After stepping down from the presidency in 2022, former president Rodrigo Duterte ceased to be in the public eye for years. 

But when he appeared in the Senate blue ribbon subcommittee’s hearing on October 28, Duterte made sure he put on full display his strongman character that enamored his diehard supporters. When asked about his drug war, the former president even boasted that he would take all the blame for the killings made by the police upon his instructions. 

“I and I alone take full legal responsibility. For all the cops have done pursuant to my order, I will take responsibility. I should be the one jailed, not the cops who only followed my orders. I pity them, they were only working,” Duterte said in a mix of Filipino and English. 

The former chief executive showed no remorse for his war that killed at least 30,000 people, according to human rights groups. The 79-year-old Duterte even dared people to file complaints against him: “If ever all of these were true, file a complaint against me. We have courts. You’d tell me, ‘How did you know people were killed?’ and all, so that means you have witnesses. File the case in court or file cases in court. As I said, mine and mine alone.”

In the Senate hearing, the former president rambled and was repetitive. He admitted to having his so-called death squad and to teaching cops to prod criminals to fight back so they could justify having to kill them. 

Duterte was also unfazed, as were his allies in the Senate, like Philippine National Police (PNP) chief-turned-Senator Ronald “Bato” dela Rosa. When asked if the former president’s testimony in the Senate could be used against him, Dela Rosa was unperturbed.

“[The statements] may be used against him, especially that he’s under oath, right? He spoke during the hearing….Well, that’s how he is, right? That’s how he speaks after six years of [his] presidency. He really behaves like that. Nobody can control him even if you advise him,” Dela Rosa told reporters during his press conference on Wednesday, October 30. “He’s a lawyer. He was a prosecutor for a long time. He knows criminal law. He really knows his stuff.”

For International Criminal Court (ICC) assistant to counsel and National Union of Peoples’ Lawyers (NUPL) Metro Manila secretary general Kristina Conti, Duterte’s dare to file complaints against him was more of an offense move than a slip-up.

“I think the provocation, they use that in the context of intimidation. They’re intimidating people. They’re intimidating the families and even witnesses who are possibly cops and government officials that if they testify against Duterte, something bad might happen to them.”

“[Duterte] doesn’t care if the ICC will arrest him because he knows effecting that would result in a political upheaval that would benefit him and his family. They’re banking on the notion that the political climate remains in their favor and that Duterte — as he has shown in the Senate hearing — can still influence and cajole his base,” Human Rights Watch senior researcher Carlos Conde said.

Web of complications

Aside from Duterte’s admissions in the Senate hearing, a lot of testimonies and evidence link him to the Davao Death Squad (DDS) and the killings in the drug war. For one, he clearly instructed the police to start the “war.” Second, self-confessed DDS member Arturo Lascañas submitted an affidavit to the ICC detailing how Duterte gave kill orders to the DDS, among others.

So where is Duterte’s confidence coming from and why is he not facing local cases for the bloody outcome of his drug war? Because Duterte had immunity from legal suits when he was president. As chief executive, Duterte could be investigated, according to NUPL president Ephraim Cortez, but could not be charged.

Another reason is, it would be hard and complicated for the PNP and the Department of Justice (DOJ) to investigate their own principal. This, besides the PNP itself being among the chief implementers of the drug war.

“It’s hard to file a case in the Philippines. A lot of requirements are needed before you can sue someone, and among these requisites is evidence. This evidence is controlled by the police as they are statutorily mandated by the law to investigate any crime,” Conti told Rappler. “The second one, of course, was the political atmosphere, the political framework was not conducive. Ideally, prosecutorial and judicial mechanisms should be independent and not political, but the reality on the ground was different.”

Another reason is scarcity of — or rather secrecy about — drug war records. Not only the drug war families, but even independent institutions like the Commission on Human Rights, have had little to no access to drug war records to adequately conduct independent probes. 

Some families of drug war victims also tend to choose silence and their safety because running after the police who killed their loved ones could put their lives at great risk. Rappler has long reported about the drug war families’ plight in seeking justice for their slain loved ones and threats they face. (READ: Fear, harassment push drug war victims’ families to pin their hopes on ICC)

“…Many of the relatives of victims of the killings are afraid to come out. We have to note that their relatives were killed by men in uniform, and almost all of them experienced difficulties in retrieving the bodies of their relatives because of police red tape,” NUPL’s Cortez noted. “Many of them were compelled to sign waivers that they will not file any case against the police.”

On the one hand, these complications were the reasons why there were only a few cases filed against cops, or nothing against Duterte. But these factors, on the other hand, also mirror poor accountability in the drug war. There have been only four convictions for 30,000 victims. None of these convictions involved high-ranking police officers or Duterte, the commander-in-chief. 

Here comes the ICC

“The general view is that domestic accountability mechanisms can’t be expected to deliver the justice that the violations warrant, as we have seen. Nothing has changed in terms of the capability and willingness by law enforcement agencies and other bodies like the DOJ, the Ombudsman, even the CHR, so that leaves the ICC as perhaps the only viable option for justice,” Conde explained.

With all the threats and red tape the families have experienced, it’s understandable why some of them pin their hopes on the ICC. The investigation covers DDS killings and the early years of Duterte’s drug war. The ICC still has jurisdiction over these alleged crimes since article 127 of the Rome Statute states that all proceedings prior to the withdrawal of a state from the ICC remain valid. 

But relying on the ICC doesn’t mean the families and counsels do not trust the local justice system, Conti explained. It’s just that there are a lot of factors that make the ICC the practical choice at this point. The ICC assistant to counsel said the international court has its own independent investigating team that probes the allegations, in contrast to the Philippines where the police once led by Duterte, will conduct its own probe. 

“Again, the ICC is structurally insulated…. None of the investigators…. would be appointed or related to any government official in the Philippines, whether elected or appointed. Obviously, it’s an international arena…. They’re not funded by government funds…by the Philippine government funds,” Conti explained. 

“And then lastly, obviously, they will not be affected by political changes in the Philippines or developments, considering that they don’t even recognize presidential immunity,” she added.

As early as 2016, then-ICC prosecutor Fatou Bensouda said her office was keeping an eye on the rising number of drug war killings in the Philippines. Before Duterte withdrew from the Rome Statute in 2018, the ICC Office of the Special Prosecutor already announced that it had initiated a preliminary examination of killings in the Philippines. Fast forward to 2023, the ICC is now at the phase of the probe where the court can issue either summons or warrants, following the appeals chamber’s rejection of the Philippine government’s appeal in 2022. 

For human rights lawyer Neri Colmenares, Duterte’s reckoning in the ICC is getting closer and closer. 

“I wouldn’t be surprised if the ICC will terminate its investigation soon and issue the warrant of arrest against President Duterte, at least, maybe, before the end of this year. President Duterte will be the first Asian to be tried in the ICC,” Colmenares said during the Bagong Alyansang Makabayan’s (BAYAN) press conference on Wednesday, October 30.

Activists, lawyers, and families of drug war victims renewed their calls on the Marcos government to use the “mounting evidence” presented in the House of Representatives’ quad committee hearings, and then cooperate with the ICC. In the quad committee hearings, bombshell testimonies were already given by witnesses like retired police colonel Royina Garma and retired police officer Jovie Espenido about the start of the drug war and the reward system that was in place. 

On top of these, Colmenares said they also plan to submit to the ICC any transcript, affidavit, or sworn statement from the quad committee. After all, the ICC relies on all sorts of sources, including open sources, in its investigations. 

How about a new local case?

For the record, Duterte’s admissions in the Senate were made under oath. Sworn statements can be admitted as evidence as long as they were duly authenticated and properly adduced. Testimonies in Senate hearings may be used in judicial proceedings, as in the case of former chief justice Renato Corona in the Sandiganbayan, where the prosecution and the defense both used transcripts of Senate impeachment proceedings as evidence. 

Although there’s confidence on the part of Duterte and his allies, Dela Rosa clarified that Duterte’s admissions were just “jokes.” It’s important to note, however, that lying under oath is punishable under the Revised Penal Code. A person may be liable for perjury for lying under oath in non-judicial proceedings, while in courts, there is liability for giving false testimony. 

Meanwhile, should there be local complaints against Duterte, Colmenares believes that the government should take the lead in holding Duterte accountable. For the human rights lawyer, the burden should be on the state, and not on the families, especially now that Duterte is no longer president.

“As we said, let’s not give the burden of filing cases to the families of the victims. They long wanted justice. They were not just given the chance to pursue complaints,” Colmenares said. 

Reporters have already reached out to the DOJ for comments in response to Colmenares’ remarks. We will update this story once they respond. 

For now, it’s clear that the clock is ticking on Duterte. Families of drug war victims pray that accountability will come sooner rather than later — especially since the Philippines is only years away from another presidential election that will decide not only the country’s future, but also how their quest for justice will end. – with research from Dean Gabriel Amarillas/Rappler.com

*Some quotes were translated into English for brevity

Dean Gabriel Amarillas, a third year Philippine studies student in UP Diliman, is a Rappler intern. Learn more about Rappler’s internship program here.