On Saturday, the newspapers blared that the Chief Prosecutor of the International Court has warned Philippine authorities of prosecution for extrajudicial killings. What is the ICC and can President Rodrigo R. Duterte be prosecuted in that court? What crimes fall under the jurisdiction of the ICC?
The ICC is part of the world’s global justice system and sits in The Hague, Netherlands. It came into force on July 1, 2002 after 60 countries ratified the Rome statute creating the ICC. As of March 2016, 124 sovereign states have become state-parties. The Philippines ratified the treaty on August 30, 2011. The ICC can take jurisdiction over three crimes only: genocide, crimes against humanity and war crimes. Genocide is the killing or destruction of any ethnic group or race; or, the imposition of any measure to prevent births within that group, etc. War crimes, on the other hand, are grave breaches of the Geneva Convention such as torture or inhuman treatment of prisoners of war including using them for biological experiments; extensive destruction of property without justification, and several others. Crimes against humanity refer to the widespread or systematic attack directed against any civilian population pursuant to, or in furtherance of, a State policy to commit such an attack.
The Court’s first conviction was in 2012 against Thomas Lubanga, the leader of the militia in the Democratic Republic of Congo. He was convicted for using children in the country’s conflict. A high-profile case tried by the ICC was that of the former president of the Ivory Coast, Laurent Gbagbo who was charged with murder, rape, persecution, inhumane acts and other forms of sexual violence. Gbagbo who ran for reelection was narrowly defeated in a runoff. He insisted he won and refused to cede power to the winner. A political upheaval ensued resulting in the persecution and death of more than 3,000 of his perceived political enemies. Another president, Uhuru Kenyatta of Kenya, was charged by the ICC for post-election ethnic violence where 1,200 died. The ICC, however, later dismissed the case against Kenyatta for failure of the prosecutors to establish their case.
Can President Duterte or any official in his administration be prosecuted for crimes against humanity in relation to the deaths connected with the government’s war against drugs? The answer is riddled with many “ifs.” In the first place, the ICC is a court of last resort. It can only intervene and take jurisdiction if the national authorities or the state refuses or fails to prosecute the offenders of such serious crimes. In the administration’s war against drugs, investigations are being done to determine the perpetrators of the so-called extrajudicial killings. The police officials have maintained their position that the ones responsible for the killings are the moneyed drug lords themselves who kill pushers to eliminate witnesses who can point to them. The police also say that those killed by their men resisted arrest and fought back. They further add that many police officers have, in fact, been killed or injured too in the fight against drugs. It is reported that drug lords and big-time pushers have high-powered arms. As a result of the government’s war on drugs, many suspects have surrendered and many cases have been filed against those accused of crimes relating to the trade of illegal drugs. Arguably, the government is working toward a legitimate objective, that is, to eradicate a menace that has been plaguing the country for years resulting in the commission of heinous crimes by drug-crazed criminals. There is no systematic destruction or persecution against any identifiable group or collectivity based on political, racial, ethnic, cultural, religious, or gender classification. Neither is there a systematic attack on civilian populations in furtherance of a state policy to carry out such attacks. What the government authorities are pursuing in the war against drugs are criminals of unidentifiable nationalities, ethnicity, social standing, or political leaning, if they have any at all.
How do cases commence in the ICC for the prosecution of persons? The ICC prosecutor begins an investigation if a case is referred to her or him either by the UN Security Council or by a ratifying state. The prosecutor can also take independent action if and when a panel of ICC judges approve that an investigation be undertaken. Given these pre-conditions before any investigation may even be commenced against the president or any of his officials, the warning by the ICC prosecutor should be taken by the Duterte administration as, at best, a warning that despite the legitimacy of the government’s objective in fighting drugs, it has to mind the rule of law.
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