Unfortunate but not unexpected

By Artchil B. Fernandez

One illiberal legacy Du30 left to his successor is the relation of the Philippines with the International Criminal Court (ICC). In March 2018, Du30 ordered the withdrawal of the country from ICC after its then chief prosecutor Fatou Bensouda announced a preliminary examination on the Philippine situation on the thousands of deaths related to Du30 “war on drugs.”

Du30’s decision was self-serving. He was trying to stop the preliminary examination and protect himself from possible prosecution. The withdrawal however failed to stop the preliminary examination since Article 127 of the Rome Statute allows the ICC to conduct criminal investigations and proceedings before the withdrawal to take effect which is a year after the announcement.

The probe on Du30’s slaughter of thousands of Filipinos in his bloody and gory “war on drugs” moved to the second stage after ICC in the middle of last year authorized a full investigation. “The Pre-Trial Chamber I of the International Criminal Court (“ICC” or “Court”) granted the Prosecutor’s request to commence an investigation in relation to crimes within the jurisdiction of the Court allegedly committed on the territory of the Philippines between 1 November 2011 and 16 March 2019 in the context of the so-called ‘war on drugs’ campaign,” the ICC order stated. The investigation though was suspended before the year ended upon the request of the Du30 regime.

In June this year, the ICC Prosecutor Karim Khan has asked the pre-trial chamber to resume its probe, and gave the Philippine government up to September 8 to comment on this resumption. “I have concluded that the deferral request by the Philippines is not warranted, and that the investigation should resume as quickly as possible,” Khan said in a statement.

Resigned to the likely continuation of the investigation against him, Du30 is exploring the possibility of seeking a temporary restraining order (TRO) to stop the ICC from arresting him.

The impending resumption of the investigation forced the new administration of BBM to tackle the thorny ICC issue. An Inquirer editorial (8/2/22) accurately captures BBM’s predicament. “Cleaning up the Duterte administration’s bloody mess without getting tainted by it is the quandary that the Marcos Jr. administration finds itself in. Would it cooperate with the ICC and risk antagonizing the constituency of Vice President Sara Duterte and her father by calling attention to past human rights violations, or ignore the ICC altogether and reap global repercussions?”

It is also a test to the sincerity of the Marcos family. How BBM handles the ICC question reveal if the Marcoses will use their comeback as a rare opportunity to truly redeem themselves or it will be business-as-usual (BAU) for them. It appears the answer is the latter rather than the former.

“No, the Philippines has no intention of rejoining the ICC,” BBM declared this week. The decision of BBM is unfortunate but not unexpected. As presidential aspirant, BBM said he will not allow the ICC to conduct investigation on Du30’s illegal drug’s war arguing that “we have a functioning judiciary, and that’s why I don’t see the need for a foreigner to come and do the job for us. Our judicial system is perfectly capable of doing that.”

The justice system in the country does not work particularly to the victims of the “war on drugs.” The war had taken 6,252 (as of May 31) lives, official police record shows, but human rights groups estimated that the death toll is between 11,000 to 30,000. Of the thousands of cases of killings, only one, that of Kian de los Santos, led to a conviction. Only 20 cases are pending at regional trial courts and 70 cases are under investigation by either the DOJ or the Ombudsman out of the thousands.

The ICC is the only hope of the thousands who perished in Du30’s mad rampage. But BMM chose to ignore the killings and instead feigned blind to the carnage. He purposely forgot that he was one of those who made it possible for the Philippines to join the ICC.

As senator, he voted to ratify the Rome Statue. “Ratification of [the ICC treaty] signifies Philippine commitment to human rights and is our contribution to an effective international criminal justice system,” BBM said in 2011 upon signing the ratification of ICC treaty. It is obvious BBM had a patently intentional amnesia.

The reversal of position is the clearest indicator of BBM’s insincerity and deceit. One subject that was missing in BBM’s first state of the nation address (SONA) is human rights and social justice. Not a word was said on this topic.

BBM and his family are allergic to human rights since the dictatorship of Marcos senior committed horrendous human rights violations. In 1992, a Hawaiian jury found Marcos senior guilty of human rights violations and awarded 9,539 Filipino human rights victims almost $2 billion. On February 3, 1995, the federal district court entered final judgment in the class action against the Marcos Estate.

Refusing to re-join the ICC despite voting to join the tribunal earlier shows BBM is devious and deceitful. His earlier decision was only a publicity stunt designed to project a positive image but now that he is in power, his true color came out. He turned his back on his words with ease once he achieved his ultimate goal. Truth is human rights never exist in his vocabulary.

BBM and his family missed a golden opportunity to genuinely redeem themselves. Had BBM stuck to his first position and re-joined ICC, Filipinos and the international community may have given him and his family a second look. However, being on the wrong side of history it seems is already part of a Marcos habitus.