How to drag Duterte to ICC for EJK probe?

How can anybody drag an unwilling President Duterte to the International Criminal Court to face investigation for “crimes against humanity” involving the alleged torture or murder of thousands of Filipinos suspected of drug trafficking or abuse?

On June 14, before ICC Prosecutor Fatou Bensouda ended her term, she announced her having requested the Court’s pre-trial chamber to open a formal investigation into the situation in the Philippines.

Bensouda was quoted as saying: “The Office is satisfied that information available provides a reasonable basis to believe that the crimes against humanity of murder, torture and the infliction of serious physical injury and mental harm and other inhumane acts were committed on the territory of the Philippines.”

As the ICC does not have its own police force or enforcers, it relies on member-states for support, particularly in arresting suspects and transferring them to the ICC detention center in The Hague, in freezing their assets and enforcing sentences upon their conviction.

The Court has handled 30 cases. Its judges have issued 35 arrest warrants, handed down 10 convictions and four acquittals. Seventeen persons have been locked up in the ICC detention center. Thirteen suspects remain at large, while charges have been dropped against three accused who had died.

Duterte has been reciting on local media lately his by now familiar defense line that goes “Do not destroy my country, the youth or I will kill you!” He and his apologists have been pointing out also that:

• The Philippines’ ratification of the Rome Statute that established the ICC was invalid because it was not published in the National Gazette or a newspaper of general circulation as all laws should be.

• Assuming Philippine ICC membership was valid, it ended on March 17, 2019, with the country’s notice of withdrawing as a signatory of the Rome Statute of the ICC.

• Under the principle of complementarity, the ICC is to complement, not to replace, national criminal systems. It should prosecute cases only when states do not, or are unwilling or unable to do so themselves. Duterte says Philippine courts are functioning normally.

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Bensouda, a 60-year-old Gambian lawyer and international criminal law prosecutor, said in her recommendation (slightly edited for brevity):

“The situation in the Philippines has been under preliminary examination since Feb. 8, 2018. My Office has been analyzing a large amount of publicly available information and information provided under Article 15 of the Statute.

“On the basis of that work, I have determined that there is a reasonable basis to believe that the crime against humanity of murder has been committed on the territory of the Philippines between July 1, 2016 and March 16, 2019, in the context of the Philippines’ ‘war on drugs’ campaign.

“The Office does not take a position on any government’s internal policies and initiatives addressing the production, distribution and consumption of psychoactive substances within the law and due process. In this case, it is acting strictly in accordance with its specific and clearly defined mandate and obligations under the Statute.

“Following a thorough preliminary examination, the available information indicates that members of the Philippine National Police, and others acting in concert with them, have unlawfully killed between several thousand and tens of thousands of civilians during that time.

“My Office has also reviewed information related to allegations of torture and other inhumane acts, and related events as early as Nov. 1, 2011, the beginning of the Court’s jurisdiction in the Philippines, all of which we believe require investigation.”

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More information came June 4 in an online forum wherein former ICC Judge Raul Pangalangan said that Duterte has not escaped the Court’s jurisdiction with the Philippines’ withdrawing from the Rome Statute.

The former dean of the UP College of Law who was president of the ICC Trial Division in 2019 said Duterte still has to account for criminal acts committed before the country’s withdrawal from the ICC in March 2019.

He said, “Article 127 says that the Court retains jurisdiction even after a member-state’s withdrawal. It retains jurisdiction over all crimes committed in its territory while it was a member of the Rome Statute.”

The same Article, he said, was applied in the case of Burundi, the first nation that left the ICC in 2017 after the violent crackdown by state forces against critics of then-President Pierre Nkurunziza. Burundi was among the first cases Pangalangan handled as a member of the ICC pre-trial chamber.

“When (Bensouda) asserted her jurisdiction over crimes committed while the Philippines was still a member of the Rome Statute (until March 2019), she was squarely invoking the application of Article 127,” Pangalangan said.

The cooperation of state-parties is needed in enforcing the orders and decisions of the ICC. But the Philippine government’s instant reaction is not needed at this point since the ICC has yet to grant Bensouda’s request, he said.

On the question of subpoenas and arrests, who will deliver Duterte to the ICC to face investigation and trial, if it comes to that?

It is unlikely that the government, with Duterte sitting as president, will deliver him to the ICC. But turning him over for investigation or trial could be facilitated if/when he is no longer the president – either because his term has ended or is fully served or he has been ousted.

The possibility of such a status of vulnerability could be reason enough for Duterte to resort to extreme measures to stay on or to ensure that his successor is someone who would protect him, prevent his delivery to the ICC and be subjected to its processes.

On the other hand, for the same reasons, the opposition or a coalition of anti-Duterte forces is likely to work harder together to defeat national election candidates perceived to be committed to protecting him after he leaves office.

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NB: All Postscripts are also archived at ManilaMail.com. Author is on Twitter as @FDPascual. Email: [email protected]