[OPINION] ‘Children can’t wait’: Have the stars aligned for ICC justice vs Duterte?

International justice depends on, brilliant lawyers and diplomats sure, but also on stars aligning. And by stars, I mean political stars aligning. Some lawyers would hate that because they want to preserve the illusion that nothing about justice is political. For me, that’s a delusion.

Take it from Reed Brody, an international criminal justice lawyer instrumental in convicting Hissène Habré the former dictator of Chad and arresting Augusto Pinochet the former dictator of Chile. He said over the Asymmetrical Haircuts podcast: “To get Pinochet arrested and to have the [British] House of Lords decide, the stars have to be in a certain alignment. The Labour government had just come in. [Former British Prime Minister] Tony Blair was promising an ethical foreign policy.” (Pinochet’s arrest in London in 1998 on a Spanish warrant is acknowledged as pivotal to the course of international justice for decades to come.)

And these stars are local stars. The first star is a regime change – which for the Philippines seemed uncertain at first because Vice President Sara Duterte and President Ferdinand Marcos Jr ran together. Would Marcos hand over an “ally” to the International Criminal Court (ICC)?

But “uniteam” broke up very quickly. The first star is in place.

But Marcos’ public policy on ICC cooperation is wishy-washy – it’s neither here nor there. (“We will not block ICC. We will not just cooperate,” he said after former president Rodrigo Duterte taunted the International Criminal Court ICC to arrest him.)

But behind the scenes, you can surmise that all the recent developments have a go-signal from the president: the Senate and the House quad committee doubling down on Duterte, ICC investigators entering the country.)

This is a big mystery to the human rights community. This question is asked in many conversations: What’s stopping Marcos from explicitly declaring ICC cooperation? What’s stopping him from rejoining the ICC?

Here are my guesses:

1. Marcos is holding on to it for leverage. The political war is not over, and will be long. It’s good to hold on to a weapon.
2. There’s not enough polling data to tell him that Filipinos (aka the voters he needs to win over for the dynasty’s longevity) support an ICC justice.
3. It’s not to his family’s interest to support an international justice. Because if he does, then he would be conceding that international judgments against his father, him as the court-appointed heir and even sister (mostly in the United States) should be enforced.

Marcos’ PR campaign is an opportunity

But the good news to the human rights sector is that there are stars lining up, and it’s a moment to be seized. Marcos is bidding for a seat at the United Nations Security Council, and to clinch this he must show his adherence to human rights.

The global publicity campaign is also one factor, because Marcos is on a road show to convince the world that he’s nothing like Duterte, and that he’s not a dictator. He’s trying to do this without admitting to or apologizing for martial law atrocities. And it’s working – I’ve lost count of the many side conversations I’ve had with members of the international community telling me a variation of, “but your President is a good guy, right?” This is sometimes reflected in public statements.

This is an opportunity that must be grabbed — Marcos must be called to walk his talk, and the international community must pressure him. The methods to do so, of course, are up to the discretion of the lawyers, activists, and even politicians who are best in strategizing on behalf of victims. And I see that they are strategizing. Even if the House quad committee insists that they are not doing these hearings for the ICC (a point I can also debate, to be honest), victims’ groups still show up. They go to Batasan and wait for an entire day, up to the evening, only to be called to speak for 5 minutes if at all.

ICC-accredited assistant counsel Kristina Conti described it to me once as: “We don’t put all our eggs in one basket, [but] we’re putting some of our eggs here.” When I wrote that article in June, I did not have much hope on the hearings of the committee on justice, because it started very wonky and unpromising. It turns out their eggs hatched some – the quad committee recommended to charge Duterte of crimes against humanity.

Mix of local and international

The quad wants to use the International Humanitarian Law (IHL) to go after Duterte, which is a domestic law. One can go the Leila De Lima route and invoke the IHL to cooperate with the ICC, or go the quad committee route and pursue a domestic trial. But even the second option does not entirely remove the ICC.

As retired Naga judge Soliman Santos, himself a human rights lawyer before joining the judiciary, told me: there is a provision in the Rome Statute (Article 18.3) that allows the ICC prosecutor to defer to a domestic process first, and then review it later if that process is genuine or not.

“If domestic investigation and prosecution proves to be ineffectual or even sham, there is still the safeguard option of reverting to any deferred or suspended ICC proceeding,” retired judge Santos said in the essay he sent me.

Case studies of successful international cases always involve playing the local game well. Last year when I was in London attending the screening of the movie Argentina 1985 about their own martial law in the 80s, I got to ask Luis Moreno Ocampo who was part of the prosecution team that scored local convictions against their generals. Ocampo went on to become the first ever prosecutor of the ICC, so I thought he’d have a good insight into the relationship — or conflict — of local and international justice.

We never had a martial law trial like you, I told him. Ocampo told me: “The battle for justice is permanent, you never end. You have one dictator, he’s gone, and you have a new dictator who’s coming and you get to keep fighting. You have to keep learning and understanding how to improve. In Philippines for instance, Duterte wants to control drug dealers and organized crime is a complicated problem. We need a new thinking how to control organized crime, at the same time not allow that the people proposing kill orders be the heroes.”

“You’re not alone in the Philippines now, the ICC is supporting you,” said Ocampo.

‘Children can’t wait’

Indeed, the ICC investigation has not only spotlighted the bloody war on drugs, it has also helped move along a lot of domestic processes. Just recently, the Department of Justice (DOJ) created a task force to investigate drug war killings and the hope is that it will do better than the fluke that was the task force before that, created during Duterte’s time to ward off the ICC – a “ruse” as human rights groups liked to call it. (The Duterte-time task force had dismal results after four years, closing most of the cases without a criminal investigation.)

But if the stars need to align, the stars in The Hague where the ICC is based are at risk of dimming. Prosecutor Karim Khan is facing a sexual misconduct complaint. He’s investigating Russia and Israel, there are warrants out for both Vladimir Putin and Benjamin Netanyahu.

The ICC is underfunded for its mandate. Where is the Philippines in its priority? Does the president of a small nation in the Asia Pacific matter when the ICC’s very existence might just depend on whether they can get either Putin or Netanyahu? (Important to note that at this stage of the Philippine investigation, no one has been named a suspect yet.)

So, have the stars aligned to get an ICC justice against Duterte and the bloody cops? Or do some stars still need to align in the Netherlands?

I’ll end with these quotes.

First, that “children can’t wait,” said the Philippine delegation to the recently concluded Assembly of States Parties (ASP or member countries that fund the court).

“Every day of inaction aggravates the harm, robbing survivors and families of closure, healing and peace. Every day of inaction further emboldens perpetrators and puts children, young people and the victims’ families at risk and grave danger,” said the statement of the Philippine Coalition for the International Criminal Court (PCICC), Amnesty International Philippines, CenterLaw and Network Against Killings in the Philippines (NAKPhil).

“Justice delayed at the ICC will reverberate far beyond borders. It will diminish hope,” said the delegation.

Take it from Mary Ann Domingo whose husband and son were killed by police officials in 2016. When she watched Duterte at the quad committee, she said: “Sa bandang huli parang talo pa rin kami.” (In the end, it seems we were still the losers.) – Rappler.com

For more stories on the ICC investigation into the war on drugs, read these:

• ICC’s nearing next move on the Philippines: A mix of hope, reality check
• Philippines’ lawyer at ICC: ‘A good defense is part of justice’
• EXPLAINER: ICC ruling a win for victims, also opens options for PH gov’t
• [WATCH] EXPLAINER: The Philippines’ case at the ICC
• ICC prosecutor requests to talk with Philippine officials ‘under suspicion’