HOWIE SEE IT: The ICC, Bensouda, and Duterte

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By Atty. Howie Calleja

Just last week, International Criminal Court (ICC) Prosecutor Fatou Bensouda announced that she had requested judicial authorization to proceed with an investigation into President Duterte’s “War on Drugs” (WOD). It can be recalled that, in late 2020, a preliminary examination from Bensouda’s office revealed that there was a reasonable basis to believe that crimes against humanity had been committed in connection with the WOD. If anyone is doubtful as to what started the ICC’s interest in the case, PDEA had then reported upwards of 6,000 deaths in connection with the WOD policy, and multiple international human rights groups estimated that as many as 27,000 Filipinos have been victims of extra-judicial killings. Clearly, the thousands of lives taken without due process should be of concern to the entire nation. However, since the ICC has begun looking into the alleged crimes, the administration has repeatedly denounced the court’s “interference”.

We’ve heard from those close to the President, and even from Malacañang itself, that this is not an issue about international crimes – but rather this is a dreadful attack on our sovereignty. Senator Go is the latest to announce that international courts should not intervene in “internal affairs” of our country. How shameful that this is the messaging we are giving to our allies abroad – that we are above the jurisdiction of international courts and our international obligations mean nothing. It seems that the administration is more appalled by the concept of an international body invoking human rights for Filipino citizens, than by the thousands of lives lost without their day in court.

Even to describe these issues as merely “internal affairs” is baffling. The WOD has killed tens of thousands of people – who are not proven criminals – and there is still an attempt to brush it off as a few isolated cases. This is not merely a domestic policy, this is an human rights crisis in a democratic nation that has a rippling effect on the entirety of the international community; with a State ignoring its obligations to its own people, what hope do we have in times of conflict? Will they still abide by international limits of warfare? How can we ask other countries to uphold their international obligations to us?

When we contemplate what crimes were committed, as alleged by the ICC, such “crimes against humanity” can include both murder and enforced disappearances. It is important to note that these are non-negotiable rights; human rights, after all, are not bestowed upon us by this administration. They are inherent and universal and the State’s job is merely to implement these rights, and to ensure commitment with the treaties agreed to. This is not merely a matter of “internal affairs”, these are imprescriptible rights granted to every individual Filipino and can be protected by the international courts. With or without the assistance of domestic courts, and especially when the magnitude of such crimes are so wide-scale.

For those that believe international obligations have no basis in our Philippine setting, may I remind them that, we have even applied it in times where Filipinos were in between constitutions. In the interregnum period, a time after the 1973 Constitution and before the Freedom Constitution of 1986, Filipinos had no “bill of rights” – as this was a post-EDSA era. When there were questions on the rights of Filipinos our courts could no longer look to the constitution – rather they relied on international treaties and those rights granted to all individuals. This only underscores the relevance and importance of these obligations to our society; we must look at these rights as the “gold standard” of our society and continuously strive to meet them.

To undermine the ICC is truly a dangerous game. By stating that international courts have no business in internal affairs is eerily similar to China’s rallying call during the West Philippine Sea ruling – one that obviously ended up in our favor. How interesting that we are picking and choosing when international courts may intervene, as issues of territory are to our benefit but matters of life or death are apparently an insult. Time and time again we’ve heard that there is “nothing to Fear if you have nothing to hide” straight from the mouth of our President. The hypocrisy of it all is that, exactly one year ago, this was used to justify the Anti-Terrorism Act. Now we chant the same – President Duterte, if you have nothing to hide from the ICC you have nothing to fear.

Even then, the two situations shouldn’t be compared. The Anti-Terrorism Act fears came from constant red-tagging and threats to life, liberty, and security. President Duterte’s concerns are not fears for the individual rights of Filipinos, it is only one man’s ego. It is time now to put one man’s ego aside and uphold the general welfare of our country. Over the past five years, Filipinos have had nothing to hide, but have much to fear – it is time now to stop living in fear. It is my hope that the ICC can shed light on those Filipinos who have lived in the shadows of fear for far too long. Let them finally be heard.