(Conclusion)
While these two provisions exist, inequality persists. Human rights violations by the five permanent members of the SC and their allies are practically beyond the reach of the ICC. Why should this INEQUALITY AND INJUSTICE be allowed to continue? This is especially true since they violate the UN Charter which guarantees “equal treatment in social, economic, and commercial matters for all Members of the United Nations and their nationals.”
One billion dollars have been spent to prosecute cases which has resulted in only two convictions since the establishment of the ICC. This huge amount could otherwise go a long way in alleviating poverty in other parts of the world or help achieve the Sustainable Development Goals. After all, Human Rights include both political and economic rights.
Leaving the ICC does not mean that President Duterte is helpless to counter the charges filed against him. There are several options which he can avail of namely:
First, the Philippines can request the Security Council to order the Independent Prosecutor to defer investigation of the charges against Pres. Duterte and for the ICC not to hear the case if it has already been filed under articles 13 and 16 of the Rome Statute.
Second is non-cooperation which can take two forms.
One form of non-cooperation is non-surrender of wanted persons. The Philippines can follow the example of the African Union (AU) which called on its member states not to cooperate with the Court in relation to cases instituted against sitting heads of states thus shielding their own nationals from prosecution at the ICC using the same technique of non-cooperation that powerful states have employed.
The AU used Article 98 of the Rome Statute as its basis to bar AU member states from arresting President Bashir through a July 2009 decision stating that all AU member states shall not cooperate with the ICC, “pursuant to the provisions of Article 98 of the Rome Statute relating to immunities.”
The Philippines can enter into similar agreements with the Association of Southeast Asian Nations (ASEAN) and other friendly countries on the basis of Article 98.
Another form is withholding of documents which has been used by western states and African states. For example, NATO and NATO countries were able to shield their nationals from prosecution at the International Criminal Tribunal for the former Yugoslavia (ICTY) in respect of the 1999 NATO airstrikes in Serbia.
The same technique was employed by Kenya to frustrate the prosecution of President Kenyatta. The Court’s prosecutor alleged that Kenya has obstructed prosecution investigations by withholding President Kenyatta’s financial documents. Thus, the case fell below the required standard for trial.
Third is defense of complementarity under Article 17(a) of the Rome statute which simply means that domestic investigations have priority in principle under international criminal law and procedure. The case being investigated or prosecuted by a State has jurisdiction over it, unless the State is unwilling or unable to genuinely carry out the investigation or prosecution.
It is unfortunate that the defense of complementarity has been effectively sabotaged by the statement of the Philippine Commission on Human Rights (CHR) in March 2018 calling on the Philippines to support the probe being conducted by the ICC. In effect, the CHR supports the assertion that Philippine courts are not functioning, thus inviting the ICC’s intervention.
Instead of issuing such a statement, the CHR should have conducted its own investigation thereby negating the need to file the complaint before the ICC. Its inaction seemed designed to enable the ICC to conduct its investigation on the alleged extra-judicial killings. I agree with Inquirer columnist Oscar Tan who commented “we must empower our own judges and not be too eager to see Filipinos tried by foreign courts” (Inquirer, 3/19 p. 9) referring to the Center Laws petition for a writ of amparo before the Supreme Court to protect the residents of San Andres Bukid, Manila from extra-judicial killings that will serve as a blueprint for anti-tokhang cases all over the country.
Fourth is that the crime that President Duterte is charged with is not one of the cases which fall within the jurisdiction of the ICC. Article 7 of the Rome Statute reads: “Crime against humanity’ means any of the following acts xxx when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.”
The term ‘widespread’ has been defined in various ways, and generally connotes the large-scale nature of the attack and the number of victims. While ‘widespread’ typically refers to the cumulative effect of numerous inhumane facts, it could also be satisfied by a singular act of exceptional magnitude.
The term ‘systematic’ has also been defined in various ways. Early decisions set high thresholds: in Akayesu, it was defined (1) thoroughly organized, (2) following a regular pattern, (3) on the basis of a common policy and (4) involving substantial public or private resources. It is understandable to pose a significant threshold, especially given that non-widespread crimes should not lightly be labelled as a crime against humanity.
In Blaskic, it was defined by reference to four factors: (1) a plan or objective, (2) large-scale or continuous commission of linked crimes, (3) significant resources, and (4) implication of high-level authorities.
Other cases refer more simply to ‘pattern or methodical plan’, ‘organised nature of the acts’ or ‘organised pattern of conduct.’
I submit that the war against drugs cannot be categorized as a crime against humanity. The killings are directed against individuals and not against large segments of our population to make them fall within the ambit of crimes against humanity. Furthermore, the complicity of President Duterte has not been established.
Fifth, Article 2 (1) of the UN Charter emphasizes the principle of the sovereign equality of all its members. Non-interference in the affairs of independent states is sacrosanct. International law norms of sovereignty, self-determination and non-intervention guard against foreign domination. The investigation being conducted by the ICC is an affront to the sovereignty of the Philippines guaranteed by the UN Charter.
The foregoing discussion exposes the inherent unfairness of the Rome Statute, specifically Articles 13 and 16, which gives powerful states, i.e. the permanent voting members, the power to refer and defer. This inequality among states parties to the Rome Statute should not be allowed to continue. Repeal of these two articles is a condition precedent in case the Philippines is prevailed upon not to withdraw its membership from the ICC.