On the ICC and Duterte’s ‘sensitivity’

On April 24, lawyer Jude Sabio submitted a “communication” to the Office of the Prosecutor of the International Criminal Court in The Hague, seeking an investigation into crimes against humanity allegedly masterminded or committed by President Duterte and 11 other officials. We do not know what will happen to Sabio’s action; the procedures are detailed for all to see or study on the ICC website, but for the Philippines, this is a case of first impression.

For some members of the political opposition, the ICC might also prove to be the court of last resort. The impeachment complaint Magdalo party-list Rep. Gary Alejano filed against the President was disposed of in a matter of hours; there was no “prejudicial questions” maneuver to create at least the semblance of deliberation (as in the first impeachment complaint filed against President Gloria Arroyo in 2005). While ICC prosecution does not require the state that is party to the Treaty of Rome to exhaust all remedies (the ICC prosecutor has “motu proprio” powers), it can also step in when “the State is unwilling or unable genuinely to carry out the investigation or prosecution.”

While the President has defended Alejano’s right, after his impeachment complaint was rejected, to seek the ICC’s help (“This is a democracy,” Mr. Duterte said), he has also adapted to the new reality being shaped by the original Sabio communication. Or at least he did, for a couple of weeks.

On at least a couple of occasions after the ICC filing on April 24, the President used unequivocal language to deny that he had personally killed anyone. On May 4, for instance, he regaled members of the Philippine Orthopaedic Association with the usual mix of unscripted asides and calculated attacks. A lot of laughter and applause punctuated his keynote speech.

Then he said: “For God’s sake, until now I have not killed anybody. I will kill you. Si ‘I’ did not kill anybody until now …. I said, ‘I will kill you.’ I have never killed anybody. But my message to the law enforcement was very clear: that if their life is in danger or placed in jeopardy, go ahead, you are not supposed to sacrifice your life.”

And then again, after repeating his assertion (to laughter and applause) that he will pardon himself when he leaves office: “I’m sure that they will be filing charges against me. For what? I said, I will kill you. I have never until now, killed anybody. I never said I will order the police or the military to kill you, no.”

(I used the official transcript prepared by the Presidential Communications Operations Office.)

If I am not mistaken, this represents a break in Mr. Duterte’s decades-old retelling of his iron-fist policy. He has always said or suggested that he had killed some people himself. He has done so on his radio/TV program when he was mayor. He has told reporters covering his presidency that in Davao he “used to do it personally.” He has even doubled down on this assertion, claiming that “It happened. I cannot lie about it.”

When he visited the Inquirer in August 2015, he gamely accepted his deadly reputation, at one point repeating details of what he called his first encounter with a kidnap-for-ransom gang. But when pressed, by myself and others, about whether he did in fact pull the trigger in that particular encounter, he responded in so many words: I have been a prosecutor for many years; I know better than to tell you directly.

I can understand; when it comes to murder as policy, plausible capacity is as important as plausible deniability.

Let’s be clear: He has always—always—denied killing any children, or anyone sitting helpless or in a prone position. (It’s not part of the code of machismo.) He has denied giving orders to kill specific people. Or, interestingly enough, “plunderers.”

But his post-ICC comments are new. Do they show that, despite his sensitivity to criticism, especially criticism of his alleged human rights violations, he can change tune and perhaps even tack?

Within two weeks after the filing he was back to his old expansive self. On May 18, inaugurating a new bridge in Tagum City, he said in Filipino: “What I did not get from my father was his patience. My father did not kill, not even rats. In my time, I did not kill rats, but people.”

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