Dealing with the ICC

The pillars of the Philippine criminal justice system are functioning – law enforcement, prosecution, the courts and corrections.

Flawed as the pillars may be, and weak though the rule of law may be, the system is in place, and the country does not need foreign intervention to get the system to work.

This is the principal argument of the government in opposing the International Criminal Court’s decision to proceed with a full-blown investigation of possible crimes against humanity committed in the war on drugs waged by Rodrigo Duterte, as mayor of Davao City and then president from 2011 to 2016.

Following the same argument, the Marcos administration doesn’t see the need for the country to rejoin the Rome Statute that established the ICC. Justice Secretary Jesus Crispin Remulla has said the ICC can step in only in failed states – which the Philippines is not.

For the ICC to see the need to step in, when the Marcos administration is conducting its own probe into the drug killings, is an “irritant” and an “insult” to a sovereign state, according to Remulla.

The Supreme Court, which should also be insulted by the ICC decision, has withheld comment.

Because of this “insult,” rejoining the ICC seems to be out of the question at this point. The Philippines can cite as models the countries that never joined the ICC: the US, China, Russia, Israel, Libya and Qatar.

But as far as the ICC is concerned, it must step in because the Philippines has been unwilling and unable to go after the principal subject of its probe: Duterte himself.

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Accountability for the 6,200 drug killings acknowledged by the Philippine National Police (PNP) as part of its war on drugs may not even reach another subject of the ICC probe, Sen. Ronald dela Rosa.

As Duterte’s former PNP chief, Dela Rosa designed and implemented Oplan Tokhang, under which most of the thousands killed in the drug war were penny-ante neighborhood pushers from the slums.

This was during the Duterte presidency. The unwillingness and inability to pursue a probe for murder as a crime against humanity are even stronger in the drug killings attributed to Davao death squads when Duterte was the city mayor. Duterte has consistently denied the existence of the death squads.

Solicitor General Menardo Guevarra, who served as Duterte’s last justice secretary, has said the government would appeal the ICC’s decision.

In 2009, the Philippines passed Republic Act 9851, the Act on Crimes Against International Humanitarian Law, Genocide and Other Crimes Against Humanity. In March 2019, Junaid Awal, a member of the Maute group that laid seige to Marawi in 2017, was convicted and sentenced to life in prison by the Taguig regional trial court for rape and sexual slavery of a minor, not just as common crimes but as offenses defined under RA 9851.

In this land where justice is malleable, is there political will to pursue Duterte for possible violation of RA 9851? No such move has been initiated against him or Ronald dela Rosa.

Guevarra can argue that the Philippines is still in the process of determining how high up accountability should go for the drug war.

But realistically, even if probers find probable cause to pin ultimate accountability on the person who won the presidency on a platform of kill, kill, kill, will the current administration go after Duterte?

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In the previous Congress, the Senate Blue Ribbon committee’s draft report on the Pharmally scandal never reached the plenary for approval. This was because several senators balked at the recommendation to include Duterte in the indictments once he lost presidential immunity.

On “The Chiefs” last week on Cignal TV’s One News, we asked the new Blue Ribbon chairman, Sen. Francis Tolentino, about the possibility of reviving the Pharmally probe. He said that so far, no one has filed such a recommendation.

But if any of the two minority senators sought a resumption of the probe, would the Blue Ribbon go along with it?

This is just a corruption scandal. The ICC is looking into multiple murders as a crime against humanity.

The issue is a ticklish one for Marcos 2.0, which is trying to rehabilitate the family name long associated with gross human rights abuses under martial law, billions in hidden wealth and the kleptocracy of the conjugal dictatorship.

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Because Duterte set the bar so low in the human rights department, it has been relatively easy for Ferdinand Junior to present himself as someone with more respect for civil liberties.

In just six months, BBM has mended frayed Philippine ties with the European Union – a favorite subject of Duterte’s regular harangues. This has enhanced the country’s appeal as an investment destination for the EU and ensured the preservation of the country’s preferential trading status with the bloc.

This image of a non-despotic Marcos is certain to be affected by how BBM deals with the ICC move.

Still, BBM’s moves have been better than Duterte’s, who said ICC probers would be barred from entering the country.

This time, Remulla has said ICC probers won’t be barred, but would not be recognized as having the necessary jurisdiction to carry out a probe.

We can surmise that what this means, among others, is that ICC probers cannot interview public officials or look into classified documents, including one that supposedly directly incriminates Duterte – unless such a document, if it exists, is leaked to the probers, or is willingly provided by the government.

But the ICC might be able to interview private individuals who believe that people killed in the war on drugs cannot get justice under the country’s judicial system.

Simply ensuring that such people will not face any form of harassment or intimidation will earn points for Marcos, even if his government officially refuses to cooperate in the ICC probe.

The chief presidential legal counsel, probably thinking the country is still under martial law of which he was an architect, wants ICC probers arrested if they enter the country.

At least there are still adults in the room; the PNP chief has issued no such warning, and has merely urged the ICC to respect Philippine sovereignty.

BBM has vowed that the Marcos reboot will be a much better version. How his administration deals with the ICC probe will be a test of this promise.