MANILA, Philippines – The tense wait for the next move of the International Criminal Court (ICC) has exposed the desperate tactics of former president Rodrigo Duterte, the alleged subject of investigation, and the indecisiveness of President Ferdinand Marcos Jr., who cannot keep a definite tone on what his government’s policy is.

Marcos’ justice secretary, Jesus Crispin Remulla, said on Friday, February 9, that the “ICC holds no jurisdiction over the Philippines” – yet another toned down iteration of the government’s stance in the face of speculations coming from Duterte’s camp that a warrant of arrest against the former president is in the horizon. The strongest position that Marcos has taken was late 2023 when he said he was open to studying the return of the Philippines as a member of the ICC.

The drama between Marcos and Duterte reached a fever pitch end of January when both held simultaneous rallies where the former president accused his successor of being a drug addict. Marcos, who is usually not one to engage in nasty word wars, clapped back and said Duterte’s tirades may be the result of fentanyl use.

That’s when Duterte, through his former spokesperson Harry Roque, said that an arrest warrant is looming. This cannot be confirmed because “warrants of arrest may be issued confidentially (under seal) or publicly, depending on the circumstances,” according to the ICC’s Office of the Prosecutor, referring to general cases.

Duterte said he will resist arrest and will not hesitate to resort to violence. “Kapag puntahan nila ako, arestuhin nila ako dito, magkabarilan talaga ‘yan at uubusin ko ang mga putanginang ‘yan (If they come for me, if they arrest me here, there will be a shootout, I will finish all those sons of bitches),” said Duterte in an interview with his former presidential legal counsel Salvador Panelo over radio DZRJ on Thursday, February 8.

Duterte said in the same interview that he believes Marcos has nothing to do with the ICC moves, even as key witness and self-confessed Duterte hitman Arturo Lascañas resurfaced right after the Uniteam breakup in those rallies.

What happens if there is indeed a warrant?

International law advocates insist that even if the Philippines is no longer a member of the ICC, it is still bound to cooperate with the court, which for them is enough framework for national authorities to enforce a potential warrant.

“That is the obligation under the Rome Statute, if you are a member and you withdraw, you still have an obligation to cooperate for those crimes that were committed while you were a member,” said retired Supreme Court senior justice Antonio Carpio.

Enforcement is a big problem in international law proceedings because the ICC has no police powers, and relies only on national authorities to enforce its orders. The Philippine National Police (PNP) under Marcos says it will not enforce any ICC arrest warrant.

“President Marcos is closely being watched. What will be his next decisive actions? He should not be perceived as weak by different stakeholders,” said political analyst Maria Ela Atienza.

But the absence of such decisive actions from Marcos, so far, opens the possibility of a local court showdown. That would give Marcos a reason to leave to the judiciary the question of how to deal with a warrant, just like how he left to the legislative branch last year the issuance of resolutions urging the government to cooperate with the ICC.

But “procedurally, a regional trial court cannot issue a local warrant of arrest in place of a warrant issued by the ICC,” said Ross Tugade, a lecturer of the University of the Philippines (UP) College of Law.

If anything, Duterte or the subject of the ICC warrant can challenge it before a local court, and “the domestic court will look into the propriety of the ICC warrant and determine if the rights of the respondent were respected,” said Menardo Guevarra, Marcos’ solicitor general and Duterte’s former justice secretary.

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‘Woe to the victims of the drug war’

Duterte’s “brand of leadership and rhetoric” is evident in his drug-tagging of Marcos and his mouthpieces being behind speculations about what the ICC’s next move will be, said Atienza.

“He is apparently still influential, especially in Mindanao, and can use these attacks to try weakening the popularity and influence of the President and his administration. But he forgets that he is no longer immune to legal cases and that the ICC is actively investigating the war on drugs,” said Atienza.

For their consideration is also the fact that the ICC investigation is gaining traction among voters, as Filipinos have shown increasing trust and approval of the probe, according to a December 2023 SWS survey.

The victims of Duterte’s drug war, while supportive of an ICC investigation, have been made a little more anxious by these speculations, “worried that the more public the investigation is, the more dangerous it could be for the people in it,” said Kristina Conti, an ICC-accredited assistant counsel and lawyer for a group of victims.

“This drug-tagging affair between Marcos and Duterte is deeply insulting to communities. To the victims of the war on drugs, it yet again exposes the sham and shows the policy as it really was: a massacre of the poor. Kapag maliit kang tao, nakakamatay ‘yan, totoo man o hindi (If you’re an ordinary person, those accusations are deadly whether they are true or not),” said Conti.

The call of the human rights community remains the same: for Marcos to cooperate with the ICC and revamp the drug war policy that has still resulted in killings under his administration. More than 300 people were killed under the mantle of the campaign against drugs in 2023, according to the record-keeping of the Dahas project of the UP Third World Studies Center.

“If [Marcos] does not do any of these things, it will only mean that he’s using this issue as a political weapon against Duterte. Woe, then, to the thousands of victims of the ‘drug war’ that are still struggling to find justice and closure,” said Carlos Conde, Philippine researcher of Human Rights Watch. – Rappler.com