Bailing out of the International Criminal Court

The only thing that now stands in the way of the Philippines’ withdrawal from the International Criminal Court or ICC is the Supreme Court.

Uh-oh… the withdrawal is good as affirmed then. But maybe the Supreme Court will surprise us. The legal challenge was initiated by six opposition senators, who are arguing that since Senate concurrence was needed for the Philippines to become a party to the Rome Statute that gave life to the ICC, Senate concurrence is also needed for the country to withdraw.

The administration argues that the country was never a party to the Rome Statute because it was not published in the Official Gazette. But this is required for laws to take effect. Does it cover international treaties or statutes?

And if the country was never part of the ICC, why did the government withdraw from it?

ICC membership won’t be a big deal in countries where democratic institutions are functioning well enough to hold public officials and state forces accountable for serious human rights abuses. The US has never been a party to the Rome Statute.

Unfortunately, the institutions for holding top public officials accountable in our country are seen to be so dysfunctional and compromised that the ICC is perceived as a last resort for preventing impunity.

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If our notoriously malleable Supreme Court goes along with Malacañang on this issue, those dismayed by the Duterte administration’s decision to withdraw the country from the ICC can take comfort in the thought that it’s possible for the country to return, like Gambia did.

Also, as ICC chief prosecutor Fatou Bensouda has announced, the court can continue its proceedings over alleged crimes committed when a state was still a party to the Rome Statute, even if the state later withdraws.

The ICC is not yet launching a formal investigation of President Duterte and some of those accused of responsibility for his brutal war on drugs. At this stage of “preliminary examination,” Bensouda is still trying to determine if, indeed, crimes against humanity have taken place in the Philippines courtesy of Rodrigo Duterte, and if the ICC has jurisdiction over this case.

The way I see it, if the government didn’t decide to withdraw the country from the Rome Statute, the Duterte administration might even emerge a winner in the case.

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The ICC can step in when state structures for preventing the offenses over which it has jurisdiction, such as genocide and crimes against humanity, are no longer functioning.

Under the principle of complementarity, the ICC can step in only if a state is unable or unwilling to prosecute those accused of crimes over which the ICC has jurisdiction. As long as there are ongoing legitimate investigations into the imputed crimes, the ICC cannot step in, regardless of the outcomes of the probes.

Our criminal justice system is a disgrace, but there’s a difference between dysfunctional and non-functional. The government has cited the arrest and conviction last year of three anti-narcotics policemen for the summary execution of teenager Kian de los Santos as Exhibit A in its defense.

But Human Rights Commissioner Roberto Cadiz is not the only one asking: what’s one case among thousands? Senior Supt. Bernard Banac, Philippine National Police spokesman, told us on The Chiefs this week on Cignal TV’s One News that the PNP has filed around 170 similar cases since the drug war was launched. So the government can argue that the investigations continue.

A president who violates human rights can be ousted by impeachment. But impeachment is a political numbers game that Duterte is guaranteed to win in the House of Representatives where his so-called super majority rules.

Still, he’s no president for life, and he loses immunity from suit once he steps down. Two Philippine presidents have been arrested and held without bail, and one was convicted of plunder. Duterte’s predecessor is himself facing several criminal cases in connection with official acts as president. Duterte has often publicly acknowledged that he could be indicted and even incarcerated for drug-related deaths once he loses his presidential immunity. So the structures for accountability are functioning, however flawed they may be.

Then there’s the offense itself. Crimes against humanity, described under the Rome Statute as offenses “committed as part of a widespread or systematic attack directed against any civilian population,” include murder, torture, enforced disappearances and “other inhumane acts.” Again, the administration can invoke ongoing investigations and prosecution of reported abuses to argue that there is no “widespread or systematic attack” against the civilian population in this country. President Duterte may even invoke his argument that his drug war is in fact meant to protect the majority from the drug menace.

Cadiz, who also faced The Chiefs in another episode, said this is the first time that the crime is being imputed in connection with a “war” against prohibited drugs, which the government is defending as a legitimate law enforcement campaign.

The ICC has started exercising jurisdiction over environmental crimes, but not over state campaigns against prohibited drugs. Will Bensouda accept the complaint from the Philippines?

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For those who initiated the complaint, there is the risk that if the ICC drops the case for lack of jurisdiction, the Duterte administration is sure to claim vindication and it could lead to an even harsher war on drugs.

If the ICC claims jurisdiction over this case, it will set a precedent for similar complaints against other heads of government in the lands of the narcos in Latin America and several other Asian countries.

Southeast Asia, home to the opium-producing area called the Golden Triangle, is a region of hardline governments when it comes to dealing with illegal drugs and criminality. Most of the members of the Association of Southeast Asian Nations are not state parties to the Rome Statute. I’m not sure if the ICC wants to extend its reach to anti-narcotics campaigns.

Cadiz stressed that even if the ICC decides that it has no jurisdiction over the case against Duterte, it will not settle the question of legitimacy of the drug war.

The human rights commissioner told me that even if Bensouda tosses out the complaint, from the time the case was brought before the ICC, deaths related to the drug war have gone down.

That’s looking on the bright side. The long-term solution, if we want to prevent extrajudicial shortcuts in fighting the drug menace, is to make our criminal justice system work.