The Irony of Joining the International Court of Justice

The clamor to return the Philippines to the fold of the International Criminal Court (ICC) is getting louder. What’s driving the noise is former president Rodrigo Duterte’s wading back in Philippine politics after his daughter, the Philippine Vice President Sarah Duterte was stripped of her confidential funds in the proposed FY-24. Duterte took umbrage and verbally went after the Lower House representatives with implied threats. It was vintage Duterte, but the unwelcome intrusion got the conversation going again regarding rejoining the ICC and having the former strongman hauled to the international tribunal.

The Philippines (President Joseph Estrada) signed the Rome Statute in 2000. But his successor, Gloria Macapagal-Arroyo refused to submit the treaty to the Philippine Senate for concurrence. President Benigno Aquino III had it done in 2011 making the Philippines the 117th signatory to the ICC.

When Rodrigo Duterte campaigned and became president, he declared his war on illegal drugs and implemented a brutal, albeit bloody drug war. The actual death count depends on who releases the figures. Government numbers were much lower than what is being publicly reported from other non-governmental sources. The bloody war resulted in a complaint being filed to the ICC accusing Duterte of crimes against humanity, one of the requisite crimes envisioned by the Rome Statute.

The ICC’s special prosecutor’s announcement for a preliminary investigation prompted Duterte to withdraw the Philippines from the ICC in 2018. The legal mumbo-jumbo began in earnest as Duterte’s case progressed, appealed, and again appealed on jurisdictional grounds. The legalities of all these are for the legal luminaries to dissect regarding merits. This piece is about the act itself of joining and the Leftist groups clamor for the country to rejoin the Rome Statute.

Perhaps, revisiting some important contexts will illuminate a faux patriotic fervor of surrendering the country’s sovereignty to an international human right body while bigger democracies such as the United States are staying away from it. Their judicial system can handle cases involving war crimes, genocide, crime of aggression, or crimes against humanity. Being a signatory to the treaty (and the U.S. is not), a country is duty bound to submit to the jurisdiction of the international tribunal and have one or more of its citizens tried.

It is instructive to understand the ramifications of membership to the international court. The Rome Statute envisioned countries being ruled by despots where international norms are set aside with impunity and its own constitutional safeguards are no longer observed. Thus, the need for the international community’s intervention. During the term of U.S. President George W. Bush, America was involved in foreign campaigns including the invasion of Afghanistan and Iraq in 2003 in response to the 911 attack of the United States.

Such wartime postures opened U.S. military servicemen and governmental entities to war-related crimes. The Hague Invasion Act, a federal law signed by Bush was to preempt such criminal action being posed on American citizens (i.e., deployed American military troops prosecuting the war), including the president. The Act gave the president powers to use any means necessary to prevent American citizens being hauled and prosecuted in the Hague’s international court.

When ICC Special Prosecutor Fatou Bensouda (same prosecutor who investigated Duterte) tried to go after U.S. military for alleged war crimes of torture in Afghanistan, then President Donald Trump threatened to block ICC investigations including in Palestine where “criminal conduct” by U.S. and Israeli personnel can be uncovered. The U.S. imposed sanctions on Bensouda, and another senior ICC official were carried out by virtue of Trump’s executive order. The sanctions delayed any ICC investigation while the prosecutor Bensouda, who was sanctioned, found her personal finances (i.e., credit cards) affected that prevented her ability to travel.

The United States president under the Hague Invasion Act exercised every means possible to prevent ICC investigation into its citizens, even if it could. Under the Rome Statute, the state party has the duty to exercise criminal jurisdiction over those responsible for international crimes and it is only when the state is unable or unwilling to “genuinely carry out the investigation and prosecute the perpetrators.” It is therefore baffling why Filipino citizens would rather throw their former president under the bus than have its own judicial system prosecute the case. This is not to shield Duterte from prosecution, but rather for the government to understand what is at stake.

Duterte’s case is interesting for several factors. According to the former Justice Secretary Menardo Guevarra, the government is pursuing the investigation on the drug war and lamented that the ICC has not given enough time for the court system to run its course. The Philippines is a democratic form of government patterned before the United States that observes due process including appeals. What exactly is “genuinely carrying out the investigation and prosecution” in a country where legal cases can languish in court for years?

There are constitutional issues that are involved and need to be threshed out by the Philippine judicial system. For example, the drug war was a campaign promise that got him elected and became a declared state policy in response to the worsening situation throughout the country involving illegal drugs including turning into a narco-state. Nobody challenged the drug policy in court, not even the purported extra-judicial killings that were attendant to the illegal drug campaign.

Did that give Duterte cover on constitutional grounds that he was immune from prosecution while performing an official act. If there were infirmities in Duterte’s war, those were not brought out and settled in court for unconstitutional provisions. Precisely why the court system all the way to the Supreme Court must be given the time it needs to rule on the constitutionality of it before an outside foreign court intervenes. That much is allowed by the Rome Statute. If he has that kind of immunity, then what is there for an international tribunal to prosecute?

Human rights advocates clearly do not trust the Marcos administration to go after Duterte, a political ally. Probably, but the same can be said of other former presidents because of political alliances. Still, it is not an excuse to punt the case. Leftist organizations only see and condemn human rights violations committed by the government. The atrocities committed by the NPA are being “legitimately” labeled in pursuit of political ends. There are other groups in the Southern Philippines who are involved in terroristic acts, yet their leaders are not being brought before ICC. So then, what gives? The Marawi bombings and Maguindanao massacres could easily fall under the statute but there is really no clamor for international justice.

The bigger problem for the Philippines is that it is a dysfunctional democracy. On the one hand, citizens cry sovereignty when it involves China’s aggression in West Philippine Sea but would cry a whimper when U.S. servicemen implicated in human rights violations and are whisked away from Philippine judicial reach because of an agreement, “Non-Surrender Agreement,” that GMA signed with then President Bush, providing immunity to U.S. Troops.