Duterte Senate testimony legally a ‘super disaster’

Take it from an international law expert. Former president Rodrigo Duterte’s admission under oath on Tuesday – that he had a “death squad” for illegal drug users and “other criminals” – may be used against him by the Philippine courts and the International Criminal Court (ICC).

Duterte’s admission, made at the Senate Blue Ribbon subcommittee hearing, allowed him to defend himself politically, conceded Antonio Gabriel La Viña, who is currently a member of the Permanent Court of Arbitration in The Hague.

“He made a lot of political points because he controlled his allies, he had drama. So maybe his die-hard supporters were really enthralled,” said the former dean of the Ateneo de Manila University law college.

“But, substance-wise, it was a disaster, legally speaking,” in facing the ICC and Philippine courts. “This is just like a confirmation of everything he said before, encouraging basically extrajudicial killings,” La Viña told the Business Mirror, which sought his reaction to Duterte’s testimony.

Since 2017, the ICC has been investigating the “crimes against humanity of murder” in the context of the “war on drugs” campaign, started in the latter part of Duterte’s 20 years as mayor of Davao City until he was elected president in 2016. He had promised to end the illegal drugs problem in the country within the first six months of his six-year term in office.

The ICC probe covered the period from Nov. 1, 2011, when the international court gained jurisdiction over heinous crimes under the Rome Statute, until March 16, 2019. (The Rome Statute is the international treaty that created the ICC, which came into force in Aug. 20, 2011.)

The Philippines, whose delegation campaigned hard to establish the ICC, was a signatory to the treaty. But after the ICC chief prosecutor concluded a preliminary examination on his “war on drugs,” finding grounds to recommend a formal investigation, Duterte arbitrarily withdrew the country’s membership in the treaty on March 16, 2018.

Under ICC rules, however, the withdrawal took effect only a year after. That gave the ICC chief prosecutor more leeway to firm up the findings of the preliminary investigation.

According to La Viña, the two elements of an offense to be considered as crimes against humanity are: when the accused state/government actor is the one doing the actual killing; and when the accused is instigating and did not put a stop to the killings despite his power to do so. La Viña believes that Duterte, based on his testimony at the Senate hearing, could be called to account in both instances.

Last Wednesday, former senator Antonio Trillanes IV disclosed that he had sent copies of the Senate hearing transcripts on the death squad and other admissions by Duterte to the ICC, as additional evidence in the charges against him of crimes against humanity. Last week, he said, he had sent to the ICC transcripts of the more extensive hearings of the House of Representatives quad committee.

“All of these would be used for the trial later on,” the former senator said. Trillanes was one of the parties who filed complaints to the ICC against Duterte stemming from his “war-on-drugs.”

The other complainants are relatives of victims of the drug-war killings, represented by lawyers from the National Union of Peoples’ Lawyers (NUPL), led by Neri Colmenares, assisted by Krissy Conti, who coordinates with ICC lawyers.

Colmenares, a former three-term Bayan Muna party-list representative in the House, earlier had intended to hand over relevant documents to the ICC. These included a so-called narcolist submitted by resource persons during the quad committee hearings to help pin down Duterte’s prime accountability in the drug war.

If the ICC finds that the narcolist is not credible, Colmenares said, “then Duterte is part of a conspiracy to commit abuses, including extrajudicial killings (EJKs).” The argument of self-defense to cover up the EJKs was rendered useless by Duterte’s admission that he had urged police officers to provoke the victims to fight back so they could then be shot dead. Saying that he was taking full responsibility for their actions meant he acted as co-conspirator to each individual police officer, he explained.

Sounding optimistic, Colmenares said that he wouldn’t be surprised if the ICC would terminate its investigation on the drug-related killings and issue a warrant of arrest against Duterte before the end of 2024.

Having monitored Duterte’s testimony at the Senate subcommittee hearings, the multi-sectoral alliance Bagong Alyansang Makabayan (Bayan) and human rights groups led by Karapatan again raised the call to make Duterte accountable and get justice for the EJK victims, of drug-use suspects, political activists and ordinary citizens.

“Listening to Duterte was like reliving the trauma when he hostaged the public with his midnight Cabinet meetings during the pandemic, and when he unleashed his Tokhang terror during his presidency,” began a statement issued by the advocacy groups.

“But we owe it – to the victims of his fake and failed drug war as well as the victims of his bloody war on dissent – to amplify the call for accountability and justice,” Bayan vowed.

The Duterte camp is desperately maneuvering to avoid the truth from being uncovered in the course of the Senate probe, it averred. “For six years, Duterte used the presidency to bombard the people with his outmoded, repressive and fascist perspectives on the drug issue to distract us from his utter failure to deliver on his boast that he would solve crime and corruption during his term of office.

Pointing out that Duterte “was able to use the Senate hearing to heap more pain and insult on those who suffered under his presidency,” Bayan asserted that the Senate subcommittee could have, and should have, given more time to listen to the victims’ testimonies.

Turning on Marcos Jr., Bayan called out his administration for its “glaring inaction” on its predecessor’s serious offenses: “At the very least, it should cooperate with the ICC in prosecuting Duterte.”