International Criminal Court

[The Slingshot] Can the ICC arrest Duterte?

Antonio J. Montalvan II

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[The Slingshot] Can the ICC arrest Duterte?

Raffy de Guzman/Rappler

'There is a hidden participant to these astounding developments, an elephant in the room even, that we have failed to see'

Some skeptics have opined that it will be difficult for the International Criminal Court to enforce the arrests of Rodrigo Duterte and his numerous co-accused once it issues arrest warrants for them. Is that skepticism valid? A basic understanding of how the ICC works – which many do not have – is in order.

The ICC was granted jurisdiction by the Rome Statute over four main crimes, among which is the crime against humanity (the others are genocide, war crimes which are grave breaches of the Geneva Conventions, and the crime of aggression by one state against another).

The 15 forms of crimes against humanity listed in the Rome Statute include offenses such as murder, rape, imprisonment, enforced disappearances, enslavement – particularly of women and children, sexual slavery, torture, apartheid, and deportation. Rodrigo Duterte et al are accused of multiple murders as crimes against humanity.

There are six phases in the ICC’s legal process from start to finish. These are preliminary examinations, investigations, pre-trial stage, trial stage, appeals stage, and enforcement of sentence. The preliminary phase of the Duterte case began in February 2018. It moved up to the investigation stage in September 2021.  And that is where the complaint filed against the Philippines’ “war on drugs” under Duterte is at present, in the investigation stage.

The investigation phase is a period where the court receives depositions from witnesses and cross-examines them. After gathering evidence and deeming it sufficient, it will then identify the suspects. Having done that, the prosecution will then request the ICC judges to issue the warrants of arrest.

The country – in this case the Philippines – will then be requested by the ICC to arrest the suspects and transfer them to The Hague. But will the Marcos Jr. government arrest these suspects, foremost among whom is the former president and Davao City tyrant?

To understand the dynamics of that possibility is to focus on the about-face of the Marcos Jr. government. Its secretary of justice Jesus Crispin Remulla articulated only last July, that if the ICC investigators enter the country, it will be a “usurpation of authority of the Philippine government” – hence, a violation of Philippine laws.

Remulla is no longer saying that, but the opposite. First, gone is the reference to a violation of Philippine laws. He now cites the March 2021 Supreme Court ruling as “jurisprudence” (his own word), that said the ICC retains jurisdiction even if the country has pulled out from its ICC membership.

The Supreme Court decision was a full bank decision by all its 15 justices, that the ICC “retains jurisdiction over any and all acts committed by government actors until March 17, 2019” – overlapping the first three years of Duterte’s presidency and drug war. “Withdrawal…does not affect the liabilities of individuals charged before the International Criminal Court for acts committed up to this date.” Non-jurisdiction is now a passé argument, a non sequitur even, of senator trolls.

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And then Remulla makes the incredible reference. He said that government would study the resolution introduced in the House by the Makabayan Bloc of representatives urging the President to allow the ICC to come in. By and large, that means only one thing – the Marcos Jr. government will allow the ICC investigators to come in. “Study” was only meant as a cryptic code.

What can ICC investigators do in the country? They can cross-examine witnesses, some of who are the families of drug war victims. Some witnesses, however, are former killers and police assassins of the Davao Death Squad whose testimonies are crucial as those of first-person eyewitnesses. Foremost, it will also mean that the investigations will be hastened. It will advance the possibility that by the first quarter of 2024 at the earliest, warrants of arrest will be issued.

The Marcoses and the Dutertes are no longer political allies. For the Marcoses, they’d better not be allies anymore, for them to have a president from their own interests in 2028, which for their certainty should not be Sara Duterte.

It is even possible that the ICC charge sheet will also include two of the Duterte children, Paolo and Sara, because of straightforward and corroborative testimonies from DDS handler killers mentioning their participation in the Davao City extrajudicial killings. As for Bato dela Rosa and Bong Go, their inclusion in the warrants are a shoo-in.

There is a hidden participant to these astounding developments, an elephant in the room even, that we have failed to see. That is the European Union. The EU has been forthright on two conditions as non-negotiables for the resumption of special trade incentives including slashed tariffs for a wide variety of Philippine products: the liberty of Leila de Lima, and the Philippines rejoining the ICC.

Can the Marcos Jr. government arrest the Dutertes et al and transfer them to The Hague’s Scheveningen Prison? As fierce political enemies now, of course it can. After all, who would want the Philippines to be a rogue state of the world because of the idiocy of Dutertismo and its Red China pivot? Not Marcos Jr. –

Antonio J. Montalván II is a social anthropologist who advocates that keeping quiet when things go wrong is the mentality of a slave, not a good citizen.

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  1. ET

    First of all, we hope that Mr. Montalvan’s reading of “study” as a cryptic word is correct. Secondly, we also hope that President Marcos Jr. will eventually surrender the Duterte Family (Father, Daughter, and Son) to the ICC. He will be hitting two birds with one stone: 1) getting rid of a fierce competitor Political Dynasty, which was once an ally, now an enemy; 2) pleasing the EU (the “elephant in the room”).

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