‘Don’t rush us’

The International Criminal Court (ICC) has ordered the arrest of Russian President Vladimir Putin and his commissioner for children’s rights, Maria Lvova-Belova, for the war crime of illegally deporting hundreds of children from Ukraine.

This has raised hopes among certain quarters in the Philippines that a similar order will be issued by the ICC for former president Rodrigo Duterte, for murder as a crime against humanity in his campaign against illegal drugs.

But can the ICC order be enforced? It obligates its 123 member states to arrest Putin and turn him over to The Hague for trial – if he enters those states, which he doesn’t seem to intend to do.

Both Russia and Ukraine are not ICC members, and the Kremlin has dismissed the court order as “null and void.”

The Philippines withdrew from the Rome Statute that created the ICC effective March 17, 2019. Shortly before this year’s anniversary of the withdrawal, the government appealed the ICC’s decision to proceed with its Philippine probe.

The probe involves killings during Rodrigo Duterte’s presidency as well as when he was mayor of Davao City from Nov. 1, 2011 until June 30, 2016 when so-called death squads supposedly carried out the executions.

Some of Duterte’s former officials have criticized the appeal filed by the Office of the Solicitor General under the Marcos administration, saying the OSG effectively allowed the ICC to proceed with the probe pending the resolution of the appeal, and actually gave the ICC jurisdiction over the Philippines.

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The government’s position is premised on several key points. One is that the country had already withdrawn from the ICC when the probe was initiated.

Another point is that the ICC carries out investigations involving only four specific offenses: war crimes, genocide, crimes against humanity, and the crime of aggression. The Philippine government maintains that the drug killings were part of legitimate law enforcement operations and did not constitute crimes against humanity.

Solicitor General Menardo Guevarra explains that crimes against humanity involve multiple offenses systematically carried out against a particular group to achieve a specific end.

This has not been the case in Duterte’s war on drugs, Guevarra told “The Chiefs” last Thursday on Cignal TV’s One News.

He said the “war” with its take-no-prisoners approach was a legitimate law enforcement campaign targeting the illegal drug scourge. Regularity must be presumed in this law enforcement function of the state, says Guevarra, who was Duterte’s secretary of justice from May 2018. The burden of proving otherwise, Guevarra says, lies on those who suspect crimes against humanity.

Didn’t Duterte’s often repeated kill, kill, kill public exhortations to cops inspire a systematic extermination of over 6,000 people on mere suspicion or allegation of drug offenses?

Such statements, Guevarra explained, must be balanced against Duterte’s numerous clarifications on his instructions to police, which boil down to, kill or be killed in a threat situation. Duterte’s penchant for hyperbole is also well-known, Guevarra pointed out.

The solicitor general, however, is not completely ruling out the possibility that the probe could reach higher officials responsible for the drug killings. But the government, he says, must be given enough time to first put together a broad picture of what happened.

This is a third key point in the government’s position: the Philippines is able and willing to investigate the killings, all pillars of the criminal justice system are functioning, so there is no basis for the ICC to step in.

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Justice Secretary Jesus Crispin Remulla has decried the ICC’s “unjustified external interference” in Philippine governance and “insult” to the country’s sovereignty.

While the government is able and willing to investigate, Guevarra tells the ICC: “Don’t rush us.”

The Philippine criminal justice system isn’t known for speed or efficiency; the ICC will have to accept this state of affairs in this country. Guevarra stresses that the slow pace doesn’t mean the system isn’t working.

He says the probes on possible extrajudicial killings in the drug war have also been hampered by the lack of complainants, or the unwillingness of relatives of those killed to cooperate.

This unwillingness could be due to relatives’ fear of police retaliation and general distrust of the government. Can authorities provide sustained protection to such people?

Guevarra supports proposals to set up an independent commission to investigate the drug war – as long as all the members are Filipinos selected by Philippine authorities or concerned sectors.

President Marcos, who has refused to sustain the bloody campaign against drugs despite exhortations by Duterte, has nevertheless backed the government lawyers’ position on the ICC probe, and sees no need for the country to rejoin the ICC.

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Since BBM seems concerned about the international image of the country and, more importantly, of the Marcos name, he may also have to weigh the impact of a Philippine probe that might be seen as a whitewash rather than a genuine truth-seeking on the drug deaths.

BBM is no naïf; he must at least suspect that the police executions of teenagers Kian Loyd de los Santos, Carl Arnaiz and Reynaldo de Guzman looked more like the SOP rather than the exception in Oplan Tokhang.

Those cases, for which several policemen have been convicted and sentenced to life in prison, have been cited by the Philippine government as proof that the criminal justice system is working, despite all the warts.

Critics have said the cases are mere token convictions to keep the ICC away, with accountability limited to low-ranking cops.

Our country, unfortunately, has a dismal record in holding high-ranking government officials accountable, whether for large-scale corruption, tax evasion, or torture and other gross human rights violations.

Malaysians, whose judiciary recently sent a second former prime minister to prison for corruption, are citing the Philippines as a cautionary tale on the failure to hold public officials accountable for wrongdoing.

South Korea, now a global leader in the projection of soft power, has sent nearly all of its post-partition presidents to prison for treason, human rights violations and corruption.

We are going in the opposite direction, rewarding lawbreakers with election or appointment to high office.

Such is the lamentable state of our nation. The government is telling the ICC to respect this situation, take it or leave it.

Even if the ICC refuses, it’s uncertain if accountability in the drug killings will go higher than the level of police non-commissioned officers.

The principal players will be home free. As always.