Withdrawal

Since the Philippine government strongly believes there is no case against President Duterte for crimes against humanity, it should have just stuck to his initial response: he was ready to prove his accusers wrong.

The International Criminal Court prosecutes only four types of crimes: genocide, which is targeted against one particular group; war crimes; crimes of aggression, which a country commits in invading another; and crimes against humanity, for which Duterte is currently under “preliminary examination” by the ICC.

As defined in the Rome Statute that created the ICC, crimes against humanity are acts “committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.” 

The 16 acts are murder, extermination, enslavement, deportation or forcible transfer of population, imprisonment or other severe deprivation of physical liberty, torture, rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, sexual violence, persecution, enforced disappearance of persons, apartheid, and other inhumane acts.

Even if Duterte’s police minions might have committed systematic torture, murder and other inhumane acts in waging his war on drugs, the ICC can step in only if the state is unable or unwilling to address the abuses.

The Duterte administration can point to the congressional probes that tossed out the same accusations that were brought to the ICC. The lawmakers cited the inconsistencies in the testimony of Edgar Matobato, who claims he was a member of a death squad that operated in Davao when Duterte was its mayor.

In addition, the administration can point to the indictment of several cops for the execution of teenage drug suspects, South Korean businessman Jee Ick-joo and several other cases. While the number of cases being prosecuted is pitifully few compared to the number of drug deaths, it shows that congressional checks and balances as well as the criminal justice system, although weak and deeply politicized, continue to function.

The Palace buzz is that the administration believes ICC fairness has been compromised and Duterte does not stand a chance. Administration officials have openly lamented that human rights have been “politicized” and “weaponized” against Duterte, with US billionaire’s widow Loida Nicolas-Lewis bankrolling the efforts.

Lewis, who has repeatedly denied involvement in any plot to oust Duterte, has always been identified with the Aquino camp. The Duterte administration also suspects her of working in tandem with the camp of Noynoy Aquino’s preferred successor, Mar Roxas.

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The rules allow the ICC to continue its “preliminary examination” of any case initiated before the withdrawal notice. Also, a withdrawal can take effect only a year after the notice is filed.

Duterte and his current mouthpiece, who is a perfect example of how power transforms people for better or worse, are of course right: more states could follow the Philippines’ example.

If hit by mass withdrawals, with only the democracies of Western Europe and the other countries that consistently rank high in the World Happiness Index staying on, the ICC could be rendered toothless.

The ICC’s demise, however, would not invalidate the Geneva Conventions and states’ commitments and obligations under the International Humanitarian Law. The global community can go back to the pre-ICC regime in stopping the crimes that the special court is tasked to prosecute. Before the Rome Statute was approved, special tribunals were created or supported by the United Nations to go after those responsible for the atrocities committed for example during the Holocaust, in Cambodia under Pol Pot’s Khmer Rouge, and in the Balkans.

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Burundi, the Gambia and South Africa announced they were withdrawing from the Rome Statute in October 2016, and Kenya, Namibia and Uganda may follow amid accusations that the ICC is biased against African states. The Gambia and South Africa later revoked their withdrawal.

The Philippines can rescind its withdrawal, but it’s doubtful that this will happen under Duterte. Initially expressing readiness to face ICC prosecutors, Duterte knows he’s not alone in his disapproval of the court and his decision to withdraw the country from the Rome Statute.

The United Nations General Assembly voted 120-7, with 21 abstentions, to adopt the Rome Statute on July 17, 1998. The seven were China, Iraq, Israel, Libya, Qatar, the United States and Yemen.

China, India and 39 other UN member states did not sign or accede to the statute. Ukraine signed but has not ratified it. Signatories Israel, Russia, Sudan and the US have sent word to the UN secretary general that they would no longer be state parties. But the Philippines is not like the US whose soldiers have faced complaints for human rights abuses overseas.

Malacañang complains that the ICC failed to observe the principle of “complementarity” in its probe. Put simply, as long as national proceedings or investigations have been initiated on the alleged crimes against humanity, the ICC cannot step in with its own probe.

Duterte knows that apart from the countries already mentioned that are not state parties to the Rome Statute, the ICC also has weak support in Southeast Asia. Only Cambodia and Timor-Leste, apart from the Philippines, are state parties to the Rome Statute.

Then again, when did Southeast Asia ever become a model for human rights? This is a region of strongmen (the Singaporeans prefer “strong government”), with exuberantly democratic Philippines sticking out like a sore thumb. Dirty Rody is a perfect fit in the region.

Sure we can go the way of Burundi. But a withdrawal should be on a matter of principle, which will not contradict the reason we ratified the Rome Statute and why we even campaigned to have Filipinos sit in the ICC. It shouldn’t look like we are withdrawing principally to save Dirty Rody from prosecution.

The ICC has not yet even launched an investigation of the Philippine situation, but is still assessing in a preliminary examination whether there is “reasonable basis” to step in and open a formal probe. Malacañang was notified of this examination, and if the ICC applied the principle of complementarity, it could actually rule against an investigation.

Instead, with Malacañang’s hasty and premature withdrawal, the inevitable criticism is that Duterte feels guilty and is preempting prosecution. His nemesis Antonio Trillanes IV couldn’t resist a jab: last week the senator said he would face squarely the sedition charge filed against him, because he’s no “coward” like…