Presumption of regularity

With former president Rodrigo Duterte finally facing the International Criminal Court last Friday, even if only by video link, it looks like there’s no more turning back: the ICC has acquired jurisdiction over him, with the Philippine government’s consent, so he will just have to face the charges.

Although the introductory hearing took place just two days after his arrival in The Hague, lawyers familiar with ICC proceedings say the formal trial itself could drag on for years.

The next step in the process, after the introductory phase last Friday, is the hearing in September on the confirmation of charges.

Until then, Duterte’s camp can challenge the ICC’s jurisdiction, including his arrest. We already know the argument of his camp – that the ICC lost jurisdiction over his case following the withdrawal of the Philippines from the Rome Statute, and his arrest is tantamount to a “state kidnapping” or, as his former executive secretary Salvador Medialdea put it before the court, “extrajudicial rendition.”

Medialdea described Duterte as a “prize catch” of a “troubled institution.” ICC chief prosecutor Karim Khan, a British-Pakistani, is under investigation by the United Nations on charges of sexual harassment filed by a lawyer. He claims innocence, but some quarters say it may be best for him to go on leave pending his investigation to preserve the credibility of the ICC.

It’s noteworthy that Medialdea also mentioned the “political persecution” of Duterte. One of the key reasons why countries such as the United States, Russia, China and Israel have not joined the ICC is their belief that the court could be used for politically motivated prosecution.

Only six men have been convicted by the ICC for crimes against humanity and war crimes. All were militia leaders from Democratic Republic of Congo, Mali and Uganda.

The ICC has ordered the arrest of Russian President Vladimir Putin over his invasion of Ukraine and Israeli Prime Minister Benjamin Netanyahu for alleged war crimes in Gaza. Since both are in power, however, their state forces aren’t about to turn them over to the ICC even through the Interpol.

Netanyahu even became the first world leader to be welcomed to the White House by US President Donald Trump, who wants to evict all Palestinians from the Gaza Strip and turn it into the “Riviera of the Middle East.” Trump also slapped sanctions on the ICC’s Khan for the arrest warrant on Netanyahu.

Duterte is the first former Asian leader to face the ICC.

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Seeing Duterte at the ICC hearing, the petitions filed by his camp before the Supreme Court to compel the Philippine government to work for his return is increasingly looking moot and academic.

Lawyers point out that the Philippine government has no jurisdiction over the ICC. The Marcos administration has stressed that its handover of Duterte was through the Interpol, and was in compliance with Philippine commitments as a member not of the ICC but of the International Criminal Police Organization.

The best recourse at this point for Duterte, the lawyers say, is for him to argue the validity of his arrest before the ICC itself. This could be like shooting at the moon. Or else, even if ICC cases don’t allow bail, he may seek interim release, which is allowed under rare circumstances, although there seems to be no such special reason that might apply to him. One of the handful of ICC-accredited Filipino lawyers has said that advanced age and poor health are not among the exceptional reasons.

Duterte seems ready to face the music. On the plane to the Netherlands, he repeated what he told the House quad committee: he is taking full responsibility for his war on drugs.

As we are seeing in the mass protests against his arrest, there are still many people who accept his defense of his brutal crackdown.

The ICC judges – the same ones who issued Duterte’s arrest warrant – didn’t consider his health problems “debilitating” enough, as his camp argued, to postpone to this week the introductory hearing.

ICC Presiding Judge Iula Motoc simply read Duterte his rights and the specific charges, and set the “confirmatory charges hearing” on Sept. 23.

That’s not even the start of the formal trial. This is going to be a long proceeding. Duterte will be celebrating his 80th birthday on March 28 in an ICC detention facility. Where will he be when he turns 81?

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Based on his statements en route to The Hague, Duterte’s defense is going to be unchanged from what we heard throughout his six years in power: he did what he had to do, given the constraints and the state of the Philippine criminal justice system, to curb what he considered to be a serious problem in peace and order.

A peaceful environment, he often said, was conducive to national development and economic prosperity. And how he pursued his objectives during his presidency is none of the ICC’s business.

His minions, along with ordinary cops, invoke presumption of regularity in carrying out Oplans Tokhang and Double Barrel.

Many people actually bought that argument, including lawmakers who are now siding with the Marcos administration in its move to toss Duterte to the ICC through the Interpol.

After watching a subdued Duterte finally facing the “white people” at the ICC, perhaps some of his minions are beginning to see that a society that presumes regularity in mass murder is doomed.