Commentary: Duterte’s strategy of rupture

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DUTERTE’S defense has just began. Not just a bold move but also an appropriate one, given the nature of the International Criminal Court (ICC) proceeding against him—political, which makes nothing but a show. His guilt has already been established by a massive global propaganda against him. Thus, whatever the ICC does would be nothing but mere formalities to recite the ready-made guilty verdict. The grand purpose is regime change. And Duterte just nipped it in the bud with his strategy of rupture.

Alleged protector of the illegal drug trade in the National Penitentiary, Sen. Leila de Lima hinted at the ICC’s intervention as early as August 15, 2016. In an interview with the Inquirer, De Lima already built the case against Duterte for “crimes against humanity.” Duterte’s pronouncements, even during the campaign period, De Lima said, can be used as evidence against him. “I am not threatening the President. I am just stating a fact,” De Lima added in her characteristically haughty tone.

Stating a fact in politics isn’t like stating one in a classroom. For example, during the 1945 Postdam Conference, US President Harry Truman told the Soviet Union’s Joseph Stalin that the US had “a new weapon of unusual destructive force.” Truman was also stating a fact. Yet those who are politically aware know it was not an innocent statement. As Winston Churchill recalled in Triumph and Tragedy, “I knew what the President was going to do. What was vital to measure was its effect on Stalin.” Like Truman, De Lima wasn’t simply informing Duterte, she was baring a plan.

The threat began taking form when Jude Sabio, lawyer of self-confessed hitman Edgar Matobato, sent a communication to the ICC prosecutor in April 2017, alleging crimes against humanity committed by Duterte. It was followed by the communication sent by Magdalo Rep. Gary Alejano and Sen. Antonio Trillanes, after their attempt to impeach Duterte failed. “We are of the firm belief that [Duterte] is unfit to hold the highest office of the land,” Alejano said.

Mark Kersten, a Fellow at the Munk School of Global Affairs, University of Toronto, wrote in The ICC and Regime Change: “Where international criminal tribunals aim—or are aimed—at sitting heads of state, their implicit aim is to knock their target from power.” The regime change happens because if the heads of state got issued a warrant of arrest or even a summons to appear, they have to leave their countries and go to The Hague to attend trial. That’s the situation anti-Duterte forces are gunning for in their quest to destroy Duterte’s legitimacy to rule in the eyes of the international community.

Faced by an ICC-enabled regime change, Duterte has two strategic options: the path of connivance and the path of rupture. The notorious French lawyer Jacques Vergès expounded both choices in De la Stratégie Judiciaire.

In the path of connivance, the accused accepts the authority of the court. The accused merely contests facts, the application of the law, but not the legitimacy of the court. Meanwhile, the path of rupture questions the authority of the court. If the accused accepts the court’s legitimacy, Vergès explained,

the trial is possible, consisting of a dialogue between the accused who explains himself and the judge whose values are accepted. If he refuses it, the judicial apparatus falls apart, it is a trial that refuses the legitimacy of authority, one of total rupture.

Instead of conniving with the court, Duterte chose rupture. He turned the accusing finger towards the ICC and put its legitimacy on trial.

Since there’s no sovereign power higher than states in the current international system, no state can be compelled to do anything without its consent. The ICC cannot create legal obligations to states not party to the Rome Statute, unless the UN Security Council decreed it. Now that the Philippines has withdrawn from the Rome Statute, the source of the ICC’s authority over the Philippines is gone.

Whether the ICC proceedings against Duterte could still continue is both a legal and political question.

It’s worth noting that the ICC hasn’t yet established jurisdiction, admissibility, etc. The ICC prosecutor still needs to determine them in the preliminary examination stage before she could apply for authorization to investigate from ICC’s pre-trial chamber. Duterte withdrew from the ICC before all of that happens. There’s no precedent in this case. Burundi is a close one, but it withdrew after jurisdiction had been established and authorization to investigate had been granted.

So, the legal question will revolve around interpreting Article 127 of the Rome Statute on the effect of withdrawals.

But in international relations, the political question trumps the legal. Now that the Philippines has withdrawn its consent, what legitimizes the ICC’s interference in its domestic system? There might be a chance that the continuation of ICC proceedings could be deemed legal, but not everything that’s legal is legitimate.

The legal can only be legitimate if it still has the power to compel obedience. States obey if they consent. Duterte just withdrew that. Thus, the ICC no longer has that power.

(Published in The Manila Times on 20 March 2018)


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