President Duterte recently castigated International Criminal Court Prosecutor Fatou Bensouda, saying she should explain why she decided to investigate him when there were other countries in Asia where large numbers of people were being indiscriminately exterminated. The Chief Executive said: “There are many massacres in all parts of Asia and, yet, you people want to go after me. You better clear that up because I will withdraw from the ICC.”
The ICC was acting on the complaint filed by lawyer Jude Josue Sabio in April 2017 against the President and 11 senior government officials. The complaint said crimes against humanity were being committed “repeatedly, unchangingly and continuously,” and killing drug suspects and other criminals had become “best practice” in the country.
Media reports quoted Bensouda, saying she was opening a preliminary examination of the complaint, citing allegations that thousands were killed for their alleged involvement in the drug trade, many of them extrajudicially. The ICC prosecutor said, depending on the facts gathered, she would decide whether to initiate an investigation, continue to collect more information or decline to initiate an investigation “if there is no reasonable basis to proceed.” Bensouda said she decided to open the examination after “a careful, independent and impartial review” of the situation in the Philippines.
The ICC is a permanent court established by the Rome Statute to prosecute persons for the most serious international crimes: Genocide, crimes against humanity, crimes of aggression and war crimes. Under the Rome Statute, the ICC can only investigate and prosecute the four core international crimes in situations where states are “unable” or “unwilling” to do so themselves.
Clearly, the ICC cannot replace Philippine courts. Besides, certain individuals questioning the legality of Duterte’s war on drugs had already brought the issue before the Philippine Supreme Court. And we have adequate laws and remedies in our country to address the issue of alleged extrajudicial killings, which negate the need for the ICC to initiate any investigation.
Here’s the peculiar part: As an incumbent President, Duterte could not be charged in a criminal case. The Chief Executive said the ICC treaty provisions that dealt with extrajudicial killings were not published in the country, as required by Philippine law, and so they could not be implemented here. The President said: “There is no provision of extrajudicial killing. It is not found anywhere. How can you accuse me when the law says the treaty we entered into [Rome Statute] forms part of the laws of the land?”
A lawyer and former prosecutor, Duterte added any penal statute required publication to be enforceable. “Was there any publication? None,” the President said.
Presidential Spokesman Harry L. Roque Jr. said the President was confident the ICC would not reach the formal investigation stage, because it would find no basis for the complaint.
However, records show that the ICC has its own fallibility. For example, in a UN Dispatch article published last year, Kimberly Curtis said: “In the past, critics lambasted the ICC for such one-sided justice. One example is the case of Northern Uganda, where the court investigated crimes committed by the Lord’s Resistance Army but not those committed by the Ugandan forces battling them. Likewise, in prosecuting the 2011 postelection violence in Cote d’Ivoire, only alleged crimes committed by forces loyal to former president Laurent Gbagbo were investigated, while forces loyal to President Alassane Ouattara were let off the hook. These choices hurt the reputation of the court and led to accusations of bias, accusations the ICC is still trying to shake off.”
The ICC can keep its reputation by upholding the principle of fairness in the performance of its mandate.