In the high-stakes world of international justice, few cases have sparked as much debate as the arrest and ongoing ICC proceedings against former Philippine President Rodrigo Duterte. Charged with murder as a crime against humanity tied to his controversial "war on drugs," Duterte's March 2025 apprehension by Philippine authorities and swift transfer to The Hague has ignited fierce arguments over legality, sovereignty, and accountability. At the heart of this storm is his lead counsel, British-Israeli barrister Nicholas Kaufman, whose pleas highlight procedural flaws—yet fail to derail the case under the enduring doctrine of "mala captus bene detentus." Duterte's custody holds firm despite the defense's best efforts.
The Arrest: A Swift Handover Under Philippine Law
Duterte's arrest on March 11, 2025, unfolded with military precision. Philippine National Police, acting on an ICC warrant issued just days earlier for alleged systematic killings between 2011 and 2019, took him into custody at the Manila International Airport. In the evening, he was en route to the International Criminal Court (ICC) in The Hague. This wasn't a covert operation but a state-sanctioned surrender, defended by President Ferdinand Marcos Jr.'s administration as fulfilling obligations under Republic Act No. 9851—the Philippine Act on Crimes Against International Humanitarian Law, Genocide, and Other Crimes Against Humanity.
RA 9851 explicitly criminalizes acts like murder when part of a widespread or systematic attack on civilians—precisely the charges against Duterte. Section 17 empowers authorities to cooperate with international tribunals, including surrendering suspects. Penalties are severe: reclusion perpetua (life imprisonment) plus hefty fines. Despite the Philippines' 2019 withdrawal from the Rome Statute, this domestic law stands independent, obligating cooperation for pre-withdrawal crimes. Critics, including Duterte's team, cry foul over skipped local judicial review—no probable cause hearing before a Philippine judge, as mandated by Article III, Section 2 of the Constitution. Retired Supreme Court Justice Adolfo Azcuna called it "extrajudicial rendition." Yet, the Supreme Court is reviewing this separately, without halting ICC momentum.
Enter Nicholas Kaufman: The Defense's Zealous Advocate
Leading Duterte's defense is Nicholas Kaufman, a seasoned barrister with a track record at the ICC defending figures like Jean-Pierre Bemba and Saif al-Islam Gaddafi. A British-Israeli dual national with Israeli Defense Forces service, Kaufman's February 23, 2026, opening statement during the Confirmation of Charges hearing didn't shy from the arrest issue. He accused Marcos of breaking promises, labeled the charges "politically motivated," and reiterated constitutional violations. One might raise an eyebrow at a lawyer of Jewish heritage invoking unlawful arrest—echoing Adolf Eichmann's 1960 abduction from Argentina. But hypocrisy misses the mark. Lawyers swear to defend clients vigorously. Kaufman's role is procedural jujitsu: contest everything to buy time, appeal, or secure release on health grounds (Duterte's claimed cognitive decline).
Kaufman's persistence shines in repeated bids—jurisdiction challenges rejected in October 2025, release appeals denied in November. He weaves arrest flaws into broader narratives of bias, even as the ICC's Pre-Trial Chamber I presses on with four days of hearings assessing evidence for trial.
"Mala Captus Bene Detentus": The Doctrine That Trumps Irregular Captures
Why do Kaufman's pleas fall flat? Enter "mala captus bene detentus"—Latin for "badly captured, well detained." This principle posits that courts retain jurisdiction over suspects nabbed irregularly if subsequent detention and trial are fair. It prioritizes justice for heinous crimes over how the accused arrived in custody. The ICC embodies this: prior rulings dismissed Duterte's challenges, affirming that Philippine procedural hiccups don't void The Hague's authority.
The doctrine's roots trace to 17th-century English common law but exploded in international fame with Eichmann. In 1960, Israeli agents kidnapped the Nazi architect of the Holocaust's logistics from Buenos Aires, smuggling him to Jerusalem. Argentina protested sovereignty breaches; the UN Security Council rebuked Israel. Yet Israel's Supreme Court, in a landmark 1962 ruling , upheld jurisdiction. "If the abductor was a state organ, this does not affect the jurisdiction," it declared, balancing public interest against flaws. Eichmann hanged in 1962.
Precedents abound. The U.S. Supreme Court in United States v. Alvarez-Machain greenlit prosecuting a Mexican drug lord abducted by DEA-linked mercenaries—no extradition treaty violated the trial. The ICJ's 1998 Nicaragua v. USA nod to the doctrine for grave offenses reinforced it. Critics decry it eroding due process and encouraging rogue ops; supporters argue it's essential for impunity's worst perpetrators—genocidaires, war criminals—when extradition fails.
In Duterte's case, the parallel is imperfect but instructive. Eichmann's was brazen state piracy; Duterte's, official handover. Both defenses screamed illegality, both courts shrugged under the doctrine. Kaufman's Eichmann nod underscores irony, but Israeli law itself pioneered the tolerance.
Complementarity: Why the ICC Stepped In
The Philippines' ICC saga hinges on complementarity—Article 17 of the Rome Statute. The Court intervenes only if states are unwilling or unable. Post-Duterte's 2016-2022 drug war (over 6,000 official deaths, thousands more alleged), local probes fizzled. The Department of Justice dismissed cases; no high-level charges stuck. ICC authorization in 2023 deemed this inadequate. Withdrawal preserved jurisdiction for ongoing investigations.
RA 9851 underscores this: Philippine courts could prosecute domestically, but inaction invited ICC scrutiny. Neutrality favors The Hague—diverse judges, victim voices, transparency—over Manila's polarized arena.
Broader Implications: Sovereignty vs. Accountability
Kaufman's strategy—delay, appeal, politicize—serves multiple ends. It builds an Appeals Chamber record, pressures Marcos domestically, and rallies Duterte's base framing ICC as Western meddling. Philippine Senate inquiries and Supreme Court petitions amplify this, but RA 9851's Section 17 ties executive hands for cooperation.
Yet "mala captus" endures because stakes are existential. Duterte faces life for alleged 12,000-30,000 extrajudicial killings. Victims' families, via ICC participation, demand reckoning. If procedural purity trumps this, impunity reigns.
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