Maybe it’s just my imagination, but there seems to be something akin to panic and dismay in some quarters over the news that the Philippine government has finally launched an investigation of Rodrigo Duterte for possible crimes against humanitarian law.
This is despite the well known animosity between the Dutertes and the current ruling Marcos-Romualdez clan, which could make it likely that domestic prosecution would actually result in a finding of guilt that warrants stiff punishment.
The panic and dismay seem to spring from the fear that the Philippine probe, launched by the Department of Justice, will trigger the principle of complementarity and keep Duterte and his minions outside the reach of the International Criminal Court.
Under this principle, the ICC may exercise jurisdiction over a case only when a country’s legal system fails to do so, when it is shown that legal authorities are unable or unwilling to conduct a credible probe.
Articles 17 and 53 of the Rome Statute, which created the ICC, provides that the court cannot take on a case that is currently under investigation by a country with jurisdiction over it.
Duterte has taunted the ICC to come and get him, but his original statements on the issue seem to be his genuine stand: that he would never submit himself to the jurisdiction of a foreign court.
So shouldn’t we be glad that a domestic investigation is underway, not only for individual extrajudicial killings, but for possible crimes against humanity carried out in the name of law enforcement?
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We know what’s fueling public dismay and skepticism: trust deficit.
It’s the lack of trust in the integrity and efficiency of the judiciary, which is supervised by the Supreme Court, and of the prosecution service, which is under the executive branch.
If the principle of complementarity is invoked and domestic prosecution takes precedence over the ICC trial, it’s not just Duterte but also many of us who could be dead before a final ruling is handed down.
And even then, there’s no guarantee that he will be found guilty. Only the minions in this country get thrown under the bus; their bosses go scot-free. We’ve seen this too many times in high-profile cases. Duterte’s aides could go to prison, but he himself could be let off, if only because of advanced age and health. VIPs who face imprisonment always find a health affliction warranting exemption from jail.
Any prosecution of Duterte is likely to be politicized. If he and his relatives haven’t riled the Marcos-Romualdez clan, would he be facing congressional investigations, especially at the House led by BBM’s favorite cousin?
The next leadership change is set in 2028. At this point, Charter change for a shift to a parliamentary system looks dead in the water, so the presidential race is likely to push through. After the midterm elections next year, prepositioning will start for the 2028 race.
What if the political winds blow in the opposite direction while Duterte is still on trial in the Philippines for crimes against humanity?
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Department of Justice Secretary Jesus Crispin Remulla said he did not want the DOJ probe to “overlap” with what the ICC is doing – meaning the ICC card is still on the table for the Marcos 2.0 administration.
How this will work out is unclear. Duterte is being probed by the DOJ, for the first time ever, for possible violation of a law passed way back in 2009, Republic Act 9851 – the Philippine Act on Crimes Against International Humanitarian Law, Genocide and Other Crimes Against Humanity.
He’s not being probed for genocide, whether by the ICC or the DOJ. The two bodies are looking at the same possible offense, based on the same pattern of killings arising from the same motives, using (or will be using, in the case of the DOJ) testimonies from the same witnesses, and now the transcripts from the congressional probes.
The ICC has been investigating Duterte and several of his former aides for several years now, for a possible indictment for murder as a crime against humanity. But the court has been unable to get any sworn statement from Duterte and his aides led by his former police chief, Sen. Ronald dela Rosa, who said he refused to take calls from persons claiming to be from the ICC.
President Marcos has maintained that the Philippine legal system is fully functional and there is no need for the ICC to step in, thank you. His “little president” Lucas Bersamin said last week that BBM had not changed his position on this.
Remulla at one point said it would be an “insult” for the pillars of the country’s legal system if the ICC would step into offenses committed in the Philippines.
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Recently, BBM, Bersamin and Remulla modified their position. Amid reports that the ICC was preparing to issue arrest warrants for Duterte, et al, the three said while the government was not changing its position on non-cooperation with the ICC, the country remains a member of the International Criminal Police Organization, and is committed to cooperate with the Interpol in case it is asked by the ICC to facilitate the arrest of Duterte.
Since last year, the Marcos administration has also not stopped ICC probers from coming to the Philippines for informal talks with witnesses, resource persons and victims’ relatives, and to gather evidence.
As long as the ICC activities are not conducted under a formal setting, they cannot be stopped by the government, according to administration officials. They said ICC personnel could come to the Philippines on tourist visas but do more than sightseeing, as long as the activities don’t break the country’s laws.
By most accounts, ICC personnel continue to do their work informally in the country, both in person and through digital communication.
So what happens now that the government is out to show that the Philippine legal system can also go after Duterte for crimes against humanity?
If Marcos 2.0 won’t invoke ICC complementarity, the Duterte camp could do so in demanding a domestic trial.
The ICC might be unable to get hold of Duterte before he croaks.