A court of last resort

In a world of sovereign nation-states, each with their own legal and political systems, is there value to having an international criminal court invested with the power to try individuals for offenses like genocide, war crimes, crimes against humanity, and aggression? It is a question worth revisiting as the world hurtles toward another catastrophic war. Emerging from the horrors of World War II, victors and victims set up special war tribunals to investigate, pinpoint responsibility, and pass judgment on those who made the crucial decisions that led to such atrocities. The cumulative wisdom gathered from these tribunals inspired the formation of the International Criminal Court (ICC).

It wasn’t an easy task to flesh out this ambitious concept and bring it to full fruition. The process involved countless hearings, consultations, and conferences aimed at producing a consensus. Drafts of the statute were subjected to rounds of revisions by participating countries that, as expected, were concerned not only about the implications of this international agreement for global justice and peace but also for their national sovereignty.

Crafting the set of articles that later came to be known as the Rome Statute was a delicate balancing act. We catch a glimpse of this negotiated order in the final lines of the preamble: “[T]o establish an independent permanent International Criminal Court in relationship with the United Nations system, with jurisdiction over the most serious crimes of concern to the international community as a whole;” but “Emphasizing that the International Criminal Court established under this Statute shall be complementary to national criminal jurisdictions …”

Decades of relative global peace and stability made the concept of war crimes seem distant and alien. It was only on July 17, 1998, or half a century after the Nuremberg trials, in the city of Rome, that the Statute creating the ICC was finally ready for signing by participating states. Accession to the Rome Statute is voluntary, and state parties have the option to withdraw their membership by giving due notice. Withdrawal takes effect one year after serving notice.

Joining 120 other states, the Philippines signed the Rome Statute on Dec. 28, 2000, but Senate ratification came only on Aug. 30, 2011. On Nov. 1, 2011, we became formally a state party to the pathbreaking agreement that seeks to realize humanity’s quest to establish a global rule of law, protect human rights, and end impunity. On March 17, 2019, one year after President Rodrigo Duterte filed a notification of withdrawal, we ceased to be a part of the ICC. However, under the terms of the Rome Statute, withdrawal does not discharge a state party of its obligation to cooperate with the Court in connection with investigations and proceedings that were started before the effective date of withdrawal.

Although it actively participated in the shaping of the historic document, the United States chose not to become a state party and has not recognized the jurisdiction of the International Criminal Court. The main reasons have to do with its refusal to cede authority to the ICC for crimes committed by US forces in Afghanistan and other countries.

This arrogant stance certainly undermined the authority and credibility of the ICC. If the world’s most powerful country, which projects itself as the beacon of democracy and the rule of law, could ignore the ICC in defense of the primacy of its national courts, why can’t the Philippines do the same? I would be surprised if President Marcos’ confidently dismissive attitude toward the ICC did not partly draw inspiration from America’s example. The crux of the matter appears to revolve around two things. First, the ICC agrees that its role is complementary to that of national legal jurisdictions. As a court of last resort, it enters the picture only when national authorities are unable or unwilling to investigate and prosecute cases that potentially fall under its jurisdiction. The ICC does not question the capability of our legal system, but it has expressed deep reservations about the government’s willingness to investigate the alleged crimes committed in the course of the war on drugs.

Second, the ICC is not blind to the political context of this apparent unwillingness. When certain individuals appear to be beyond the reach of the law because of the political power and influence they wield, that is a signal for the ICC to precisely enter the picture and assert its mandate. Impunity is its greatest enemy. The Philippine “situation,” as the ICC calls it, has indeed been marked by a display of political clout aimed at shielding the principal perpetrators from legal accountability. When then ICC Prosecutor Fatou Bensouda announced on Feb. 8, 2018, that her office had initiated an examination of these killings, Duterte responded by insulting her and announcing that he was withdrawing the country from the ICC. Without missing a beat, his allies in Congress effusively pronounced their support for the former president. More recently, after the ICC denied the Philippines’ request to suspend the ongoing investigation while the appeal against the ICC’s decision to resume preliminary investigation is pending, Mr. Marcos announced that this left the country with no recourse but to “disengage” and cut off all communication with the ICC.

Mr. Marcos has chosen the wrong issue in which to assert the nation’s sovereignty. He scoffs at international institutions like the ICC even as he puts the country at the disposal of America’s war machine. In doing so, he takes us back to the old colonial days.

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