Cautionary tales on crimes against humanity

It will be the height of irony if President Duterte is prosecuted and convicted at the International Criminal Court (ICC) because of his bloody campaign against drugs. He will be imprisoned in the Netherlands, where drug use is legal, and where users of marijuana freely roam the streets.

The intention of some groups to have the President prosecuted at the ICC has been in the news lately. Jude Sabio, the lawyer of confessed hit man Edgar Matobato, has made known his plan to file a case at the ICC against Mr. Duterte, while Magdalo Rep. Gary Alejano has initiated moves aimed at fulfilling the preconditions for the filing of such an ICC case.

The cases of two foreign presidents charged with crimes against humanity are instructive.

In 2009, the current leader of Sudan, President Omar al-Bashir, became the first sitting president of a country who was indicted at the ICC for crimes against humanity and war crimes. He is accused of directing a campaign of mass killing, among others, during a civil war that claimed the lives of 400,000 of his countrymen.

The indictment of al-Bashir shows that a country’s incumbent president can be criminally charged at the ICC despite his immunity from suit under domestic law. It also shows that even if there is no direct evidence that links a president to the crime, he may still be indicted “as an indirect co-perpetrator,” as in the case of al-Bashir. A warrant was issued in 2009 for the arrest of al-Bashir. While he has not been taken in, the threat of arrest remains a constant possibility if he travels abroad or is ousted from power.

The ex-president of Chad, Hissène Habré, became the latest former head of state convicted of crimes committed during his rule. Habré was the president of the African state from 1982 until he was deposed in 1990. He went into exile in neighboring Senegal.

Habré was convicted in May 2016 of crimes against humanity, among others. As many as 40,000 people were alleged to have suffered under his violent rule, many of whom were victims of his political police, the Directorate de Documentation et Securité. Its acronym, DDS, is eerily similar to the acronym of the Davao Death Squad, which is said to have perpetrated extrajudicial killings under Mr. Duterte’s alleged direction when he was mayor of Davao City.

Habré was prosecuted and convicted, not by the ICC, but by a special international criminal tribunal that was set up in Senegal and funded with the help of the United Nations, the European Union, several European countries, and the African Union.

The efforts to bring Habré to justice took more than 25 years, during which period many frustrated attempts were made that saw the filing of cases in the domestic courts of Belgium, Chad and Senegal, and even in the International Court of Justice.

It was a crucial component in the Habré campaign that the victims of his brutal rule banded together and formed a Victims Association which actively assisted in gathering witnesses and extending support to them. The association worked closely with international human rights organizations, particularly Human Rights Watch, and the lawyers who prosecuted the case. I met two of the outstanding and inspiring lawyers, Jacqueline Moudeïna and Reed Brody, in a human rights conference in South Africa in 2014.

The United Nations, European Union, and Human Rights Watch—all crucial participants in Habré’s conviction—have all criticized President Duterte’s bloody war on drugs, even warning him of his potential liability for crimes against humanity. In response, the President has blasted these international organizations with profanity-laced tirades.

The pro- and anti-Duterte camps who are minded by his potential liability for international crimes can draw lessons from the prosecution of the two foreign presidents. The lessons provide advisory guidelines and serve as cautionary tales for both camps.

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