Negotiating Away Sovereignty: A Critical Response to Atty. Nicholas Kaufman’s “Strategy” on PRRD’s Return

By: Arnedo S.Valera, Esquire

The recent public statement of Atty. Nicholas Kaufman, counsel for former President Rodrigo Roa Duterte, calling for “negotiation” with the Philippine government to facilitate Duterte’s return from International Criminal Court (ICC) custody, is not simply a tactical misstep. It is a profound legal error, a political evasion, and a direct affront to the sovereignty of the Republic of the Philippines.

 The Constitutional Context: Sovereignty Is Non-Negotiable

The 1987 Philippine Constitution is explicit in Article II, Section 2: the Philippines “renounces war as an instrument of national policy” but simultaneously “adopts the generally accepted principles of international law as part of the law of the land.” This constitutional clause was never intended as a blank check for supranational tribunals to override domestic sovereignty. Instead, it embodies a dual mandate: to engage the world as a law-abiding state while jealously guarding national independence.

To treat the fate of a former President as the subject of “negotiation” between counsel and the executive branch is to misconstrue sovereignty itself. The liberty of a Filipino citizen—much more a former head of state—is not a diplomatic token to be bartered. It is a matter of constitutional due process. Any surrender of such jurisdiction without exhausting domestic remedies is void for being ultra vires and unconstitutional.

 Complementarity Misapplied: The ICC as Court of Last Resort

Atty. Kaufman’s statement also ignores the fundamental principle of complementarity under the Rome Statute. Article 17 of the Statute makes plain that the ICC shall only exercise jurisdiction where national courts are “unwilling or unable genuinely to carry out the investigation or prosecution.”

The Philippines has a fully functioning judicial system, with a Supreme Court of long-standing independence, trial courts capable of adjudication, and institutions empowered to check abuses. The Senate’s own inquiry into the so-called “unlawful surrender” of Duterte resulted in the filing of criminal cases against state actors who conspired in that betrayal. That alone is concrete proof of an active domestic legal system. To invite the ICC into this framework, or worse, to legitimize its custody through political negotiation, is to flip complementarity on its head and admit to the world that the Republic is a failed state.

The Fallacy of Recasting Policy into “Crimes Against Humanity”

Central to the ICC narrative is the claim that Duterte’s anti-drug campaign constitutes crimes against humanity. But international criminal law is not an arena for policy disagreements. The doctrine emerged from Nuremberg, the Yugoslavia Tribunal, and the Rwanda Tribunal to address atrocities of genocide, ethnic cleansing, and systematic extermination. To equate a controversial domestic anti-narcotics policy with these paradigms is a distortion.

Philippine law provides multiple remedies for alleged abuses: constitutional writs (habeas corpus, amparo, habeas data), the Ombudsman, the Commission on Human Rights, and the regular courts. These remedies were not only available, they were actively invoked during Duterte’s presidency. To bypass all these institutions and internationalize the issue is not law; it is political weaponization.

 International Kidnapping Disguised as Cooperation

What occurred in the purported surrender of Duterte to ICC custody cannot be whitewashed as “cooperation.” It bears the classic hallmarks of international kidnapping: absence of lawful extradition treaty, lack of domestic judicial imprimatur, and non-compliance with constitutional requirements of due process.

Articles 59, 89, and 91 of the Rome Statute are instructive. They provide that any arrest and transfer of an accused must be carried out pursuant to national procedures, with judicial oversight in the requested state. None of these requirements were met. The act was therefore ultra vires even under the Statute itself.

The Philippine Senate recognized this when it conducted hearings and recommended criminal charges against those who facilitated this unlawful surrender. To then propose “negotiation” for Duterte’s return is to grant legitimacy to what is legally void and politically scandalous.

Legal Strategy vs. Political Noise

Atty. Kaufman describes his approach as “meta-legal.” In reality, it is the abandonment of legal defense in favor of political optics. True legal strategy would involve:

1. Challenging ICC jurisdiction through the doctrine of complementarity;

2. Invoking the principle of state sovereignty under Article 2(7) of the U.N. Charter, which prohibits external interference in domestic affairs;

3. Filing actions before Philippine courts to declare any surrender unconstitutional; and

4. Raising violations of international due process before the International Court of Justice or through state-to-state diplomacy.

By contrast, Kaufman’s “strategy” rests on political appeals, pleas for prayer, and a vague call for negotiation. This is not legal defense. It is damage control disguised as advocacy.

The Stakes: More Than One Man

This controversy is larger than Duterte. It is about whether the Philippines remains a sovereign nation capable of defending its legal system, or whether it will allow foreign institutions to dictate its fate. To acquiesce to negotiation is to set a precedent that any future leader—however popular, however elected—may be whisked away to The Hague by political maneuvering. That is not justice; that is subjugation.

The unlawful surrender of former President Duterte to the ICC, if left unchallenged, marks a constitutional crisis of the gravest order. The path forward cannot be negotiation, for sovereignty is not negotiable. The path forward is principled legal assertion: to expose the illegality of the arrest, to invoke the complementarity principle, to defend the legitimacy of Philippine institutions, and to affirm that crimes against humanity cannot be manufactured out of contested domestic policies.

In the end, legal defense must be anchored on law, not political noise. Anything less is not strategy—it is surrender. #

Atty. Arnedo S. Valera is  a Co- Executive Director / Founder of the Global Migrant Heritage Foundation and Managing Attorney of Valera & Associates, a U.S. immigration and anti-discrimination law firm he has led for more than 32 years. He is a Ford Foundation and Asia Foundation Scholar, holding a master’s degree in International Affairs and International Law and Human Rights from Columbia University, New York, with further training at the International Institute of Human Rights in Strasbourg, France. He earned his Bachelor of Laws from Ateneo de Manila University and his AB in Philosophy from the University of Santo Tomas. A committed educator, he serves as a professor at the San Beda Graduate School of Law (LLM Program), teaching International Security and Alliances. He is also a columnist writer for Inquirer.net and a pro-bono attorney for several nonprofit organizations in the United States.