ICC may use Duterte’s statements against him

The International Criminal Court is “bulls**t.” It is composed of “white people” from “colonizer” countries… “Why would I defend or face an accusation before white people?” … How [am I supposed] to get justice there?”… “I will readily face a court, being accused in a Philippine court, before a Filipino judge.”

These were among President Duterte’s remarks last Monday in a televised address. He was reacting to the request of the then outgoing ICC prosecutor, Fatou Bensouda, to the court’s Pre-Trial Chamber for authority to start an investigation on alleged crimes against humanity of murder committed in his administration’s bloody “war on drugs.”

In the course of her preliminary examination on the drug war in the first nine months of Duterte’s presidency, Bensouda said in a 57-page report, she found “reasonable basis to believe” that the crime against humanity of murder “was committed as part of a widespread and systematic attack directed against a civilian population pursuant to or in furtherance of state policy.”

Duterte could only reply with an invective: “They say I killed them. I don’t know if it is true or not. It’s just a rumor. But how do I go about this? That’s why this ICC is bulls**t.”

Four types of crimes – genocide, crimes against humanity, crimes of aggression and war crimes – are tried by the ICC, the “court of last resort.”

Cursing it was vintage Duterte bluster; he even said he wants to slap the judges. However, the fact is that the court has 18 judges; at least 10 of them are non-white – Africans, Latinos and Asians. He is wrong to claim that the ICC is composed of white people from colonizer countries.

The judges are elected for nine-year terms by the 123 ICC member-states constituting the governing body, called the Assembly of State Parties. The prime criterion to be elected is for one to possess “the qualifications required in their respective States for appointment to the highest judicial offices.”

A member-nation can have only one judge at any time. The 18 seats are distributed as follows: 5 from Western Europe and North America (the US is not an ICC member); 4 from Africa; 3 from Latin America and the Caribbean; 3 from Asia-Pacific and 3 from Eastern Europe.

Mark this: until last month, a Filipino sat as ICC judge – former UP College of Law dean Raul C. Pangalangan. He was a Philippine delegate to the Rome Conference that deliberated on and drew up the Rome Statute, a treaty establishing the ICC, in 2002. The Philippines ratified the treaty in 2011, when it was already in force. However, in May 2018, President Duterte withdrew the country’s ratification of the Rome Statute in protest against Bensouda’s preliminary examination. The withdrawal took effect a year after.

The late former senator Miriam Defensor-Santiago was the first Filipino ICC judge. Elected in December 2011, she resigned on June 3, 2014 due to the lung cancer that soon shortened her life. Pangalangan was elected on July 13, 2015 to take over Defensor’s remaining six-year tenure. He retired from the court last May 16.

Reflecting on his mandate, Pangalangan wrote:

“Impunity leaves a gap in our moral universe where persons can commit horrendous crimes and still move about casually, unchastised and unpunished, as if they owed no debt to their victims or the world. The ICC closes that circle. It has been a distinct honor for me as a Filipino to have taken part in its noble work. Much remains to be done, and I am confident that the next generation of ICC advocates will continue to keep that dream alive.”

Filipinos will agree with Pangalangan, deeply bothered by the unresolved long-standing impunity in our country, especially with regard to human rights violations in the successive counterinsurgency campaigns waged by every administration since Marcos, and Duterte’s war on drugs.

Duterte’s penchant for making reckless public statements tending to incriminate himself appears to have provided Bensouda substantive documentary – written and visual – evidence to back her findings, which she asked to be probed much more extensively by her successor.

In his second commentary on the Bensouda report on Thursday, retired Supreme Court Senior Associate Justice Antonio T. Carpio noted citations of several Duterte statements “recorded on camera by media and shown on various television networks worldwide” as well as statements reported in print media.

Samples: In a February 2016 presidential debate, Duterte stated, “If I become president, it would be bloody because we’ll order the killing of all criminals;” in a March 2016 campaign rally, he said, “Kill them all xxx When I become president, I’ll order the police and the military to find these people and kill them.” In September 2016, he told reporters: “There are 3 million drug addicts. I’d be happy to slaughter them…”

“These statements of President Duterte are called extrajudicial confessions because they were uttered out of court and outside of custodial investigation, admitting involvement in alleged crimes (emphasis mine),” Carpio wrote. “They were, of course, voluntarily uttered by the President.”

Asking if these statements are admissible in evidence against Duterte “if it turns out that those killed in police operations were unjustifiably and systematically killed,” he wrote:

“Extrajudicial confessions are universally recognized as admissible in evidence against an accused provided they are voluntarily made and corroborated by evidence of the actual commission of the crime.” He cited two rulings by our Supreme Court, first in 1997 then in 2016, which held that “statements spontaneously made by a suspect to news reporters on a televised interview are deemed voluntary and are admissible in evidence.”

Thus, Carpio concluded, “the ICC Prosecutor can present in evidence the videos, as well as the printed publications, showing President Duterte uttering his statements on extrajudicial killings on the war on drugs.”

In Memoriam: I wish to extend my deep condolences to the sisters and other close relatives of former president Benigno S. Aquino III over his passing on Thursday. We worked together on certain issues in the House of Representatives, and despite sometimes holding divergent views, I appreciated his human decency, civility and helpfulness.

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