute. This is the logic of complementarity. The ICC is not meant to displace national courts where genuine domestic proceedings exist. If the Philippines had genuinely investigated or prosecuted the same person for substantially the same conduct, the case could face admissibility barriers under article 17 (Rome Statute, 1998, art. 17).

Sovereignty fails as a shield only when it is used to protect impunity rather than to deliver justice. A state cannot invoke sovereignty while avoiding a genuine investigation of alleged crimes within ICC jurisdiction. Complementarity protects national jurisdiction, but it also tests its substance. The issue is not pride, status, or political independence. The issue is genuine accountability.

This distinction is important because sovereignty arguments often merge legal and political claims. A political objection may argue that the ICC is intrusive, selective, or insensitive to domestic realities. A legal objection must show why the Court lacks jurisdiction, why the case is inadmissible, or why the evidence fails. Only the latter questions decide the case.

The Duterte case sits inside this tension. On one side, the Philippines has an interest in controlling its criminal justice system and addressing domestic crime. On the other side, the Rome Statute allows international jurisdiction where alleged crimes against humanity fall within the Court’s mandate and genuine national proceedings are absent. The conflict is not between sovereignty and law. It is between different legal consequences of sovereignty: accession, withdrawal, complementarity, and cooperation.

This point also clarifies the role of domestic institutions. If Philippine courts, prosecutors, and investigative bodies genuinely address the alleged crimes, they reinforce sovereignty. If they avoid the central allegations, international proceedings become more legally plausible. Sovereignty is strongest when it is exercised through credible justice, not when it is used as a wall against scrutiny.

7.3 Selectivity and institutional legitimacy

Criticism of ICC selectivity deserves serious treatment. The Court has long faced claims that it acts unevenly, depends too heavily on state cooperation, and has been stronger against some states than others. Scholars have debated the Court’s legitimacy, especially where prosecutions appear shaped by political feasibility rather than a consistent global enforcement pattern (Schabas, 2020; Cryer et al., 2019).

This criticism cannot be dismissed as propaganda. International criminal justice operates in a political world. Arrests depend on the states. Evidence often depends on cooperation. Powerful states may avoid accountability more easily than weaker states. The ICC has limited resources and cannot pursue every situation involving serious international crimes. These realities affect the perception of legitimacy.

Yet selectivity is not usually a complete legal defence. An accused cannot defeat jurisdiction merely by arguing that others elsewhere have not been prosecuted. Uneven enforcement may damage the Court’s authority, but it does not automatically remove jurisdiction over a case that satisfies the Rome Statute. The Court must still apply the legal tests for jurisdiction, admissibility, elements of crimes, and individual responsibility.

The difference between legitimacy critique and legal defence must remain clear. A legitimacy critique asks whether the institution acts consistently, fairly, and credibly. A legal defence asks whether the Court has authority over this accused, this conduct, and these charges. Both questions matter, but they operate at different levels.

In the Duterte case, selectivity arguments may shape public debate. Supporters may view the proceedings as long-delayed accountability for alleged mass killing. Critics may argue that the Court pursues politically available defendants while other grave situations remain unaddressed. The article should address both views, but it must not allow them to replace legal analysis.

The correct approach is disciplined separation. Jurisdiction depends on treaty consent, territory, time, and subject matter. Admissibility depends on complementarity and gravity. Guilt depends on proof beyond a reasonable doubt. Selectivity may affect confidence in the ICC, but it does not decide those legal questions.

That said, legitimacy has practical legal consequences. A court perceived as selective may face lower cooperation, weaker compliance, and greater resistance. This matters because the ICC relies on states to arrest suspects, protect witnesses, produce evidence, and enforce sentences. Institutional legitimacy is not only reputational. It affects operational capacity.

For that reason, the Trial Chamber must be especially careful in a high-profile case involving a former head of government. The Court’s legitimacy will not be strengthened by broad moral statements alone. It will be strengthened by precision: clear charges, reasoned evidentiary findings, careful treatment of defence rights, and transparent application of the Rome Statute.

7.4 Cooperation and enforcement limits

The ICC has legal authority, but it does not have a global police force. Its operational power depends heavily on state cooperation. This is one of the central limits of the Rome Statute system. The Court may issue warrants, summon evidence, authorise protective measures, and deliver judgments, but it relies on states to make many of those decisions effective.

Cooperation is built into Part 9 of the Rome Statute. States Parties must cooperate fully with the Court in investigations and prosecutions, including arrest, surrender, evidence gathering, witness protection, searches, seizures, and other forms of assistance (Rome Statute, 1998, arts 86–102). Without that cooperation, the Court’s authority may remain formal rather than practical.

The Duterte case illustrates both the reach and the fragility of the ICC system. Duterte surrendered to the Court after being arrested by Philippine authorities pursuant to the ICC warrant (ICC, 2025a). That transfer made the proceedings operational. Without state action, the warrant could have remained unenforced, as has happened in other ICC cases.

The same dependence continues after surrender. The Court may need official records, police documents, communications, chain-of-command material, witness access, protection measures, and domestic investigative files. Some evidence may be located in the Philippines. Some witnesses may remain vulnerable. Some institutions may be cooperative, while others may resist.

This creates a practical asymmetry. The ICC can prosecute individuals, but it cannot by itself reconstruct a national factual record. It must work through states, international organisations, civil society evidence, expert analysis, open-source material, and witness testimony. Each source has limits. Official records may be incomplete. Witnesses may fear retaliation. Public statements may be contested. Open-source material may require authentication.

Enforcement limits also affect the meaning of accountability. A conviction, if it occurs, may punish an individual and establish judicial findings. It may not secure every document, identify every perpetrator, or produce full institutional reform. An acquittal, if it occurs, would not necessarily prove that no abuses occurred. It would mean that the prosecution failed to prove the accused’s criminal responsibility under the Rome Statute.

The Court’s dependence on cooperation also exposes it to political change. A government willing to cooperate today may be replaced by one that resists. Domestic politics may affect witness availability, access to records, and the safety of participants. This fragility is part of the ICC’s institutional design.

For legal analysis, the point is not that the ICC is powerless. The Court has real authority where jurisdiction, admissibility, custody, and evidence align. The point is that its authority is mediated through states. International criminal justice remains partly dependent on the same political structures it may need to scrutinise.

7.5 Domestic justice after international trial

The ICC cannot do everything that accountability requires. Even a legally sound international trial cannot rebuild police institutions, compensate all victims, create a full national historical record, prosecute every perpetrator, or guarantee non-repetition. Its mandate is narrower: to determine individual criminal responsibility for specific charges within its jurisdiction.

This limit is not a defect in itself. Criminal trials are designed to decide guilt or innocence. They are not complete tools of social repair. They work through charges, evidence, admissibility rules, witness testimony, legal elements, and judgments. Many harms caused by alleged mass violence exceed what a criminal judgment can address.

Domestic justice remains essential. Philippine institutions may need to investigate direct perpetrators, commanders, local officials, police units, informants, and political actors beyond the ICC case. The ICC may focus on a senior accused and selected incidents. Domestic authorities can address wider patterns, ordinary crimes, administrative responsibility, institutional failures, and reparations.

Reparations also require domestic capacity. The ICC has a reparations system, but it is limited and normally follows conviction (Rome Statute, 1998, art. 75). It cannot compensate every person affected by a national campaign of violence. Domestic reparations programmes, victim registries, psychosocial support, public apologies, and community-based assistance may be necessary if the state chooses to pursue broader repair.

Truth-seeking is another gap. A criminal trial may produce factual findings, but only for issues needed to decide the charges. It may exclude facts that are historically important but legally irrelevant or unproven. A national truth process, legislative inquiry, archive project, or independent commission may be better suited to documenting the full scale of harm, institutional responsibility, and social impact.

Police reform is also beyond the ICC’s direct reach. If the alleged crimes arose through law-enforcement structures, prevention requires domestic reform: rules on use of force, independent investigations of deaths in custody or police operations, witness protection, prosecutorial independence, command accountability, data transparency, and training grounded in human rights law. The Minnesota Protocol provides guidance on effective investigation of potentially unlawful death, including independence, promptness, transparency, and victim-family participation (Minnesota Protocol, 2016).

Domestic prosecutions also remain necessary because international courts prosecute only a small number of accused persons. If many direct perpetrators or mid-level officials were involved, the ICC cannot try them all. National systems must handle the broader accountability burden. International prosecution may set a legal marker, but domestic justice determines whether accountability reaches beyond one symbolic case.

This means the Duterte case should not be oversold. It may be historically significant. It may clarify legal doctrine. It may provide a forum for selected victims. It may test responsibility at the highest political level. Yet it cannot replace a domestic accountability system capable of investigating, prosecuting, repairing, and reforming.

A credible article should make this limitation explicit. The ICC may answer one criminal-law question: has the Prosecutor proved the charged crimes and Duterte’s responsibility beyond a reasonable doubt? The larger question of national repair belongs mainly to Philippine institutions and society.

7.6 The boundary tested by the case

The central boundary tested by the Duterte case is the line between domestic law enforcement and crimes against humanity. International criminal law does not criminalise every failed, abusive, or violent security policy at the ICC level. It intervenes where the evidence proves the legal architecture of article 7 and the accused’s responsibility under the Statute.

The prosecution must prove that murders and attempted murders were not merely isolated, unlawful acts. It must prove that they formed part of a widespread or systematic attack directed against a civilian population. It must prove the state or organisational policy behind that attack. It must prove the connection between charged incidents and the broader course of conduct. It must prove Duterte’s knowledge and his individual criminal responsibility.

The defence has clear legal routes. It may contest jurisdiction, admissibility, the existence of an article 7 attack, the policy element, the link between charged incidents and the attack, witness credibility, the interpretation of statements, the existence of a common criminal plan, essential contribution, intent, and knowledge. The seriousness of the allegations does not reduce the prosecution’s burden.

This is why the case is legally important regardless of its outcome. A conviction would reinforce the principle that domestic security policy can become international criminal conduct when it is allegedly implemented through organised or policy-linked killing of civilians. An acquittal would not necessarily vindicate the drug war as lawful; it would show that the specific charges or mode of liability were not proved beyond a reasonable doubt.

The case also tests the ICC’s ability to handle politically charged law-enforcement violence without collapsing into politics. The Court must avoid treating the trial as a referendum on Duterte’s presidency. It must also avoid treating anti-drug policy as a shield against scrutiny. The correct legal inquiry is narrower and more demanding: article 7 crimes, article 25 responsibility, fair trial guarantees, and proof.

The broader consequence is doctrinal. If the Court clarifies how crimes against humanity apply to alleged police-linked killing campaigns outside armed conflict, the case may influence future analysis of state violence framed as crime control. That influence will depend on the quality of the Court’s reasoning, not on the political profile of the accused.

The article should end on this point: the Duterte case is not important because conviction is certain. It is important because it forces the Rome Statute system to confront a difficult legal boundary. The Court must decide if an alleged anti-drug campaign implemented through state or organisational structures crossed into crimes against humanity, and if that alleged attack can be attributed to Duterte personally through a recognised mode of liability. That is the legal heart of accountability in this case.

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28. United Nations (1990) Basic Principles on the Use of Force and Firearms by Law Enforcement Officials [online]. Available at: https://www.ohchr.org/en/instruments-mechanisms/instruments/basic-principles-use-force-and-firearms-law-enforcement (Accessed: 20 April 2026).

29. United Nations Office of the High Commissioner for Human Rights (2017) The Minnesota Protocol on the Investigation of Potentially Unlawful Death (2016): The Revised United Nations Manual on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions [online]. Available at: https://www.ohchr.org/sites/default/files/Documents/Publications/MinnesotaProtocol.pdf (Accessed: 20 April 2026).

30. Vienna Convention on the Law of Treaties (1969) Adopted 23 May 1969, entered into force 27 January 1980, 1155 UNTS 331.

31. Werle, G. and Jeßberger, F. (2020) Principles of International Criminal Law. 4th edn. Oxford: Oxford University Press.