[OPINION] Compulsion vs cooperation: Duterte arrest is Filipinos’ hard lesson on international law

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I have often said that international law is a unicorn. Lawyers won’t like that. I am a non-lawyer moving in a lawyers’ world and even to me, international law is a mythical animal with horns in rainbow colors. Filipinos grapple with this today, especially those who support former president Rodrigo Duterte and others who want him punished for his brutal war on drugs.

Here’s my effort to clarify.

By now you have seen this talking point: President Ferdinand Marcos Jr is not compelled to recognize the International Criminal Court’s (ICC) warrant against Duterte, even via the Interpol. In fact, as Duterte’s propagandists are pointing out, Interpol has made it clear on its website that it “cannot compel the law enforcement authorities in any country to arrest someone who is the subject of a Red Notice.”

These are all true. But not completely.

What is missing in that talking point is that cooperation is the magic word. It is the heart of international law, whether criminal law or soft law. Without cooperation, international law will remain a unicorn.

Sovereign countries will always be sovereign — it is independent, it cannot be compelled. After World War II, we saw how the world can collapse if countries do not come together. So beginning with the charter of the United Nations in 1945, countries decided that they wanted to be part of a new world order to ensure that humanity does not fall into darkness again.

Thus, when the Philippines signed off on international charters, and other treaties that came after, we ceded some of our sovereignty. In effect, we were saying that, yes, we’re sovereign, but in the name of world peace we agree to follow the unicorn.

The road to a new order of shared legal standards has not been easy. Some treaties were a nightmare to many countries, particularly the Rome Statute, or the charter of the ICC. The Rome Statute was drafted in 1998 but it only entered into force in 2002 — precisely because countries needed some convincing.

In fact, it took the Philippines 11 years to be convinced to ratify it. And the reason for that is the same reason Filipinos are grappling with the ICC issue these days: why would we hand over a national to a foreign court?

For peace, humanity

We ratified the Rome Statute in 2011 because our leaders believed back then that it’s a significant contribution to humanity, that it’s a worthy insurance against impunity. We believed that if a war criminal evaded the ICC and fled to the Philippines, we would be under moral obligation to hand over that war criminal to justice. For world peace. For the sake of humanity.

Isn’t that what Harry Roque, once a leading human rights and ICC advocate, said before? In his now rehashed tweet when we ratified the Rome Statute, he said: “At long last, the Philippines to be a member of ICC! Despots, murderers, torturers beware!”

What Roque did not know in 2011 is that he would change his politics and he be loyal not to international law that he worked for all his life, but to someone who would become the suspected murderer he once loathed.

Salvador Medialdea, Duterte’s lawyer in his first appearance in the ICC, attacked the court as being “subject to delegitimization, desperate for a prized catch and a legal show.” The ICC is indeed subject to delegitimization because countries are refusing to cooperate with it. That’s why the ICC only has six suspects in custody, and the other 30 — including Vladimir Putin and Benjamin Netanyahu — are at large.

Why did Marcos cooperate? Your guess is as good as mine. The political motivations are clear.

But understand that cooperation has a significant impact on international law. It’s through cooperation that we caught and prosecuted the likes of the Nazi general Adolf Eichmann, and the dictators Augusto Pinochet and Hissène Habré. It is why Ratko Mladic, considered the “butcher of Bosnia,” is serving a life sentence in Scheveningen prison where Duterte is detained right now.

Beyond crimes against humanity, there’s the climate crisis. We’re living on a planet with “a rapidly closing window of opportunity to secure a livable and sustainable future,” as warned by the Intergovernmental Panel on Climate Change in its report in 2023.

Because countries are not cooperating, we are again at a UN court — the International Court of Justice — asking rich countries to compensate poorer countries for the adverse affects of their pollution. The Philippines is at the frontline of that case.

Marcos and his cooperation

International law, the unicorn, is very flawed. It has time and again failed to invoke the cooperation that it needs in order to exist.

So now we live in a world where two of the world’s most powerful leaders charged by the ICC are not yet (and may never be) in its custody, Gaza is being erased, and the world’s polluters are refusing to pay. It’s a dim outlook.

Marcos’ cooperation with the ICC via the Interpol, despite his own misgivings and sometimes blatant contempt for international justice, is now ironically a ray of light in a dark world. Ironically, too, it is the Philippines — the ironclad ally of the United States — which showed the world it can cooperate despite a threat of sanctions from the Trump government.

This irony is what confronts Filipino human rights advocates, many of them anti-Marcos.

When I covered Duterte’s arrest outside the Villamor Air Base on March 11, his supporters taunted me: “Lian, are you pro-Marcos now,” they asked while shoving their cellphones in my face. I hope this piece reaches them, to have a more nuanced conversation about international law and politics.

It sounds too simplified, I must admit, but in a world where Team Duterte can make a fake TRO, and people believe that Katrina Ponce Enrile is ICC Judge Iulia Motoc, perhaps simplicity is what is required.

So let me put it simply: cooperation spells the life and death of international law. It took the Philippines to show the world it can be done. For all the brokenness of our country, we have shown that international law is real — that it’s not a unicorn, after all.  – Rappler.com