Prosecuting Duterte: Walk the talk

Finally, the Marcos administration is talking the talk.

I am referring to recent statements of President Marcos’ alter egos with regard to government plans on former president Rodrigo Duterte concerning his role in the killing of thousands of drug suspects during the previous administration. Executive secretary Lucas Bersamin stated that the government will be obliged to implement an International Criminal Court (ICC) warrant of arrest for Mr. Duterte if it is coursed through the International Criminal Police Organization (Interpol). On the other hand, Justice Secretary Crispin Remulla Jr. disclosed that he has created a task force to investigate the criminal liability of the former president under our own international humanitarian law. He was referring to Republic Act No. 9851, or the Act on Crimes Against International Humanitarian Law, Genocide, and Other Crimes Against Humanity, which punishes crimes against humanity through our local courts, in the same way that it’s punished under the ICC treaty.

To allay fears that the domestic investigation into Mr. Duterte’s liability may overlap with the ongoing ICC investigation, and which could cause the ICC to suspend its own probe, Remulla clarified: “We want the charges to be separate from each other. What we charge here and what the ICC charges have to be, if possible, will not overlap. Because even if we are not members of the ICC, the spirit of complementarity still applies.”

The said statements were issued after Mr. Duterte made taunting declarations when he appeared before committee hearings in the Senate and the House of Representatives. During the Senate committee hearing, Duterte mocked the Marcos administration by saying: “I am so puzzled as to why the Justice department has not yet filed a case. It has been so long … I have been killing for the longest time and until now, there is no case filed against me yet.” (Translation from Filipino to English by GMA News Online).

During the House quad committee hearing, Duterte jeered at the ICC by declaring that the “ICC does not scare me a bit, they can come here anytime … They are taking too long, hurry up, because I’m getting old and I might die soon.”

If government words are followed through with actions, there should be marching orders for prosecutors to initiate investigations on three relevant periods, with an eye to prosecuting different groups of respondents, with specific crimes for each time period.

First is the period before Nov. 1, 2011, which corresponds to the time when we were not yet an ICC member. The crimes committed during this period are outside the ICC jurisdiction. In this first period, the government should go full throttle in investigating Mr. Duterte and anyone else who conspired with him, and those who implemented his orders, to kill drug suspects. For this first period, prosecutors should investigate crimes against humanity as a domestic crime under RA 9851, from January 2010 to November 2011, which corresponds to the effectivity of RA 9851. In addition, prosecutors should investigate, for this period, those responsible for other domestic crimes (murder, illegal detention, etc.) punished under our Revised Penal Code (RPC).

Second is the period between Nov. 1, 2011 and March 16, 2019, which is the time when we were a state party to the ICC. Crimes against humanity committed during this period are under ICC jurisdiction. For this period, our government should investigate the liability for crimes against humanity under RA 9851 committed by mid-level respondents, especially those who oversaw the large number of killings in Quezon City, Caloocan City, Bulacan, Pampanga, Cebu, and such other places. These mid-level respondents will not, in all probability, be the subject of prosecution before the ICC because they were not the ones who created the state policy to extrajudicially kill drug suspects nationwide. With respect to this second period, however, the government should not do its investigation with an eye to prosecuting Mr. Duterte and his fellow conspirators who are the “most responsible” for crimes against humanity. To do so will overlap with, and will throw a monkey wrench on the already advance investigation of the ICC. Additionally, the government should investigate other responsible suspects for the RPC crimes they committed during this second period.

Third is the period after Nov. 16, 2019 which is the time when our withdrawal from the ICC was already effective. Crimes against humanity committed during this period are already outside of ICC jurisdiction. Our government should step in and do the investigation on the liability of Mr. Duterte and his co-principals during this period. In addition, the investigation should include an eye to prosecuting others who are responsible for RPC crimes committed during this third period.

Now, let’s sit back and watch if the Marcos administration will follow through by walking the talk.

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