Duterte’s fate before the ICC

Finally, the International Criminal Court (ICC) will investigate the charges of crimes against humanity against President Duterte. The question in everybody’s mind now is: How will Mr. Duterte fare in the ICC?

The jurisdiction of the ICC is based on the charges used in the Nuremberg trials of Nazi war criminals, to wit: genocide, war crimes, crimes against humanity, and wars of aggression. Thus, part of the answer will be linked to cases decided by the war crimes courts after World War II. The events that happened in Malmedy, Belgium, on Dec. 17, 1944, and the outcome of this case, fits the proposed charges against Mr. Duterte.

In the “Battle of the Bulge,” Hitler’s last offensive in the West on Dec. 16, 1944, the 6th Panzer Army headed by SS Gen. Sepp Dietrich was the spearhead of the Nazi force assigned to seize the Port of Antwerp in Belgium. A US artillery supply column took a wrong turn and was ambushed by the Germans in the town of Malmedy on Dec. 17, 1944. The Americans surrendered. Notwithstanding that, they were executed by the SS troops in violation of the Geneva Convention on the treatment of prisoners of war (POWs).

As a background, in WWII in the Eastern Front versus the Russians, the Germans did not observe the provisions of the Convention. In the Western Front, the Wehrmacht (German Army) generally applied the Convention vs. Allied POWs. However, the SS (armed force of the Nazi Party) had a spotty record; in some instances, they observed the Convention, but in many cases they also transgressed the same. This unpredictable action of the SS became the crucial issue in the war crimes trial on the Malmedy massacre.

At the end of the war, Dietrich and the SS soldiers who had committed the massacre were tried before the war crimes court in Dachau, Germany. The key issue in the trial was the order Dietrich gave his troops regarding the treatment of POWs. It was revealed that two days before the offensive, one of his subordinates had asked him for instructions on how to deal with POWs. Dietrich replied: “Prisoners, you know what to do with them.” Dietrich, during his trial, did not deny this episode.

The reply is subject to double interpretation, given the record of the SS in the Western Front. On the basis of the foregoing facts, Dietrich was sentenced to life imprisonment by the Dachau Court. This was eventually commuted and he was released in 1956 after 12 years in prison.

In his war on drugs, President Duterte has used very explicit language on how to deal with drug suspects. Moreover, his instructions to kill suspected drug addicts was not confined to police officers but also extended to vigilante groups. Thus, he will have a difficult prospect of getting an acquittal based on the above evidence.

If the opposition wins the 2022 elections, expect the government’s wholehearted cooperation with the ICC, including turning over Mr. Duterte to the tribunal for trial and compiling evidence against him. However, a Duterte II administration will do the opposite. It will not surrender Mr. Duterte and will claim that the ICC cannot replace national courts, and further, that our judicial system is mature enough to try Mr. Duterte for his violation of human rights. This claim will be made notwithstanding the huge number of unsolved cases involving violations of human rights by the police.

Mr. Duterte will have a ready alibi to gain acquittal in a court under a Duterte II regime. On the West Philippine Sea dispute, the President had promised during the 2016 elections that he would jet ski to Panatag Shoal and plant the Philippine flag there in the face of Chinese encroachments. He claimed later that his statement was “joke only” and those who believed his statement are nitwits. Conceivably, he can use the same alibi and claim that the instructions he gave to kill drug addicts were “jokes only.” A kangaroo court in the model used to indict Sen. Leila de Lima could then accept that defense by Mr. Duterte.

Thus, our voters in the coming elections will have a big say on the outcome of this ICC case. Vote wisely.

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Hermenegildo C. Cruz is a retired career ambassador with 32 years of service in the Department of Foreign Affairs. In 1986-1990, he served as ambassador to Chile and Bolivia, two frontline countries in the global war on drugs that is going on to this day.