A special interview w/ international lawyer Ruben Caranza.

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Okay, Atty. Karenza, in the previous episode, we discussed the International Court of Justice situation, especially in light of some of the impending, not one, but multiple genocide, mass atrocity cases. We talked about the broader international implications of that, regardless of what kind of provisional measures ceasefire will come from the International Court of Justice.

I won't say disagreement, because I understand your point that don't hope that things will go from zero to ten. My point is, I'm willing to take two, going from zero to two, so that I can build from there to go to the next. Very Rizal, right? We're not going to get independence just like that. You have to work hard for it, but I'm happy to go from zero to two, and then from two to four, and then so on and so forth.

So I don't think we're disagreeing here. Maybe we're just using different thresholds of what makes sense.

It's a half-full, half-empty situation.

I think there's a certain dispiriting effect, Ruben, to tell you, especially back then I was a much younger man. So you could see for any idealistic person, it's really easy to be cynical. But I always fight against cynicism by saying it's good to go from zero to two, right? Which we'll discuss more because we'll talk about transition from Duterte to Marcos Jr., right? But before we go to Marcos Jr., let's talk about ICC. So I think suddenly now there's a lot of excitement that not only is there more or less an admission, I think, that ICC has already been here.

Since December, from what I understand, but that even a warrant of arrest could be in the pipelines, not only for the former president, but also potentially for someone sitting at a very high level right now, who is related to the former president.

Ano yung alam mo, Ruben? Ano yung chismis? Ano yung conjecture? Ano yung fact? So let's separate the three, kasi in the Philippines, the three are taken together. Ano yung chismis sa tingin mo, Marites, lang? What is the conjectural part na educated guess? And what are the part that we can be more or less sure about?

I understand why people like Senator, former Senator Trillianes, for example, would encourage the idea that the ICC prosecutor is about to ask for warrants of arrest against Rodrigo Duterte or his former police chief or other people around him who were involved in

extrajudicial killings in Duterte's.

Drug war. I understand the need to make people remember that accountability has not happened and that there is an institution that might make that happen.

I also understand why the emphasis is on warrants of arrest, which is because Filipinos see arrest as justice.

Arrest as justice.

Very.

Setting an example, sampulan and all that. But what I think is not wrong, but perhaps inadequate in all these emphasis on justice as arresting people is that it also erases other ways that justice can happen and other places.

Where justice can emerge and creates, to me, unrealistic expectations about what will happen at the ICC.

In the course of ICC proceedings, the prosecutor often takes so long to ask for warrants of arrest.

We mentioned this earlier in a previous discussion, but the exception is Ukraine.

The prosecutor right now.

Karim Karan is clearly not just close to, but often unfairly listens to Western governments more than any other group of governments in the world.

And so was in a haste to ask for warrants of arrest in the Ukraine case against Russian leaders.

It took him a matter of just two weeks.

Is that the massacre?

This is after the...

That was the trigger, right?

Well, because he also chose cases that are easier to prove.

So children and the taking of children from Eastern Ukraine as his basis for issuing warrants.

You know, this crime of forced deportation of children.

So he uses, he used that.

And in a matter of weeks, two weeks, a warrant was issued.

And how long?

Has the investigation involving extrajudicial killings in the drug war in the Philippines been pending since at least October 2016?

So how long is that?

Years.

Why is it that when Western governments ask for justice at the ICC, the ICC prosecutor, not just issued warrants, he went there, held a press conference, walked around as if, you know, he already decided as if he were also the ICC.

He's only the prosecutor.

He is not the court.

He acts as if he already judged this case.

And in the meantime, you have as many people, if not more, killed in a drug war that isn't even a war.

Russia-Ukraine is a war.

You have two sides fighting.

But in the Philippines drug war, you have children being killed, civilians, people that are unarmed.

Or even if they were drug users, they did not resist violence.

But killed nonetheless.

20,000, 25,000.

And it has taken him years to do anything about it.

His predecessor at least opened the case.

His predecessor at least used her office to warn Duterte.

I remember that very distinctly when she first issued a statement in October 2016.

In other words, his predecessor used the power of the court to equalize access to justice of the ICC.

This is the same.

This is the same predecessor, by the way, Fatou Bensouda, a Gambian lawyer, who also opened an investigation involving Palestine and Israel.

So, you know, to her credit, she's from the global south and she understands why it's important to make the ICC credible.

And her country was the one who took Myanmar to ICJ also, right?

In a genocide case, that's right.

There's something about that country, right, Gambia?

Like they really fell above their weights.

And I think it's...

And I think it's...

It's this larger sense that global south, international law people, people who pursue justice and human rights coming from the global south,

have a better sense of what justice means, not just locally, but internationally.

And so, to me, this idea of warrants of arrest and making Filipinos who at least who want accountability hopeful,

it's understandable, but it's also...

It also creates, like I said, unmanageable expectations.

What if the warrants are not issued?

Or worse, what if the warrants are issued but cannot be enforced?

Because who will enforce them?

Now, the answer, of course, is the Philippine government, the Philippine National Police.

And because Philippine courts will be dragged into this question,

despite a Philippine Supreme Court ruling that says, you know,

the Philippines is still obligated under the ICC Treaty to...

work with the ICC even after the withdrawal by the Philippines from the ICC.

Despite all these rulings, we know what happens in a court system in the Philippines

that is still controlled essentially by powerful economic and political interests.

They will be used to maintain impunity.

They will be used to create the sense of European courts are going after me.

And they will be used to frustrate expectations about ICC warrants.

That's why I hope that people who announce things like this

can also announce that there are limitations to what a warrant of arrest from the ICC...

That's why we got you, Ruben.

You need someone to, you know, it takes a whole bunch of people to make the world.

I understand where the former senator is going from.

I think it's more about, you know, keeping people...

be well excited, you know, sense of anticipation, momentum.

The reason I'm saying that, Ruben, is because this is where I want to put your journalists at.

Because this is not happening in a vacuum, right?

This is happening amid a conflagration in the so-called ex-Unity, right?

BBM has an interest in pinning down the Dutertes,

although, you know, his appetite for risk is something we can debate about.

And clearly, there's a change in language of the Department of Justice.

They went from totally uncooperative.

To semi, you know, like saying maybe they're open.

And then now they're kind of indicating that they may be at least open to them coming in.

Don't just say, don't you think that's movement in the right direction?

Perhaps not necessarily for the good reasons, but at least for the, you know, political reasons that is driving this.

Again, because we cannot separate law from interest, right?

The two really go together.

And having said that, don't you think that the ICC, behind the scenes, is astute enough to negotiate?

The parameters, if ever there's going to be a warrant for us, you know, the idea that we're not going to issue a warrant for us

if we don't think that the Philippine government will cooperate at all.

And at the same time, the Philippine government under Marcos is not going to say okay to that

unless they're sure that they're in a position to take on the other powerful wing of the Philippine political establishment.

What about that angle, Ruben?

Don't you think that will be more astute this time?

Considering this is the first Asian case, right?

Pretty major case, right?

A couple of points.

I think, Richard, first of all, while there are political considerations for the ICC prosecutor in this case, right?

It's not the court yet.

It's the prosecutor asking for warrants.

And normally, the pretrial chamber, when it issues warrants, will follow what the prosecutor recommends,

which is the issuance of warrants.

There are political considerations, not only with this current prosecutor,

who is the most politicized in the sense of, like I said, driven by Western government interests,

but even previous ones.

There have only been two in the past.

But at the same time, and I know people who are working at the ICC, at the office of the prosecutor,

there are also enough people working at the ICC who know that unless they do what appears to be technical work,

what appears to be simple administrative processes,

that there will never be a juncture where the ICC prosecutor is forced to consider,

the political ramifications of his or her actions.

Should I ask for a warrant?

Should I issue this warrant?

Karim Khan could not have asked for warrants in Ukraine in two weeks without these technical persons behind him doing the work.

So a lot of credit has to go to investigators at the ICC's office of the prosecutor for pursuing the Philippines case,

for putting together case files,

for arguing,

for arguing at the pre-trial chamber when Duterte and then later Marcos' government lawyers,

including a UK law firm hired by Marcos to protect Duterte just two years ago or even last year,

to try to stop the case.

In other words, Marcos has not, and this is the second point,

Marcos has protected Duterte and his impunity far more for a longer period of time

than he has.

Now, seems to appear to be cooperating with the ICC.

And why is that?

Now, the answer is obvious to Filipinos who follow, you know,

this intra-family and inter-family rivalries over both political power and corruption in the Philippines,

access to corruption.

Marcos, if he really wanted to seek accountability for the thousands,

thousands of people killed by Duterte's government in that drug war,

if he really wanted to pursue justice for Filipinos armed by that drug war,

for the children that were killed by Filipino policemen and then, you know,

these masked vigilantes, these drug war enforcers,

he can file a case.

He can order his justice secretary to actually open a crimes against humanity case

under Philippine law before a Philippine court.

It is...

Not just possible,

but it is provided for in a 2011 Philippine law

creating jurisdiction for Philippine courts to try crimes against humanity.

And is that possible against Duterte?

Yes, because it wasn't possible when Duterte was president.

The Philippine crimes against humanity law

exempted a sitting president from being charged with crimes against humanity,

but not a former president, which Duterte is right now.

So,

if really Marcos wanted to seek justice

and not manipulate justice for his family's political and economic interests,

he can do it now.

He could have done it last month.

So,

So, the infrastructure is there.

What you're saying is the infrastructure is there.

You're just waiting for the hammer to come down, if ever.

As a matter of fact,

one of the latest examples of a crimes against humanity case pending in Philippine courts

involves the...

armed fighters who were involved in the Marawi siege.

There are crimes against humanity cases against them.

Why is that possible?

Because there is a law allowing...

In other words, crimes against humanity, not just murder,

but crimes against humanity involving murder.

So, to me, it's clear that Marcos Jr.

is just using the ICC to protect his family,

to protect his family,

to protect his political and economic interests,

to preserve...

Magpabango din siya, diba?

Magpabango siya.

I mean, he's gonna look...

Right?

He's gonna look good.

I mean, if ever, you know, ICC is like...

Or at least the illusion of ICC is moving in the right direction.

But I don't even think...

I don't even think that that is his reason for the slight movement from his government

because I think he's also afraid that if he were to go all out,

support the ICC,

bring them into the Philippines,

he would run afoul of American interests

because the United States does not want countries

that it is arming and supporting to work with the ICC.

The U.S. wants to control how the ICC works and does not work.

And any country within its sphere of influence

that suddenly empowers the ICC

is a threat on the U.S. control of how the ICC works.

It doesn't work.

So, Marcos Jr. is quiet about supporting the ICC

because it's not just about the Duterte's.

It's also about the United States.

And Marcos Jr. can always pull the plug.

You know, the ICC, you can come in right now,

but if you were about to ask for a warrant of arrest,

I will send a message and tell you we will not enforce it.

He's also calibrating and using the ICC's powers

to put...

Pressure on the Duterte family.

It's a Democles sword.

Yeah, I mean, it's just...

It's a leash.

It's a leash.

I mean, it's like a Democles sword.

Like, oh, you want me to do this?

Then, let's do the ICC.

But the thing is, how long can you play that game?

I mean, will ICC just allow itself to be used as a pawn or leverage point?

There should be some sort of expiration date on that.

Oh, it can last as long as any dictator or son of a dictator wants.

I mean, look, Uganda.

How long did it take before Uganda's government

actually tried to enforce warrants of arrest

involving the Lord's Resistance Army leaders,

people who were trying to overthrow parts of the Ugandan government

in northern Uganda?

How long did it take for the dictator of Uganda,

Yuseri Musebeni, to do anything about it?

He filed a case, but then it took over a decade

before he even started cooperating.

They used the ICC.

Dictators.

Sons of dictators.

Would-be dictators.

They used the ICC to keep themselves in power,

to threaten their enemies.

And that is an unfortunate offshoot of a court

that is still emerging as a means of accessing justice,

but is still very, very vulnerable to those who want to use justice.

Not to seek justice,

but to maintain or gain political power.

In their own country.

So, that's the unfortunate thing.

It can last for as long as Duterte and Marcos

are still fighting to keep or retain power

or to retake power.

And unfortunately, in the meantime,

families of those who were killed in the drug war

have not received any kind of justice,

whether from the ICC or from domestic courts.

So, you're sure?

Pwede pa i-dribble ito?

That's what you're saying?

Almost indefinitely pwede ma i-dribble ito?

Diba?

To use it?

Yeah.

You know, when...

It was both a surprise and not a surprise to me at some point

when the Marcos government hired this UK law firm.

It's called 9BR, Bedford Row.

Yes.

It's based in London.

Led by a lawyer named Stephen Kay

to defend the Philippines' refusal to cooperate with the ICC

at the ICC.

This is the same law firm that represented

Uhuru Kenyatta,

Kenya's former president.

He was at that time president.

Was accused of election violence.

And the reason why the Philippine government,

Rodrigo Duterte and Marcos together,

hired 9BR isn't just because,

oh, here's the lawyer who managed to defend Uhuru Kenyatta

and got the case dismissed for crimes against humanity

against Kenyatta.

The vice president of Kenya was also a defendant

in that...

Kenya ICC case.

He is now the president of Kenya.

His name is Ruto.

Guess who Ruto's lawyer was at the ICC?

Karim Khan.

Oh, I didn't know that background about Karim Khan.

That's why you're very skeptical of him.

I was wondering, where is this thing with Karim Khan coming from, right?

Because I saw his background when he was in charge of investigations

in Iraq, right?

And Libya.

That's the part of...

Of Karim Khan's background,

I'm kind of aware,

even with the...

The son of Gaddafi's case, right?

But I didn't know this part.

Interesting.

Interesting.

And that's why, you know,

to me, sure,

I can understand why you or others would say,

oh, Marcos and Duterte are just using the ICC

as if it were a Philippine court.

But this is not a particularly global South Filipino disease.

It is exactly what Karim Khan is doing.

It is exactly what the United Kingdom is doing.

Americans are doing it.

So, I don't think we should punish ourselves

as global South, as Filipinos,

and say, you know,

oh, it's typically Filipino

or it's typically third world or global South.

It is also typically global North,

British, American,

to corrupt the court system.

So, yeah, I think the term we use for that is

false exceptionalism.

Mayilig tayo sa ganun.

So, Pilipinas lang, like,

traffic, have you been to Mumbai or Delhi?

Like,

have you been to Cairo?

Have you seen the taxi?

You know, it's like,

ikaw kasi,

you travel to a lot of quote-unquote third world countries.

For some of us,

I've been to many third world countries.

Like, hindi, actually, Manila.

It's actually not the worst.

That doesn't make it good,

but at least you feel a little bit less lonely.

Thank you very much

because I want to do just a short,

very short episode after this.

Thank you so much, Ruben.

This went way longer than I thought,

but I think it's because

antagal natin yung catch-up

and these are very complicated,

important issues.

So, thank you so much

for making time,

Atty. Crayonza.

You're welcome.

Pleasure.

Okay.

All right.