'State inaction led to ICC involvement'

THE International Criminal Court (ICC) acted as a necessary complement to the Philippines' justice system due to the absence of credible domestic investigations into the thousands of killings committed during former president Rodrigo Duterte's bloody war on drugs, a Filipino human rights lawyer accredited by the ICC said. Amid heated public debate surrounding the ICC's arrest of Duterte, one key aspect of international legal procedure has been largely overlooked: the doctrine of inaction, lawyer Gilbert Andres said. Andres described this as a frequently misunderstood but fundamental principle that underpins the court's authority to intervene — contrary to the argument that the Philippines has a "functioning judicial system" and lacks civil unrest. "What's lost in the discourse," Andres said, "is that the ICC's first concern is whether there have been any real investigations or prosecutions for international crimes committed within the state's territory." He said this preliminary question comes before any assessment of whether a country is "unwilling or unable" to prosecute such crimes — a standard laid out in Article 17 of the Rome Statute. Rather than immediately analyzing a state's judicial capacity or intent, Andres said the ICC applies what is known as the inaction doctrine, firmly established in the Appeals Chamber decision in Prosecutor v. Germain Katanga, a landmark case concerning crimes in the Democratic Republic of the Congo. Under this doctrine, the Court's threshold question is straightforward: Has the state undertaken any genuine investigations or prosecutions related to the alleged international crimes? "In the case of the Philippines, the answer is a resounding no," Andres said. "There have been no investigations, no charges filed for crimes against humanity or for murder against Mr. Rodrigo Duterte," he said, referring to the widespread extrajudicial killings linked to the former president's anti-drug campaign. This lack of state action is legally consequential. Andres said that since the Philippines has failed to exercise its primary responsibility to investigate and prosecute, the ICC's intervention becomes not only justified but essential — stepping in to fill what would otherwise be a dangerous impunity gap. He emphasized that the ICC's principle of complementarity — often misrepresented in public discourse as an infringement on national sovereignty — is actually a safeguard against impunity. It ensures that international crimes do not go unpunished when national systems fail or refuse to act. "If the state is not actually investigating or prosecuting, then the ICC will enter into the picture," Andres said. "And that's exactly what has happened with the Philippines." His remarks directly counter the common claim that the country's democratic institutions and regular elections are enough to reject ICC involvement. A functioning democracy is not equivalent to a functioning judicial response to crimes against humanity, Andres said. He stressed that the ICC's work is not about singling out nations or leaders arbitrarily. It is about upholding a universal standard of justice — one that holds all states accountable when their own institutions fail to do so. Oral arguments Meanwhile, the family of the former president has asked the Supreme Court to hold oral arguments on petitions challenging his arrest and transfer to the ICC, citing constitutional violations and novel legal questions requiring judicial clarification. In a 14-page motion, Veronica Duterte through the Panelo Law Office, argued that the case presents "exigent constitutional issues" under Article III of the 1987 Constitution, particularly regarding due process and protection against unlawful arrests. The motion emphasizes that respondents allegedly violated these rights by arresting and transferring Duterte to The Hague without prior authorization from a Philippine court. The filing highlighted several unprecedented legal questions, including whether government officials can circumvent judicial review by transferring detainees outside Philippine territory, thereby potentially nullifying the Court's habeas corpus powers. The consolidated petition before the Supreme Court names several key government officials as respondents in the habeas corpus case: Executive Secretary Lucas Bersamin, Justice Secretary Jesus Crispin Remulla, Interior Secretary Jonvic Remulla, and Philippine National Police chief Gen. Rommel Marbil. The petitioners say the respondents executed the arrest of the former president without obtaining proper judicial warrants, facilitating his transfer to ICC custody in The Hague, and potentially violating constitutional protections against unlawful detention.