“They’ll never take me alive,” declared Philippine President Rodrigo Duterte in early August, responding to the possibility of being brought to the International Criminal Court (ICC) to face allegations of human rights atrocities under his regime.
The ICC announced in December 2020, through a report from ICC Prosecutor Fatou Bensouda, that there was evidence of “crimes against humanity” in the Philippines. Bensouda’s report points to the war on drugs launched by the Duterte administration at the start of his term in 2016. She stepped down in June this year, parting by saying that she had preserved evidence for her successor in anticipation of a full-blown investigation of extrajudicial killings in the Philippines.
The Philippine National Police estimate that there have been around 8,000 victims of the drug war; however civil society groups tally the casualties at around 30,000.
Talk of Duterte possibly being indicted by the ICC has heated up since then, with the president even daring the court during his State of the Nation address in July to record all his threats against his enemies. However, the chances of Duterte actually being sent to jail — despite an admission of ordering the extrajudicial killings and masterminding the whole devastating approach to illegal narcotics — is not so straightforward.
In March 2018, the Philippines officially notified the ICC of its intent to withdraw from the organization and has subsequently barred anyone from the court from directly interfering in domestic affairs. Moreover, Duterte holds dominion over most of the Philippine government, including a wealth of allies in Congress. How will the ICC proceed, then, when an investigation looks increasingly likely? Will human rights workers and lawyers in the Philippines play a part in all of this? What would it take to put Duterte behind bars?
Catching a Criminal
National human rights group Karapatan was one of the advocacy organizations that worked with the victims of the drug war in filing a complaint before the ICC. Cristina Palabay, the group’s secretary general, hopes for the best case scenario, wherein a formal investigation takes place sooner rather than later. She stresses that even at this point, the political pressure created by the ICC’s involvement is a huge step in isolating and exposing abusers like Duterte. She told The Diplomat that “the engagement in the ICC process by victims and their kin sends a strong message that perpetrators of such crimes against humanity in the Philippines should not only be held accountable — the crimes they committed should never be repeated.”
Attorney Ephraim Cortez of the National Union of People’s Lawyers or NUPL, another group that aided in the crafting of the complaint, explained that this “development pierces the armor of invincibility and shows their vulnerability. Legally, the request of the Prosecutor bolsters the claim of the victims that crimes against humanity and similar crimes have been committed and that their relatives were among the victims of these atrocities. The request for an investigation will usher in the beginning of the formal investigation, which may later on lead to the issuance of a summons, and even a warrant of arrest, against Duterte and those names listed in the report of the Prosecutor.”
Beyond political posturing, however, Presidential Spokesman Harry Roque downplayed an impending investigation. He said that the ICC will have difficulty gathering evidence. The institution has been barred from the country and the state refuses to cooperate in any capacity.
Attorney and former congressman Neri Colmenares is an expert on international human rights law. He has also been a consistent figure in the opposition against the Duterte government and its many attempts to revise the constitution. He explained to The Diplomat that because an investigation is likely on its way, the prosecutor will have to come to the Philippines and investigate these allegations. But because this will not be allowed by the state, there are other options.
“They can communicate digitally and in some cases, a third-party country can be used as a point to meet up,” he said. Another possibility is a pre-indictment warrant when evidence is so overwhelmingly undeniable. “It is possible under certain rules of the ICC to issue a pre-indictment warrant, in some special circumstances. An indictment comes after an investigation. But for example, if alleged crimes continue, the accused can be taken into custody. It can also be issued to stop the destruction of evidence.”
Last month, the Supreme Court in the Philippines clarified that despite the country withdrawing from the ICC’s Rome Statue, effective in March 2019, all crimes perpetrated before that date were eligible to be investigated. The ruling came as a blow to the regime, which is losing allies in its bid to defend itself from pressure among the international community. “It is a strong indication that at least one branch of government decided to uphold international human rights norms against the executive branch, which has thoroughly eroded whatever vestige of democracy and freedoms that we had,” commented Palabay.
But even if a warrant is issued for Duterte’s arrest, who will bring him to justice? What body can drag him to jail? The ICC has no peacekeeping force of its own and relies on the law enforcement of its member states, of which the Philippines is no longer one. The ICC may not recognize immunity for heads of state, but the practical matter of putting the cuffs on Duterte should he be indicted remains.
Colmenares said, “If he travels to a country willing to execute the warrant then he can be arrested. He’ll be safe in China, for example; it depends on the willingness of the country presuming that a warrant is issued.” He added that even states that are not members of the ICC can cooperate in executing an arrest order.
Another possibility hinges on a wholly political scenario, essentially requiring the engagement of the nation. The ICC decision comes crucially at a time when Duterte’s term as head of state is concluding. Presidential elections are set for May 2022.
Incumbent on a Nation
Duterte is looking to run for vice president in tandem with either his daughter, Sara, or Senator and closest ally Christopher “Bong” Go vying for the top spot on the administration’s electoral ticket. While the immunity held by heads of state does not matter in the eyes of the ICC, a win for Duterte and his camp in various positions besides the executive can ensure the Philippines’ non-cooperation with the ICC for the foreseeable future.
“The danger here is Duterte will try to use everything, all the goons, guns, and gold, to win. On the other hand, it will also signal weakness on his part. His alliance [with] many politicians relies on the strength he exudes, which will be seriously debilitated,” noted Colmenares. Colmenares argued that Duterte’s political strength has already been undermined and damaged by the ICC. Moreover, at 76, the president’s health has been called into question, although his staff insists that he is very fit.
Depending on the overall result of the elections, there could be a tug-of-war between political factions in the event that the ICC produces a warrant. There will be those wanting to bring Duterte to justice and those shielding him from prosecution and incarceration. But the uncertainty of it all already damages his electoral hopes, said Colmenares. In that sense, he commented that “an indictment will contribute to Duterte becoming a lame duck. And why vote for someone who may not last?”
Besides, Cortez of the NUPL noted, that there are avenues to be explored besides the ICC. “The victims can seek accountability through impeachment. Other than that and the ICC, the other remedies are more political, meaning through actions that will expose and isolate Duterte politically.”
The situation is stacked in a particular sequence, so that any chance of convicting and punishing Duterte for his crimes also requires denying him and his cohorts another shot at ruling.