Former president Rodrigo Duterte’s inaugural appearance at the quad committee was peppered with flip-flopping and backtracking here and there.

During Wednesday’s hearing of the House of Representatives’ mega-panel probing into his war on drugs and extrajudicial killings, Duterte boldly dared the International Criminal Court (ICC) to hasten its investigation and come arrest him immediately.

“I am asking the ICC to hurry up, and if possible, they can come here and start the investigation tomorrow. This issue has been left hanging for many years, baka mamatay ako, hindi na nila ako imbestiga (I might die and they can no longer investigate me),” Duterte declared with a lot of bravado.

To Duterte critics like former senator Antonio Trillanes IV, however, the former president was just bluffing, with none of his statements about surrendering to the ICC to be taken seriously.

“It’s a bluff. Lahat ng ginagawa niya performative. Ang audience niya, ‘yong mga nanonood, [ipinapakita] niya na siga-siga pa rin siya… Hindi na ubra ‘yon (Everything he does is performative. His audience, the viewers, he wanted them to see that he is still macho. But that doesn’t work anymore),” Trillanes told reporters after the 14-hour hearing.

True enough, Duterte reversed gears when he was later asked about Malacañang’s statement on President Ferdinand Marcos Jr.’s government having no intention to block the ICC if it goes through the International Police (Interpol). Duterte resorted to questioning the ICC’s jurisdiction over the Philippines.

“I’m happy with the narration of whatever it says there is. Ang problema, walang jurisdiction. Bigyan mo muna ako ng jurisdiction before anything else. Before you move, jurisdiction muna. May jurisdiction ba sila?” Duterte said. (The problem is, there’s no jurisdiction. Give me jurisdiction before anything else. Before you move, there must be jurisdiction first. Do they have jurisdiction?)

Duterte’s contention had, however, long been debunked. Article 127 of the Rome Statute, to which the Philippines was a signatory to, says that all proceedings or incidents prior to the withdrawal of a nation from the treaty remain valid for investigation. The Philippines’ own Supreme Court affirmed this principle and noted that the Philippines is still obliged to cooperate with the ICC.

What will Marcos do?

Even after his fallout with the Dutertes, Marcos remained firm on his policy that his administration will not cooperate with the ICC. When asked by reporters about Duterte’s statement on the ICC, Marcos echoed the statement of his executive secretary.

“If ‘yon ang gugustuhin ni PRRD [former president Rodrigo Roa Duterte] ay hindi naman kami haharang doon sa mga ICC. Hindi lang kami tutulong. Ngunit kung pumapayag siya na makipag-usap siya o magpa-imbestiga siya sa ICC, ay nasa kanya ‘yon. Wala na kaming desisyon doon,” the President said.

(If that’s what PRRD wants then we cannot block the ICC. We won’t just assist them. But if he will communicate with them or allow himself be investigated by the ICC, it’s all on him. We won’t decide on that.)

After Duterte’s provocations in the lower house, Executive Secretary Lucas Bersamin said the government will be obliged to comply with terms of its membership with the Interpol or the International Criminal Police Organization.

“…if the ICC refers the process to the Interpol, which may then transmit a red notice to the Philippine authorities, the government will feel obliged to consider the red notice as a request to be honored, in which case the domestic law enforcement agencies shall be bound to accord full cooperation to the Interpol pursuant to established protocols,” Bersamin said.

The Interpol issues red notices to “locate and provisionally arrest a person pending extradition, surrender, or similar legal action.” It’s not an arrest warrant from the Interpol itself, but rather a notice based on “an arrest warrant or court order issued by the judicial authorities in the requesting country.” In the case at hand, the ICC may request the Interpol to issue a red notice for Duterte and other persons of interest.

Because the Philippines is a member-state of the Interpol, it is obliged to cooperate with the international police. Marcos’ Solicitor General Menardo Guevarra told reporters on Thursday: “Cooperating with the Interpol and cooperating with the ICC are two different things. The first involves a legal duty; the second involves a political decision.”

What should Marcos do?

Marcos is no longer allied with the Dutertes but it is his indecisiveness, as Human Rights Watch senior researcher Carlos Conde put it, that is stopping him from directly cooperating with the international court. (READ: ICC case exposes Duterte’s desperation, Marcos’ indecisiveness)

“Their seeming indecisiveness actually speaks volumes. If I have to guess, I think the calculation by the Marcos camp is that, because the ICC card — meaning, Marcos’s cooperating with the ICC — is the last card that they’re willing to play in the ongoing political oneupmanship between the Dutertes and the Marcoses, they should play it very, very smart,” Conde said.

“And by essentially letting Duterte create the opening for the ICC intervention, the Marcos administration would come off as less brutal in this war with the Dutertes…. By using Duterte’s thoughtlessness at the quad comm hearings, Marcos can wash his hands of any responsibility for the inevitable investigation here by the ICC. It affords them deniability,” Conde added.

For human rights groups and the families of drug war victims, it won’t take much from Marcos to cooperate with the ICC. They have repeatedly told him that there are easier ways to deal with the ICC, without necessarily rejoining the court.

Last year, drug war victims and their counsels urged Marcos to do the “bare minimum,” which is for his administration to cooperate with the ICC by accepting ad hoc jurisdiction of the court “to bolster its cooperation with the court’s investigation.” Unlike rejoining, cooperation is much simpler because it will only require Marcos’ nod.

Rejoining, meanwhile, would require more work and processes, besides the concurrence of the country’s legislature. – Rappler.com