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The Framework of Criminal Liability in the ICC Prosecution of Rodrigo Duterte (February 2026 Filing)
- The February 2026 Procedural Milestone
On February 13, 2026, Pre-Trial Chamber I of the International Criminal Court (ICC) issued a lesser-redacted "Document Containing the Charges" (DCC), a decisive forensic blueprint ahead of the confirmation of charges hearing scheduled for February 23–27, 2026. This hearing represents a rigorous judicial filter where the Chamber must determine if there are substantial grounds to believe—the requisite evidentiary threshold—that Rodrigo Duterte committed the crimes alleged. The procedural weight of this filing is underscored by the real-world erosion of the "Apex" structure's domestic shield; notably, Senator Ronald “Bato” Dela Rosa has remained absent from the Philippine Senate since November 2025 following reports of an ICC warrant, signaling a shift from political posturing to active judicial pursuit.
The DCC characterizes Duterte as the architect of a criminal enterprise, exercising control of the crime through an organizational apparatus of power. His primary modes of liability under the Rome Statute are categorized as follows:
- Indirect Co-perpetration (Article 25(3)(a)): Utilizing a hierarchical structure to ensure the execution of the Common Plan.
- Ordering and Inducing (Article 25(3)(b)): Directing the commission of crimes through official mandates and normative authority.
- Aiding and Abetting (Article 25(3)(c)): Providing the moral encouragement and logistical "shielding" essential for the maintenance of a climate of impunity.
Jurisdictionally, the Court is empowered by Article 127(2) of the Rome Statute, which dictates that a state’s withdrawal does not affect its obligation to cooperate with investigations into crimes committed while it was a party. Consequently, the Court retains authority over the timeline of November 1, 2011, to March 16, 2019. This continuity is vital, as it allows the prosecution to bridge the transition from a localized municipal "model" of violence to a centralized national policy.
- Deconstructing the 'Common Plan' to 'Neutralize'
The prosecution’s case rests upon the existence of a "Common Plan"—a coordinated agreement between Duterte and his senior inner circle to "neutralize" perceived threats. In the jurisprudential context of the DCC, "neutralize" is not merely a euphemism but the operationalization of the Common Plan, providing the necessary mens rea (intent) for a widespread and systematic attack against a civilian population. This plan transformed the machinery of the state into an instrument of extrajudicial liquidation.
The DCC meticulously documents the "DDS Model’s" evolution from a parochial hit squad into a nationwide bureaucratic engine of death.
Evolution of the Common Plan
Feature Davao City Mayoral Period (DDS Model) National Presidential Period (National Network) Geographical Scope Davao City and surrounding areas (Davao del Norte). Nationwide expansion (e.g., Bulacan, Metro Manila, Ozamiz, Leyte). Recruitment & Command Local police and "non-police hitmen" (Davao Death Squad). High-ranking national officials, PNP, PDEA, NBI, and Bureau of Corrections. Operational Structure Killings required direct mayoral approval; localized hitmen. A "National Network" utilizing state assets and non-police hitmen/assets. Incentive Systems Localized cash rewards for killings. Systematic "PRRD List" with covert rewards ranging from P50,000 to P1 million.
The prosecution argues that this transition demonstrates a "widespread and systematic attack," distinguishing these acts from sporadic law enforcement excesses. The institutionalization of these killings through a "Common Plan" necessitated the application of indirect co-perpetration to link the "Apex" leadership to the physical perpetrators.
- Analysis of Indirect Co-Perpetration and Modes of Liability
The theory of indirect co-perpetration under Article 25(3)(a) is the prosecution’s primary tool for capturing the culpability of high-level architects who remain physically removed from the crime scenes. By exercising control through an organizational apparatus, the "Apex" ensures that the commission of the crime is not dependent on any single physical perpetrator but is a guaranteed outcome of the system’s design.
Duterte’s functional control over the act is distilled into three mechanisms of normative authority and psychological causality:
- Organizational Superiority: The strategic placement of loyalists from the "Davao model" into the leadership of the PNP, PDEA, and NBI ensured that the entire state security apparatus functioned as a tool for the Common Plan.
- Psychological Inducement: Through public statements and explicit promises of immunity, Duterte exerted a psychological influence that functioned as a directive. This "normative authority" assured subordinates that their violent acts were not only sanctioned but protected.
- Logistical Facilitation and Essential Contribution: The establishment of the "PRRD List" and the reward system provided the material motivation for the actus reus. Under ICC jurisprudence, this system constitutes an "essential contribution"; without this centralized targeting and incentive mechanism, the crimes would not have occurred in their systematic form.
The prosecution further bolsters its case with Article 25(3)(b) (Ordering) and 25(3)(c) (Aiding and Abetting), focusing on the "shielding" of perpetrators. As noted by Assistant to Counsel Kristina Conti, the plan was designed "not only to ensure implementation, but to ensure impunity," effectively removing the legal risks associated with state-sponsored murder. The legal theory of indirect co-perpetration remains an abstraction, however, without the identification of the "essential contributors" who populated this hierarchy.
- The Circle of Co-Perpetrators: Roles and Contributions
The DCC names eight specific high-ranking officials as "essential contributors" to the Common Plan, demonstrating that the "war on drugs" was a state-backed endeavor engineered for impunity.
- Senator Ronald “Bato” Dela Rosa: Transitioned from DCPO Chief to PNP Chief, acting as the primary national enforcer. His current absence from the Senate reflects the mounting legal pressure on the operational leadership.
- Senator Christopher “Bong” Go: As Special Assistant to the President and former personal aide, Go provided the proximity to the "Apex" required to manage the enterprise’s administration.
- Vitaliano Aguirre II: As Secretary of Justice and Duterte's lawyer, Aguirre is alleged to have facilitated the "shielding" of the enterprise, ensuring that legal mechanisms did not interfere with the Common Plan.
- Camilo Cascolan: Though he died in 2023, his actions as a senior PNP official remain integral to the prosecution’s mapping of the "Common Plan" and the liability of his surviving associates.
- Law Enforcement Leadership: Oscar Albayalde, Vicente Danao, Dante Gierran, and Isidro Lapeña are identified as those who exercised direct command over the physical perpetrators within the PNP, NBI, and PDEA.
In his defense, Senator Bong Go has issued a categorical rebuttal, specifically disputing the DCC’s accuracy regarding his titles. He denies ever serving as the Chief of the Presidential Management Staff (PMS) and maintains that his service adhered to "the law of God," asserting that he lacked authority over drug war operations. Despite these denials, the prosecution highlights their roles as the connective tissue between executive policy and the three counts of crimes against humanity.
- Evidentiary Pillars: The Three Counts of Murder
The prosecution utilizes 49 specific incidents involving 78 victims (76 murders and 2 attempted murders) to illustrate a broader pattern of state-sponsored victimization. While these represent the "charged crimes," the Pre-Trial Chamber has notably authorized 500 more applicants to participate as victims, reflecting a scale that far exceeds the initial redacted filing.
- Count 1: The Davao Period (2013–2016): Focuses on 19 victims (12 in Davao City, 7 in Davao del Norte). This count establishes the DDS model’s targeting of "drug pushers," "thieves," and general "criminals" under Duterte's mayoral watch.
- Count 2: High-Value Targets (2016–2017): Covers 14 murders of individuals on the "PRRD List," including Rolando Espinosa Sr. and Mayor Reynaldo Parojinog Sr. This count exemplifies the "essential contribution" of the reward system, with cash incentives reaching P1 million.
- Count 3: Barangay Clearance Operations (2016–2018): Involves 45 victims (43 murders, 2 attempts). This count is most significant for its inclusion of three children, including Kian Lloyd delos Santos. Critically, the fact that domestic courts convicted the police officers involved in the Delos Santos case does not mitigate the ICC case; rather, it serves as evidentiary proof that the killings were murders, further undermining the "legitimate law enforcement" defense.
The prosecution’s strategic decision to focus on these representative cases aims to satisfy the "substantial grounds" standard while signaling that the true scale of the attack against the civilian population involved thousands of additional victims now coming forward through the Court's expanded participation mandate.
- Conclusion: Strategic Implications for Accountability
The February 2026 filings represent the definitive shift of the ICC proceedings from a preliminary investigation into a comprehensive forensic trial of state-sponsored violence. By synthesizing the "Common Plan" with the theory of "indirect co-perpetration," the Office of the Prosecutor has dismantled the narrative of a chaotic "war on drugs" and replaced it with a legal framework of a criminal organizational apparatus.
The strength of the case lies in its ability to prove that the killings were not incidental excesses but the intended result of a policy designed for both implementation and impunity. With the denial of Duterte’s "fitness to stand trial" appeal and the formal naming of his "essential contributors," the Court has established a clear path toward the confirmation of charges. Ultimately, these filings transition the discourse from political "neutralization" to the rigid, evidentiary reality of state-sponsored crimes against humanity.