International Criminal Court issue will mark Duterte presidency

DUMAGUETE CITY, Philippines – Chief Presidential Counsel Salvador Panelo wants everyone to know that President Rodrigo Duterte is not afraid of anything, certainly not the International Criminal Court (ICC).

“He doesn’t mind if you want him to be ousted or to be killed…. The character and history of this man demonstrate the falsity of the claim that he is afraid of the ICC,” Panelo said in a forum in Dumaguete City on Thursday, August 30. His audience included human rights lawyers and advocates who gathered to talk about the Philippine' withdrawal from the ICC

Now comes the dare: If Duterte is fearless, then he himself should recall the withdrawal and allow the ICC prosecutor to continue the preliminary examinations into the killings in the war on drugs.

“His drug war, which he himself made a central point in his presidency, and how he handles it and the many deaths and crimes being committed around it, will definitely mark his presidency,” said lawyer Emerlynne Gil, senior international legal adviser for Southeast Asia of the International Commission of Jurists.

‘He looks pikon’

Solicitor General Jose Calida will face Supreme Court  justices on September 4 to defend Duterte’s withdrawal from the ICC opposite human rights lawyers and minority senators who claim that the President cannot unilaterally decide to pull out of the international treaty.

“(Duterte) looks pikon (defensive), because he wasn’t even named in the statement,” Gil said, referring to the statement of ICC Prosecutor Fatou Bensouda that she will launch a preliminary examination into "the situation in the Philippines."

Romel Bagares, counsel for the Philippine Coalition for the ICC who first argued before the Supreme Court on August 28, added that staying in the ICC will prove Duterte’s claim that he wants to hunt down crooks in the police force who might be involved in the killings. (READ: Panelo says 'simple' to get drug war reports via FOI. It's not.)

Bagares explained that because the preliminary examination is done to determine whether there is an inability or unwillingness of the local justice system to investigate the killings, in effect, the process will force the system to improve its prosecution of the killings.

How tied is Duterte to the ICC examination?

While human rights lawyers try to make the ICC preliminary examination about the killings and accountabillity in general, Panelo’s justifications make it about Duterte himself.

Panelo pointed out that the communications that triggered the examinations accuse Duterte of committing crimes against humanity.

Sinasabi hindi naman binanggit si Presidente Duterte, pero Philippine situation. Sino ba ang Presidente ng Pilipinas (They are saying President Duterte was not even mentioned, but the statement said Philippine situation. Who is the President of the Philippines)?" Panelo said.

Among Panelo's arguments on why Malacañang believed the Rome Statute was invalid from the start was also about Duterte. The Rome Statute is the international treaty that created the ICC; the Philippines ratified it in 2011. 

“If you examine the Rome Statute, you will see provisions there that is in violation of the Constitution. One, it does not recognize presidential immunity; jurisprudence said you cannot sue the president in his incumbency,” Panelo said.

Gil said there is no telling how tied Duterte is to the preliminary examinations because he was not named in the statement. But Gil said the administration would succeed in its war on drugs if it lets the ICC do its job.

She added: “These continued killings are really a mistake. One of the things I really appreciate deeply about the president is that he recognizes whenever he is wrong, and this withdrawal from the ICC is really wrong."

Gil said that staying in the ICC is insurance that the Philippines will not fall into a harsher state of impunity.

"We never know what’s going to happen to our country," said Gil. Rappler.com

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Lian Buan

Lian Buan covers justice and corruption for Rappler. She is interested in decisions, pleadings, audits, contracts, and other documents that establish a trail. If you have leads, email lian.buan@rappler.com or tweet @lianbuan.

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