The Philippines in the ICC

Since its formal establishment in 2002, the International Criminal Court has indicted 34 individuals from eight African countries for war crimes, crimes against humanity, and genocide.  Some of us may have read media references to Darfur, Uganda, and the Democratic Republic of the Congo. Most Filipinos, myself included, would need a map to pinpoint their precise locations.

I am sorry and sad that the ICC has now found sufficient cause to open a “preliminary examination” of possible crimes committed since July 1916 in President Duterte’s drug war.  While more people voted against Mr. Duterte than for him, he won the presidency convincingly. That the ICC, after monitoring the situation for almost two years, has placed the administration of our legitimately elected President on its agenda also reflects on the Philippines and on us.

I am even more sorry and sad that Mr. Duterte has responded to the ICC by following the leadership of Burundi in rejecting cooperation with the ICC and withdrawing from it. Burundi? It’s a small, landlocked country in East Africa with a population of 10.5 million, ranked by the 2018 World Happiness Report as the “least happy people.”  Mr. Duterte has declared that he would campaign for other countries to leave the ICC. How many will rush to join Burundi and the Philippines? Our likely company would be those similarly under investigation by the ICC.

Lashing out against the ICC is shortsighted and self-defeating.  First, because weaker, less developed countries have a greater need for the protection of an internationally accepted, rule-of-law regime. One of the ICC cases, for instance, is looking at the conduct of British military personnel in Iraq.

Second, the ICC had barely begun a process, which needs the government’s assistance, through which the Duterte administration could demonstrate that an ICC investigation was unnecessary. The administration would need to present the results of a serious effort to investigate EJKs and punish the perpetrators. Compliance with the Supreme Court demand, supported by members of the Senate, that the police turn over copies of the drug war files would be a good start.

Third, Mr. Duterte had little to lose as he was still very far away from prosecution. The ICC’s file of 11 cases in 2017, again all but one from Africa, includes some which have been under investigation since 2004.   The ICC does not even begin a formal investigation until it has completed a preliminary evaluation, which may, as happened in four cases last year, result in a decision not to proceed.

The cases that feed into the ICC pipeline for preliminary examination come from member-states, others from the United Nations Security Council.  It also acts on communications that report ongoing commission of its category of crimes. Between October 2016 and October 2017, the ICC received 568 communications. Only 62 of them (11 percent) merited a closer look from the ICC that could lead to preliminary examination. Its process appears serious and rigorous.

Mr. Duterte has dismissed the ICC evaluation as “rude” and insulting to his position as the leader of a sovereign country.  Unfortunately, he cannot wrap himself in the Philippine flag and expect the people to rally to his defense.  Not when the ICC is asking for what the people and coequal branches of the government also want: an end, not to the campaign against drugs, but to the alleged impunity protecting EJK perpetrators. Two years into the Duterte term, not one EJK suspect has been convicted and given commensurate punishment.  Some of the other ICC cases involve fewer deaths than have resulted from the Duterte drug war.

Given the ICC’s protracted process, Mr. Duterte himself faces no threat of imminent indictment; chances are the investigations would extend beyond his lifetime. But there are also the closest subordinates and political allies implicated in the alleged crimes, which are continuing in the wake of the war. The ICC is not bound by any mandatory deadline within which to complete its investigations. Which means that the stigma of an ICC investigation would continue to hang over the Philippines for we don’t know how many years.

This is one of the legacies the Duterte administration will likely bequeath to us: the dubious distinction, though no longer a member of the ICC, of a place in its “Rogues’ Gallery.”

Edilberto C. de Jesus (edcdejesus@ gmail.com) is professor emeritus at the Asian Institute of Management.