Why I oppose an ICC case

I got the news from my DLSU public international law students who were debating (role playing senators) whether we should pull out of the International Criminal Court (ICC) and other human rights agreements. I actually thought that the student playing the Senate majority floor leader was just making it up when she announced this to the class.

I expected this. I also expect this preliminary examination to mature to a full-blown case. But a trial is years away, probably after Duterte’s term. It is likely that Duterte would never be held to trial given his age. But people like General Bato dela Rosa and other officials implicated will not be able to escape this. At some point, they will never be able to travel outside the Philippines again. It would be too risky if international arrest warrants were issued against them.

Personally, I am saddened by this. I didn’t work to make this happen. I tried very hard so we didn’t have to get to this point. I wish we could handle this ourselves. If only the government and the DDS did not demonize and marginalize the Commission on Human Rights; if only the administration did not weaken the independence of the judiciary and the Supreme Court; If only the killings stopped months ago and did not continue now: But they did not listen. Power does that to people, even good people.

It was clear this would happen. But in my national situation talks, my intelligent guess was June would be the earliest or even December 2018. But things went faster than that the usual ICC case. Jumping from a communication, submitted by lawyer Jude Sabio and Senator Antonio Trillanes, to a preliminary examination takes usually a couple of years. Usually, it does not mature at all. Less than 20 have ever got to this stage in nearly 10 years of the existence of the ICC. So, this is big, no matter how Malacañang might downplay this. Very big, indeed.

The next stage would be a preliminary investigation when the ICC prosecutor would determine if there was a case of crimes against humanity by President Duterte and other officials. If this will progress to that, I think the earliest would be next year, 2019, and then that phase will last two to three years. If ever, indictments could be issued 2021-22 just when President Duterte is finishing his term. The next president will have to decide whether to cooperate and have Duterte and other officials sent to The Hague for trial. Since I suppose hundreds or even thousands of murder cases will also be filed here in the Philippines against the same people, that new president must decide where justice will be done.

I have confidence in the ICC Prosecutor, Fatou Bensouda. Her statement on opening the preliminary examination for the Philippines, together with Venezuela, was measured, grounded, and rational statement. She gives us a lot of confidence. Clearly, her office will work on the preliminary examination with impartiality and independence. I believe she will decide this case, whether to go to the next stage of doing an investigation that could lead to indictments and a trial based on her discernment of jurisdiction, the legal and factual basis of the case, the admissibility of evidence, and justice.

If only the Duterte administration listened to me and others, we won’t be in this situation where a credible global legal body is evaluating whether we are a failed state in terms of rule of law and justice. That’s the point of the preliminary examination. That’s why I have oppose and continue to oppose the case. It’s an admission of a big failure not just of our government but our society, and especially the legal community.

The ICC rules do not require strict exhaustion of remedies. The spirit of the Rome Statue is that it is a last resort remedy but it does not require all remedies have been taken. Perception that there is no will to move forward on a remedy is enough to move a case forward. The ICC is a complementary process —it is not exclusive and can co-exist with ongoing domestic processes. I think the fact that people have died and are dying in the thousands without adequate investigation could be fatal for the President and his officials.

I congratulate the President for the mature response to this latest development. According to Harry Roque, his spokesman: “The President has said that he also welcomes this preliminary examination because he’s sick and tired of being accused of the commission of crimes against humanity. This is an opportunity for him to prove that this is not subject to the court’s jurisdiction because of both complementarity that domestic courts; and the fact that we have a domestic international humanitarian law statute in our jurisdiction are reasons enough for the court not to exercise jurisdiction.”

This is very good and I welcome this approach to the ICC. It’s the right thing to do.

Here is my unsolicited advice to the Duterte people if they want to avert a full-blown case against the President and other officials in the International Criminal Court:

Quadruple the budget of the Commission on Human Rights so it can investigate all the EJKs exhaustively and systematically. 

Stop attacking CHR Chair Chito Gascon, Human Rights Watch, and other human rights organizations. Let them do the work they have mandates to do.

Immediately stop the impeachment proceedings against Chief Justice Sereno as it is an attack on the independence of the judiciary.

Dismiss the cases against Senator Leila De Lima; her continuing detention in processes tainted with lack of due process, legitimized even by a Supreme Court decision, is exhibit number one that our legal and justice system is not working well.

Cooperate with the Supreme Court in the cases filed against Operation Double Barrel. Withdraw the motion asking for reconsideration of order to produce all drug war related documents.

The President should be careful with his speeches that could be interpreted as inciting to kill drug addicts. It does not matter what he thinks; it’s how it can be interpreted that is relevant.

Permanently end Tokhang and let PDEA be in control of the war against drugs. The Philippine National Police should just stay away now from this war.

To those who are calling for the withdrawal of the Philippines from the Rome Treaty, that is now irrelevant to this case. Withdrawal takes effect one year later at the earliest and does not affect the status of pending actions. We have foreclosed that option already. Besides, as many of my public international law classes in PUP and DLSU have concluded for the last two years, after extensive research and debate, the ICC membership matter is not just about Duterte.

This administration, as all administrations have been and will be, is just a blip in our history. But the country and our people needs the ICC—sadly, but our history bears that out, to protect us from each other. Even the DDS need the ICC as it is likely that when this administration is over, the next to govern could go after them and also violate their rights massively. That is the sense I am feeling from many, not all, of the anti Duterte people, the eagerness for revenge, to hit back for the bullying and the killing that is happening now. The DDS need the ICC. We all need the ICC.

I oppose an ICC case. Both the anti and pro Duterte factions will criticize me for this column. But I don’t care. What I care about most is the massacre of the poor stops totally and permanently.

Facebook page: Professor Tony La Viña (deantonylavs) Twitter: tonylavs

Topics: Why I oppose an ICC case

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