IT should be clear at this point that despite the pullout of the Philippines from the Rome Statute on March 16, 2019, the International Criminal Court (ICC) still retains jurisdiction over the Philippines insofar as its investigation into purported “crimes against humanity” committed by people holding the reins of power in this country are concerned. After all, the declared principle that brought the ICC into existence is to end a culture of impunity consistent with international norms and values.
The pullout is apparently triggered by the announcement in early 2018 by the chief ICC prosecutor Fatou Bensouda that the court will launch an investigation into the Philippines’ so-called “war on drugs” based on a continuing perception that the current administration’s condoning of extra-judicial killings is instrumental in enforcing its anti-drug campaign. This reported summary killing of drug suspects thus far number in the thousands. Some estimate the numbers at 6,000, other human rights groups place the casualty count at over 27,000.
The rules of the ICC, ratified in a convention of 120 states in 2002, specify that it can investigate, prosecute, and litigate cases brought into its chambers even if a State, which signified its intention to pull out, is no longer a party to the Rome Statute. In this scenario, the ICC can lock its period of inquiry from the time of the State’s membership in the ICC up to its official withdrawal as a party to the Court.
In the case of the Philippines, the ICC can conduct investigation of alleged crimes from the time of its official entry into the ICC on November 1, 2011, until its pull out on March 16, 2019. It is therefore curious that Presidential Spokesperson Harry Roque, who was a part of the Philippine Coalition for the International Criminal Court that lobbied for the Philippine ratification of the Rome Statute, insists that the jurisdiction of the ICC is limited only within the period when President Duterte took office on June 30, 2016, up to the time of the country’s withdrawal from the ICC in 2019.
We can only infer that the period 2011 to 2016 was when the human rights situation in Davao City was particularly contentious, and this took place under the administration of then mayor Rodrigo Duterte. The ICC has expressed its intention to expand its probe into the situation in Davao City which the Duterte apologists now balk against. Roque regales us with a Latin maxim “ratione temporis” to explain that the ICC could not push back its timeline to 2011 because the time for a probe has already lapsed. But this is untenable. A perfunctory check into the ICC rules say otherwise, and I believe Roque is aware of this.
Despite that clarity, the administration gives us the illusion of legalese so that they can put the issue in compartments perhaps with the intention of containing the matter within State levels if they can. They have made it clear that there will be no formal acknowledgment of the jurisdiction of the ICC saying the government will never cooperate with any investigation initiated by the Court. On the other hand, keeping the issue within the Duterte presidency might be a strategy to delimit the power of the Court to bring charges due to Presidential immunity.
At this point we need to understand that the ICC prosecutes individuals and not the State or groups for that matter. If that “individual” happens to be the President and those who acted under his command, then the State could not insulate him from prosecution, not even if the system grants him and his underlings immunity or amnesty.
Indeed, the Rome Statute expressly provides that the ICC is not a substitute for State courts, and in this respect, Roque is correct in “emotionally” defending the competence of the Philippine courts. But we speak here of the administration of justice that is specific to the victims of extrajudicial killings resulting from the drug war. The ICC rules state that the Court can intervene if domestic courts are “unable” or “unwilling” to investigate and prosecute. The lack of movement in the legal process for the victims since 2016 falls within the ICC’s intervention purview because, in their words, there is “undue delay” in the administration of justice and possibly an effort to “shield individuals from criminal responsibility.”
No less than Roque himself said that whatever words that come out of the mouth of the President becomes policy. He said this recently when the President has declared that the wearing of face shields will now be required only in hospitals thus the general population can already stop using this. The ICC apparently agrees that a president’s statement is a declaration of policy. Thus, Duterte’s pronouncement to “kill” drug suspects in an apparent disregard of due process while he mocks the principles of human rights, indicates a state-wide marching order to eliminate drug suspects outside the legal process. If a significant part in the ICC’s investigative and prosecutorial powers is to “focus on those who bear the greatest responsibility for the crimes,” then it comes as no surprise that there is a spirited effort to shield the originator of that policy from accountability.
To say that this process is politically motivated only highlights the strategy of the government to brush aside the authority of the ICC through its unwillingness to acknowledge the seriousness of the allegation which is “crimes against humanity.” Likewise, Senator Tito Sotto’s “whataboutisms” (i.e., what about the killings in Mexico and South America) is again an attempt to muddy the waters by looking for equivalencies (a false one anyway) without inquiring into the context of the Philippine situation.
Though I must admit the timing is quite auspicious. We are about to launch into an election season. This can affect the ICC process in two ways: either an administration candidate is elected with a goal to block the ICC process every step of the way, or we can have a change in dispensation with the intention of restoring the Philippines’ membership in the ICC and allow justice to take its course. If we seek to restore time-honored norms and values as well as our standing in the community of nations, the choice seems obvious.
