The International Criminal Court (ICC) isn’t as useless as President Rodrigo Duterte described it when he learned it was looking into the possibility of prosecuting him for crimes against humanity. But the ICC record over the last 16 years since it was established hasn’t been spectacular either.
The Court is mandated to prosecute political leaders who have committed the crime of genocide, crimes against humanity, and war crimes. But in a world rife with racist tyrants, neo-Nazi and fascist dictators, and other vermin who use state power to torture and murder, since 2002 it has managed to convict only a relatively few of those guilty of the crimes mentioned, most of them from the African continent. It has ordered the arrest of 33 others, however, and twenty-three trials are ongoing.
The ICC Office of the Prosecutor, as it announced two weeks ago, is looking into the killings in the Philippines. It has also started preliminary “examinations” on other countries, among them Afghanistan, Iraq, Nigeria, Colombia, Palestine, and Gabon, the political and military leaderships of which have been accused of war crimes and/or crimes against humanity.
The “examination” into the Philippine situation, particularly on the possibility that Mr. Duterte may be accountable and tried for crimes against humanity in connection with the killing without due process, meaning extrajudicially, of some 14,000 suspected illegal drug users and pushers including women and children, is in response to a complaint filed by a Filipino lawyer, who is incidentally in hiding for fear of his life. It is the first ICC case of its kind in Southeast Asia.
Mr. Duterte has downplayed the ICC “examination” while at the same time asking why he has been singled out when there are others who are presumably more, or equally accountable. Rather than singling out Mr. Duterte, however, the ICC is required by its internal procedures to look into such complaints. And not only is the number of extrajudicial killings (EJKs) in the Philippines since 2016 unprecedented, being way above the 3,000 killed during the 14 years of the Marcos dictatorship and the over 1,000 during the nine years of the Gloria Macapagal-Arroyo regime. It is also unequalled in Southeast Asia in recent times, with the possible exception of the killing of Rohingya Muslims in Myanmar (Burma).
But the regime’s problems with the international attention the number of casualties in its “war” on drugs is getting isn’t limited to the ICC examination and Mr. Duterte’s possible indictment for crimes against humanity. About 45 countries have also asked the United Nations to look into the alarming human rights situation in the Philippines about which international and domestic human rights organizations, churches, the independent media and civil society are understandably outraged.
The Duterte regime’s foreign affairs secretary, Alan Peter Cayetano, has assured the international community that the regime will cooperate with the UN, but will not welcome that body’s High Commissioner for Human Rights’ Special Rapporteur on Extrajudicial Killings and Summary or Arbitrary Executions Agnes Callamard, whom the regime has repeatedly insulted, defamed and mocked for supposedly prejudging it. Mr. Duterte had earlier challenged her to a debate, which Ms. Callamard rejected, that not being her function. Special Rapporteurs are mandated to get information on the specific country they’re tasked to investigate, rather than engage in polemics with its head of state.
In one more demonstration of the chaos and opacity so characteristic of the regime, despite Cayetano’s announced assurance of cooperation, Mr. Duterte ordered the police and military not to answer the questions of any UN investigator.
It’s not exactly something new for the UN. Every country with something to hide has taken the same path. State security forces have never been, for obvious reasons, UN rapporteurs’ only source of information. Their sources have included human rights defenders, civil society groups, the media, and the victims and kin of those whose rights have been violated.
As problematic as a UN investigation will be for the regime, which can happen because the Philippine judicial system is either unwilling or unable to look into the wholesale violation of the human rights the country as a signatory to international protocols is duty-bound to protect, there is another problem Mr. Duterte and his accomplices might have to deal with.
It is the possibility that once in another country, they can be arrested and tried by that country’s courts should its policies include recognition of the principle of “universal jurisdiction” over crimes so egregious and so damaging to the international community that it empowers any country to try the perpetrators even if the crimes were committed elsewhere.
An outstanding example of the use of this principle was Spain’s request to the United Kingdom to extradite the late former dictator Augusto Pinochet, who had been arrested in London in 1998, so he could be tried for human rights violations committed by his terrorist regime in Chile. Pinochet and his fellow generals overthrew in a US-supported coup d’etat the democratically-elected government of Salvador Allende in 1973, and proceeded to abduct, torture and murder thousands of men and women. Pinochet died before he could be tried in Chile, where democratic institutions had been restored.
Under the same principle of universal jurisdiction, the United States prosecuted the son of Charles Taylor, former president of Liberia, who was himself convicted by a UN special court for war crimes and is currently serving a 50-year sentence.
Spain has made ample use of the principle to try individuals from other countries. A Spanish court tried El Salvador officials for the murder of six Jesuit priests in that country, for example. Former US Secretary of State Henry Kissinger has himself been accused by a Spanish court of war crimes committed across several countries while he was serving the administration of Richard Nixon.
But mostly unremarked is the Philippines’ neighboring state Malaysia’s using the same principle of universal jurisdiction to try and convict former US President George W. Bush and former United Kingdom Prime Minister Tony Blair for the invasion of Iraq in 2003. In 2012, the Kuala Lumpur War Crimes Commission tribunal, after hearing testimony from, among others, victims of torture in Iraq and the US military base in Guantanamo, Cuba, convicted in absentia Bush, former Vice President Richard Cheney, then Secretary of Defense Donald Rumsfeld, and several other Bush administration officials for war crimes.
Although the methods and findings of the tribunal have been questioned, and Bush, Kissinger and others are still at large, Spain and Malaysia did demonstrate that any country that regards the acts of individuals in power as inimical to international order can drive it to prosecute them for crimes committed anywhere in the globe.
Both the ICC and the UN have also proven how fleeting is the protection power provides its wielders. In the current world order, any one, whether former dictator (Pinochet), or president for life (Taylor), is fair game for prosecution for the crimes they committed while so confidently ensconced in their gilded halls and palaces.
The universal cry for justice isn’t always heard in this far from perfect world, but sometimes it is. It’s a warning for the powerful to use power with restraint and with due regard for the rights of those they rule, and a call for civilized governance everywhere on the planet–including the Philippine part of it.
First published in BusinessWorld. Photo from the Office of the Presidential Adviser on the Peace Process .