How hatred of human rights boomeranged on Duterte
In a span of a few hours, former president Duterte went from being a free man to a prisoner arrested under a warrant from the International Criminal Court (ICC). Victims of his war on drugs celebrated this development, while his supporters were outraged.
Common to everyone in the country, including Duterte, no doubt, was our surprise that the arrest even happened. Not until he boarded the plane bound for The Hague, Netherlands, despite last-minute pleas for a temporary restraining order from the Supreme Court, did we all realize that, indeed, the Philippines is about to give the ICC its first Asian defendant to stand trial.
The arrest is surreal, given the events of the past six years. Duterte had tried to ensure that the ICC couldn’t go after him by withdrawing Philippine membership to the Rome Statute. After his term, it seems the skies were clear because his daughter’s political unity with the Marcoses would keep him safe. Until their “UniTeam” disintegrated.
In his entire term, Duterte lambasted the very concept of human rights, and threatened rights defenders and institutions. What he failed to realize is that human rights are universal and that each human being is entitled to human rights protection, whether one is an innocent victim, a drug addict, or even a dictator. Human rights treaties, such as the Rome Statute, are in place not just to keep a head of State like himself in check, but also to afford him his basic human rights once he becomes a defendant.
Article 59 of the Rome Statute states that persons arrested must be promptly brought before a court in the custodial State to ensure that they are afforded the right to due process. If the Philippines were still a member of the Rome Statute, Duterte could have demanded a right to be heard in a local court as part of the Philippines’ obligations as the custodial State. The strongest legal argument that Marcos officials can invoke was handed them on a silver platter by Duterte himself: that the Philippines is no longer a member State and thus, not bound by Article 59.
Our residual duty is to cooperate with the ICC if we were still bound by Article 59. However, it was unlikely that the Marcos administration would invoke this residual duty, as the President has repeatedly stated that he does not believe the Philippines should cooperate with the ICC. Instead, the current administration washed its hands clean of any ICC involvement and invoked its commitments to the Interpol instead. To be clear, the Philippines is not legally bound to comply with Interpol’s requests. As the President himself said, the motivation behind serving the ICC warrant coursed through Interpol was comity and reciprocity with this police body.
What we have, therefore, is the irony of ironies. The hole that Duterte dug to get out of the ICC is the same hole where lie buried his arguments against being taken before the ICC court. If he had respected human rights, he could have invoked them to block the plan to fly him out to The Hague.
All this is moot now, as we await developments in The Hague where, again quite ironically, Duterte could hope to be afforded his basic human right to due process to save him from a maximum 30 years’ imprisonment. He might hope for The Netherlands to assume the status and responsibilities of the custodial State and would, therefore, be duty-bound to carry out a trial to determine the propriety of his arrest. He might even be granted a temporary release from custody.
He’d definitely hope for the ICC to reverse itself, determine that it actually has no jurisdiction over the case, and release him immediately. Or, as a last resort and after a lengthy but fair trial, he could hope to be acquitted of any wrongdoing and be set free to enjoy the years left in his life.
Martin Luther King once said that the arc of the moral universe is long, but it bends toward justice. In this case, not only did it bend, but it boomeranged on Duterte. The road towards justice for the human rights victims is long, but these are early days and the future is nothing close to certain. For now, let’s recognize that, eight years after the first “Tokhang” operation, human rights finally took a win.
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Atty. Gil Anthony Aquino is the managing partner of Aquino and Anuncio-Aquino Law Offices (AAA Law) based in Leyte, Philippines. He teaches international law and human rights law.
