Pressenza journalist Perfecto Caparas sought former senator Leila de Lima’s views on the International Criminal Court Office of the Prosecutor’s investigation into the situation in the Philippines involving alleged crimes against humanity committed during former president Rodrigo Duterte’s reign of terror. Until now, de Lima remains in detention on trumped-up drug charges after she initiated and led a senate investigation into Duterte’s so-called “war on drugs” that led to the targeted killing of 12,000-30,000 civilians who mostly belonged to the poorest of the poor.

 “As to Duterte, it’s plainly indicative of guilt or evasion of accountability, that he persists in undermining ICC’s jurisdiction. Their insistence on barring the investigation only shows that they fear what the probers may unearth.”

 Perfecto Caparas (PC): How do you view the government’s position barring the International Criminal Court’s Office of the Prosecutor from investigating and prosecuting the perpetrators of the killing of 12,000-30,000 civilians under former president Rodrigo Duterte’s so-called “war on drugs”?

Leila de Lima (LDL): It is utterly frustrating that the Marcos, Jr. administration has chosen the path of hesitancy and resistance to cooperation in the ICC probe and rejoining the ICC/Rome Statute. To be blunt about it, it’s plain cowardice. Unwilling or afraid to displease or offend Duterte. As to Duterte, it’s plainly indicative of guilt or evasion of accountability, that he persists in undermining ICC’s jurisdiction. Their insistence on barring the investigation only shows that they fear what the probers may unearth.

Don’t they realize that their continued defense or shielding of Duterte would cast a serious cloud of doubt on this government’s pronouncements or commitment to uphold and strengthen human rights as recently articulated by the Justice Secretary before the UN Human Rights Council and during the UN HRC’S Universal Periodic Review? Parenthetically, such would be construed as empty rhetorics, lacking in sincerity, that would adversely impact on government’s recent efforts at regaining the esteem of the global community which has been so tainted and diminished by the former President’s uncouth posturings and diplomatic indiscretions.

Having said that, I do not think that the Marcos, Jr. Administration’s decision on the issue of the Philippine government’s non-cooperation in the ICC investigation is already final. When the time comes, it is still possible that the decision will change depending on the present composition of President Marcos’s advisers.

However, the fact that Menardo Guevarra is still the Solicitor General will weaken such a possibility, considering that he was precisely placed in his new position to continue on defending Duterte the way he did as the former President’s Secretary of Justice. But if President Marcos keeps on appointing other advisers who are independent of Duterte’s Davao mafia and who are not beholden to Duterte, there is a chance that the policy on non-cooperation with the ICC will change.

We still have a fluid political position wherein the hold of Duterte on the Marcos, Jr. administration is expected to lose its vitality as the latter learns to be more independent of the former in terms of allowing the fight for justice to take its due course through the instrumentality of the ICC.

PC: Do you think the Philippines is willing and able to investigate and prosecute the persons most responsible for committing those crimes against humanity?

LDL: The short answer is “No”. The present government is both unwilling and unable to properly and justly investigate those responsible for the atrocities committed. The simple fact is that the former president and his allies are presently too entrenched in power that the local justice system has to operate with glaring limitations, which prevents them from going against those who are really responsible, those with the highest criminal responsibility, to the prejudice of the victims and their families.

What we have seen so far is the DOJ proceeding against a very small subset of offenders while refusing to acknowledge the overarching orders, policies, and culture that caused, inspired, and ultimately led to the atrocities committed all over the country.

Left on its own, the present administration appears incapable of investigating and prosecuting Duterte and his accomplices in the drug war killings. The Marcos, Jr. administration would rather not touch that sensitive matter in order to avoid a direct confrontation with Duterte and his loyalists who still have power in government, especially within the PNP and the AFP. President Marcos simply would not want to make an enemy out of Duterte. It would not help in the stability of his government and his alliance with the Dutertes that, in the first place, made his government possible.

As such, almost half a year into the Marcos administration, no investigation has yet been initiated or no case has yet been filed against Duterte even if he has already lost his immunity from prosecution. That is why the most that can be expected of the Marcos, Jr. Administration is to stand back and allow the ICC to conduct its investigation and leave the prosecution of Duterte to the ICC.

PC: What are the issues and challenges facing the ICC preliminary investigation?

LDL: Unfortunately, the former president was, and still is, very popular with an almost cult-like following in real life and in cyberspace. And as it is the case against any populist leader, the road to justice is filled with enablers, deniers, and blind supporters.

As of now, the primary challenge is the issue of whether or not the ICC probers will be allowed to enter the country and conduct their investigation in the Philippines. The second challenge is whether the government will cooperate in this investigation and up to what degree. The third challenge is whether or not the Philippine government will extend its protection to, and guarantee the safety of the investigators. All of these are important, but merely allowing entry to the investigators is already a big opportunity for the ICC investigation, even if the government does not cooperate actively in the investigation. The ICC can always rely on NGOs, CSOs, people’s organizations, and progressive political parties in the conduct of its investigation.

The challenge is staying true to the “why” of it all: bringing justice to the oppressed, regardless of how powerless they are.

The investigators and the victims must navigate around the political noise and make their case in the strongest and clearest way possible. The proof must be undeniable. The ICC and the victims must closely work together, along with local human rights defenders to gather and preserve the evidence necessary to make the case.

“The Marcos, Jr. administration should allow entry to investigators and support the investigation. This will save the administration the effort of investigating and prosecuting Duterte itself.”

PC: How can the victims and their families surmount those challenges?

LDL: As of now, most families of victims who want to be active in pursuing justice for their murdered relatives are already in partnership or are already cooperating with local and international human rights organizations. They can always pressure the Marcos, Jr. administration to change its policy and for it to support the ICC investigation, instead of disallowing it as proposed by Guevarra and Harry Roque. They should also continue to make representations with the ICC that regardless of the Philippine government’s position, the ICC should continue its investigation in the Philippines.

PC: What needs to be done in order to ensure an effective investigation by the ICC Office of the Prosecutor into the alleged cases of crimes against humanity in the country?

LDL: The Marcos, Jr. administration should allow entry to investigators and support the investigation. This will save the administration the effort of investigating and prosecuting Duterte itself. If the Philippine government refuses entry to ICC investigators, the ICC will have a difficult time completing its investigation in the Philippines. At the very least they should be allowed entry. The government need not actively support or cooperate in the investigation. The ICC will have other ways and means by which to conduct the investigation without government support. But first and foremost, they have to gain entry first into the country.