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Lamboloto - Conflict in Jurisdiction
Lamboloto - Conflict in Jurisdiction
Graduate Studies
School of Public Affairs and Governance
Conflict in Jurisdiction: Duterte’s Drug War & the International Criminal Court (ICC)
Introduction
This work aims to briefly discuss key perspectives on whether the International Criminal
Court has a jurisdiction over Duterte and grant a warrant of arrest for his “crime against humanity”
given the country’s withdrawal from the Rome Statute in 2018 during the Duterte administration.
As can be known, there is a growing polarity in public opinion concerning the validity of the ICC’s
investigation of Duterte’s drug war and much more, the warrant of arrest that has been rumored to
be released in June or July of 2024. The ultimate question would clearly be the authority of the
International Criminal Court to make an arrest despite the working justice system of the Philippine
Government. This is, in fact, the position of the incumbent President Ferdinand “Bong-bong”
Marcos Jr. Despite recent political bickering with the former President Duterte, the Marcos
administration remain resolute in its take that the ICC does not have the jurisdiction to make an
arrest as the country has a working “judicial system and law enforcement mechanisms”.
(Mangaluz, 2024) Yet, this statement was published in mid-February of 2024. With certainty, there
has been developments with the stance of the current administration. On a recent interview with
the Department of Justice spokesperson, the shift in tone concerning the ICC interference in the
country was made apparent. From a categorical statement of not letting the ICC interfere with a
working legal system, the Marcos administration is currently considering the pros and cons of a
re-entry to the Rome Statute. (Bautista, 2024) An outside observer, at this critical point, would
question the seeming sudden changes in political atmosphere as a subtle threat to Duterte’s
campaign against the proposed economic revisions of the 1987 Constitution.
Given the political rift between the Dutertes and the Marcoses in the past months, the
consideration of an ICC re-entry could be seen as a political vendetta devised conveniently through
a proxy. This is precisely why the attack on both sides are coming from different fronts. On
Duterte’s camp, BBM is accused of expanding his hold to power through the Charter Change, a
claim that the Marcos camp denies as the cha-cha only aims to revise and liberalize the economic
provisions of the 1987 Constitution. On Marcos’ camp, the potential re-entry of the ICC which
would allow it to arrest the former President Duterte could be seen as an attempt silence the Duterte
camp which, in turn, could alienate the administration from the other half of Uniteam supporters.
Though the recent discourse concerning this political rift is a potent jumping board for this study,
it will not cover the turning points of this unfolding political narrative. This work would simply
investigate the question of whether the ICC has a jurisdiction over Duterte’s human rights
violations. If not, what would be legal options of the current administration? In order to explore
these points, this work would be guided by the following questions: 1) What are findings of the
ICC’s investigation? 2) What are the conditions for the ICC to have a jurisdiction? 3) Should the
Marcos’ administration re-enter the Rome State and what would be the consequences of such
paradigm shift?
Methodology
This study will utilize descriptive-analytic method in exploring key social and political issues in
the question of ICC jurisdiction in the Philippines and the government’s possible re-entry to the
Rome Statute. In order to do this, this study will examine statements and positions from the
principal stakeholders, i.e., Marcos’s administration, Duterte’s camp, the ICC and other relevant
literature concerning the authority of the Rome Statute to interfere on the matters of international
crimes or crimes against humanity.
Results and Discussion
A. International Criminal Court Investigation
On a report released in the 14th of June 2021, the Office of the Prosecutor, Ms. Fatou
Bensouda and Mr. James Steward provided a comprehensive review of the WoD or War on Drugs
implemented by the Philippine President Rodrigo Duterte. Being a member state of the ICC since
November 11, the court has the prerogative to execute a probe to the reports of human rights abuses
perpetrated by the Duterte administration. The argument of the prosecution to justify the
investigation was that there were indeed grounds for the ICC to interfere given the systematic
participation of the Duterte administration to extrajudicial killings. The number of civilian victims
that are related to the ‘Oplan Tokhang’ between 2016 to March 2019 ranges from 12,000 to 30,000.
(Kovacs, et al., 2021) As can be known, the presidential campaign of Rodrigo Duterte who was
then a Mayor of Davao City emphasizes the need to eliminate the drug menace. Though the actual
numbers of drug users in the Philippines only amount to 1.8 million Filipinos, the numbers seem
to have been inflated to four million – a narrative that sets an alarm to the general public which
Duterte picked up when he promised to eradicate it within six months. Illegal drugs being one of
the pathologies that haunts Philippine society, Duterte’s campaign for the presidency was backed
by an astonishing number of voters in the 2016 presidential elections. Though the alleged numbers
of extrajudicial killings started in 2016, the violent and brutal approach of Duterte towards illegal
drugs in Davao City as the mayor has already killed at least a 1,000 people – a model that he
envisions to upscale nationwide.
Bensouda’s report, moreover, delves on the role of the police in the alleged killings of both
illegal drugs users and pushers. The primarily claim is that the killings are all justified as the
personalities who are tied to the drug trade during the encounter either retaliated which puts the
lives of the law enforcer at risk which warrants an expeditious response – one fatal shot or ran
away from authorities instead of surrendering. Though the anti-illegal drug war made an initial
impression that it also intends to rehabilitate the users or pushers who surrendered to the ‘Oplan
Tokhang’, the rehabilitation lacked the full autonomy of individuals. (Lasco, 2022) Intuitively, to
undergo rehabilitation necessitates a degree of voluntariness from the user which makes the
process authentic and not simply an alternative from death. An investigative inquiry by Health and
Human Rights Journal asserts that the ‘rehab’ option for the drug dependents is the safest
alternative from being killed by the police. This shows that though the drug war provides a choice
of salvation to drug dependents, it is devoid of personal voluntary submission. The report further
shows in detail various instances of police abuse and the disproportionate measures during the
operations. While not all killings are perpetrated by the Philippine police, there are evidences that
points to the involvement of the administration to hiring vigilantes from within the law
enforcement to take down ‘hardened criminals’ and drug pushers.
Another point that Bensouda mentioned would be the affirmation of these claims founded
on Duterte’s public statements. Though public utterances are often politically-driven given the
strategy of Duterte to utilize crass rhetoric to elicit a message of threat, in this case, against drug
pushers, he could still be blamed for the punitive direction of the anti-drug campaign. For one,
Duterte ensures the police that they can ‘shoot to kill’ those who are resisting arrest. There are also
threats that those who will be caught will be used as ‘fatteners’ to the fish of Manila Bay. As the
report recounts, Duterte warns the drug dependents who surrendered “If you are still into drugs, I
will kill you, don’t take this as a joke. I’m not trying to make you laugh, son of a bitch, I will really
kill you”. (p.46) In turn, the attitude towards drug dependents from the vantage point of the
administration and its agents, elicits a message that the drug users and pushers are no longer
human. As the former Justice Secretary Vitaliano Aguirre II claims, “the criminals, the drug lords,
drug pushers, they are not humanity”. (p.47)
Tejada, A. P. (2016, February 20). Duterte vows to end criminality in 3 months. Philstar.com.
https://www.philstar.com/headlines/2016/02/20/1555349/duterte-vows-end-criminality-3-
months
Conde, C. (2021, October 4). Duterte is worried about the ICC. He should be. Human Rights
Watch. https://www.hrw.org/news/2021/10/04/duterte-worried-about-icc-he-should-be
Pangalangan, R. A. (2023, September 29). The Elephant in the Courtroom: ICC Temporal
Jurisdiction Over the Situation in the Philippines. Just Security.
https://www.justsecurity.org/88924/the-elephant-in-the-courtroom-icc-temporal-
jurisdiction-over-the-situation-in-the-
philippines/#:~:text=Its%20withdrawal%20shall%20not%20affect
Mangaluz, J. (2024, February 20). Marcos adamant: No ICC probe into PH war on drugs.
INQUIRER.net. https://globalnation.inquirer.net/226283/marcos-on-icc
CEDTyClea. (2024, May 8). INTERPOL, ICC cannot nab Duterte based solely on a warrant —
experts. BusinessWorld Online. https://www.bworldonline.com/the-
nation/2024/05/08/593760/interpol-icc-cannot-nab-duterte-based-solely-on-a-warrant-
experts/#:~:text=LAW%20and%20diplomacy%20experts%20said
Bautista, J. (2024, May 9). DOJ studying PH reentry to ICC, other legal options.
INQUIRER.net. https://newsinfo.inquirer.net/1938651/doj-studying-ph-reentry-to-icc-
other-legal-options