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MANILA, Philippines – The Philippines’ swift arrest of former president Rodrigo Duterte, streamed in real-time by his family and friends, was done according to normal local procedures and even within the liberal rules of a special tribunal like the International Criminal Court (ICC).
Retired ICC judge Raul Pangalangan — the first and so far only Filipino who has served on the ICC bench — said on Friday, March 14, said that the ICC considers practicality and is liberal with procedure if only to move forward with the arrest. Duterte will face initial proceedings at the ICC on Friday over alleged crimes against humanity for the killings in the war on drugs and by the Davao Death Squad.
“We have to recognize that in many ways, international criminal law and international criminal tribunals are a class of themselves….We cannot deal with this situation, with the familiar rituals and rules that we know,” Pangalangan said during a forum on Friday organized by the University of the Philippines College of Law.
The debate now, used dominantly by supporters of Duterte, is that Article 59 of the Rome Statute required that the former president be brought to a Filipino judge upon arrest. This is because the provision says “a person arrested shall be brought promptly before the competent judicial authority in the custodial State” to assess the arrest. Duterte was not brought to a judge.
Pangalangan said there’s a whole other provision in the Rome Statute that lists the rights of an accused, and “Article 59 is not a right of the accused but the duty of the custodial state,” the retired judge said.
“But if you read the statute, it is the duty of a member State, so for me, we then face the irony that those people invoking this provision are telling us that the Philippines is no longer a member of the Rome statute, and then invoking the duties of the non-member,” said Pangalangan.
Pangalangan also pointed to the case of Dominic Ongwen, a Ugandan rebel leader who was reportedly snatched by rebels in the Central Africa Republic (CAR) and turned over to US forces, before he was brought to The Hague.
“[Ongwen] was not brought to any judicial proceeding, whether it was in the CAR or the Democratic Republic of Congo, nothing of the sort. He was simply hauled off to the helicopter and brought to the ICC,” said Pangalangan.
Quoting an ICC pre-trial chamber ruling validating the turnover, Pangalangan said these “rules do not in themselves create a duty to the surrendering state to undertake any particular process upon the arrest of the person.”
The same ruling said that a burdensome process would be “a disincentive to constructive cooperation between the Court and the State to the detriment of the interests of the Court itself.”
International law’s biggest weakness is enforcement. Countries’ sovereignty will always prevail, and they cannot be compelled to do anything. That is, unless they want to — which is why cooperation is a highly valued element of international law.
‘By the book’
It does not mean though that ICC procedures are arbitrary. Joel Butuyan, an ICC-accredited counsel representing victims of the drug war, pointed out that the Rome Statute (ICC charter) emphasizes that the arrest should be according to the own laws of the Philippines.
“They substantially covered their legal bases considering the risks and exceptional circumstances of this warrant of arrest,” said Butuyan during a Rappler panel discussion.
Even the reading of Duterte’s Miranda rights was an extra special step, said Ted Te, a criminal law expert and former spokesperson of the Supreme Court.
“I would say that yes, it’s done by the book, and so I don’t think there were any irregularities in that sense. [The reading of the Miranda rights] was a step taken with great prudence just to make sure that he understood that there were certain rights that protected him, even though he is not an accused under Philippine law,” Te said in the same UP forum.
A ‘boon’ to ICC
The extraordinary character of international criminal law can be seen in previous arrests that were much more clandestine — and in the case of the Nazi general Adolf Eichmann, a capture that perhaps is more likely to be called kidnapping. Eichmann was shoved in a getaway car by Israeli intelligence officers, and then sedated on the plane so he could be brought to trial in Jerusalem.
Duterte, on the other hand, was served the warrant by a phalanx of Philippine top officials, and then spent the next 12 hours sitting on the presidential chair at the presidential lounge of the Villamor Air Base negotiating. His family, lawyers, and several other friends were there — many of whom are now the sources of footage of the sometimes tense exchanges.
Police general Nicolas Torre III, who was also responsible for capturing the accused sexual trafficker Apollo Quiboloy, said they served more food than was needed, and made sure that top doctors and top medical equipment were made available. “[We gave] more than the maximum of the maximum tolerance,” said Torre.
Duterte traveled to The Hague — on a chartered plane paid for by the Office of the President — where he was allowed to take three companions of his own choosing, one of whom was his longtime friend and personal lawyer Salvador Medialdea. Consular officers of the Philippine embassy in The Netherlands waited for the plane in Rotterdam, ready to hand them their visas and winter clothes.
Duterte, on the other hand, did not need a visa. “In other words, if you just followed the rules that we knew, former president Duterte would have been treated exactly the way the other passengers were treated,” said Pangalangan. “That’s part of the deal,” he said.
Duterte’s supporters see it as the ICC’s vulnerability to being a political tool in the fallout of the Uniteam. The ICC’s existence and relevance are also threatened by the fact that it has not caught its biggest fish — Russian president Vladimir Putin and Israeli Prime Minister Benjamin Netanyahu.
“This is the problem of international law today, at least according to the critical wing of the scholarship. It has an imperial, colonial history. Traditionally it has served the ends of the global North. And yet, it is all we know…. it is what we have,” said Ross Tugade, who teaches Public International Law in UP.
“I don’t think it’s a vulnerability. I think it’s a boon to the ICC that states are willing to cooperate,” said Mike Tiu, head of the international criminal law program of UP’s International Legal Studies. – Rappler.com
