Duterte and the ICC’s writing on the wall

The prosecutor of the International Criminal Court (ICC), Fatou Bensouda, announced on Feb. 8 that her office has begun a “preliminary examination” of the situation in the Philippines. Her office “will [analyze] crimes allegedly committed in [the Philippines] since at least July 1, 2016, in the context of the ‘war on drugs’ campaign launched by the government of the Philippines.”

President Duterte reacted by turning melodramatic, saying he has no qualms dying by “firing squad” because it will be his distinct honor “just to imitate the way Rizal died.” In reality, however, the ICC generally imposes a penalty of up to 30 years of imprisonment; only under “exceptional circumstances” will it impose a life sentence, but never the death penalty.

The ICC discloses in its website that there are 25 cases, with 42 defendants, that have undergone or are undergoing different stages of court proceedings. Of these cases, three are undergoing trial, four were dismissed before trial was completed, one has resulted in acquittal, and five have resulted in conviction. In addition, 12 cases have not started trial because the accused are still at large. Trial does not start until the accused is arrested and brought under ICC custody.

Among the accused is the current president of Sudan, Omar Hassan Ahmad alBashir, whose trial has yet to start because he has not been arrested. Another accused is the former president of the Ivory Coast, Laurent Gbagbo, who is detained in the ICC while he undergoes trial.

The list of accused also includes a minister of interior, a deputy prime minister, a minister of higher education, an army lieutenant general, and a number of ranking officers of revolutionary or rebel groups. This shows that the ICC prosecutes not only heads of state but even lower ranking officials. This should serve as a cautionary tale for officials of the Philippines who participate in the planning or implementation of any act that can be considered an international crime within the jurisdiction of the ICC.

All of the pending ICC cases involve crimes against humanity, war crimes, or genocide, except three cases where the accused are charged with the crime of “corruptly influencing or attempting to corruptly influence witnesses by offering to pay them to withdraw as ICC prosecution witnesses.”

Many of those who are charged with crimes against humanity are being made liable for the acts of murder, rape, torture, and other crimes committed by their subordinates. While the accused themselves did not personally commit the crimes, they are being made liable for directly or indirectly participating in the planning or implementation of the crimes perpetrated by their subordinates, or because they “made essential contribution to the realization” of the crimes.

All but one of the accused in the 25 ICC cases are men. The exception is Simone Gbagbo, who is accused of participating in a plan to commit crimes against humanity when her husband ran in the Ivory Coast presidential election.

All the accused are citizens or residents of African countries. Because of this, there are strong accusations that the ICC is biased against Africans. Consequently, there are threats by African countries to withdraw their membership at the ICC. The international law community is abuzz with speculation that the ICC wants to demonstrate that it is not biased against Africans and that it is raring to initiate and hear a case involving an accused who is not from an African country. This does not bode well for President Duterte.

After the ICC prosecutor announced the preliminary examination of the Philippine situation, Mr. Duterte defiantly
declared: “The war or the drive against drugs will not stop. And it will last until the day I step out.”

Will our President be the first non-African to be prosecuted at the ICC? The ICC preliminary examination is the first step that may lead in this direction. If the drug killings continue, the President would have failed to read the writing on the wall.

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