Things to know about Duterte’s pet peeve ICC

Jodesz Gavilan

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Things to know about Duterte’s pet peeve ICC
President Rodrigo Duterte threatens to follow in the footsteps of Russian President Vladimir Putin and withdraw from the International Criminal Court

MANILA, Philippines – Before joining 20 other world leaders at the Asia-Pacific Economic Cooperation (APEC) Leaders’ Summit in Lima, Peru on November 17, President Rodrigo Duterte launched a tirade against the International Criminal Court (ICC).

Calling the tribunal “useless”, Duterte threatened to follow the action of his “idol” Russian President Vladimir Putin who formally withdrew his country’s signature from the founding statute of the ICC.  

The withdrawal, according to Russia’s foreign ministry, was appropriate as the court is “one-sided and inefficient”, and never really became truly independent. 

For Duterte, the ICC’s inability to help small countries like the Philippines is enough reason to pull out. He also cited human rights abuses in Syria and Iraq despite the ICC’s existence. 

Why? Tayo lang ang maliit na binugbog ng walang-hiya. Nagpatayan, it’s by the thousands, bombing children, women (We small countries get beaten up by the fools. The killings, it’s by the thousands, bombing children, women),” he said.

The ICC said that it is “closely following” Duterte’s intense anti-illegal drugs campaign due to alleged human rights violations. As of Wednesday, November 23, 4,942 suspected drug personalities have been killed in the war on drugs since July 1. (N NUMBERS: The Philippines’ ‘war on drugs’)

Despite the two leaders’ identical sentiments against the ICC, the two countries differ in one: Russia never ratified the treaty, while the Philippines did during the 15th Congress in 2011. 

What are the other important points to know about the ICC and how did the Philippines get involved with it?

How was the ICC established?

The ICC is the world’s first treaty-based permanent international criminal court. Its founding document is the Rome Statute that, among others, identifies jurisdiction and other rules on how to carry out prosecution.  

The Rome Statute was adopted by 120 states in 1998 and took effect in 2002 after at least 60 ratifications from various countries.

Its creation, according to the ICC website, stemmed from the many violations of international law during conflicts across the world, that were left unpunished . 

The Philippines became the 117th country to ratify the Rome Statute in 2011 when then president Benigno Aquino III signed the Instrument of Ratification. Congress then concurred in the same year. 

The late senator Miriam Defensor Santiago sponsored Senate Resolution No. 546 which pushed for the ratification of the Rome Statute.  

Santiago eventually became the first Filipino and first Southeast Asian to be elected ICC judge. Three years later in 2014, however, she stepped down without even assuming the position due to health reasons. She complained of chronic fatigue syndrome.

Former University of the Philippines (UP) College of Law dean Raul Pangalangan, meanwhile, was elected to the ICC in 2015. A delegate to the 1998 Rome conference, the Philippine government nominated Pangalangan based on his “established competence in international law.”

What are the types of crimes covered by the ICC?

The court’s main goal is to “help put an end to impunity for the perpetrators of the most serious crimes of concern to the international community as a whole, and thus to contribute to the prevention of such crimes.” 

These crimes, based on the Rome Statute, include genocide, crime against humanity, war crimes, and recently, crime of aggression. 

Genocide is having “specific intent to destroy in whole or in part a national, ethnic, racial or religious group” by killing its members, inflicting serious physical and mental harm, contributing to the physical destruction in whole or in part of a group, implementing ways to prevent births in the group, and forcibly transferring children from one group to another, among others.

Crimes against humanity, meanwhile, refer to serious violations that are part of a large-scale attack against a population. These crimes, according to the Rome Statute, include murder, rape, imprisonment, enforced disappearances, slavery, sexual slavery, torture, apartheid and deportation.

War crimes are identified as “grave breaches of the Geneva Conventions in the context of armed conflict.” These include, among others, the use of child soldiers, killing and torturing civilians and prisoners of war, attacks against hospitals, historical monuments, and other buildings specifically built for religion, art, education, science, and other charitable purposes.  

Crime of aggression refers to the use of the state of armed force against sovereignty, integrity, or independence of another state.  

INDEPENDENT. Judge Marc Perrin de Brichambaut, Judge Bertram Schmitt, Presiding Judge, and Judge Raul Cano Pangalangan of the Trial Chamber VII of the International Criminal Court. Photo from the ICC-CPI

When can the ICC intervene and how does it work?

Any state that ratified the Rome Statute automatically placed itself under the jurisdiction of the ICC. The UN Security Council, meanwhile, can also refer cases to the ICC such the cases of Sudan and Libya. 

As of March 2016, there are 124 state-parties to the ICC while 31 countries have signed, but are yet to ratify the Rome Statute (including the United States).

The ICC will act only when the national courts “are unable or unwilling to exercise jurisdiction.” The court, however, will not displace or overwrite the role of national courts but aims to complement it. 

It has 18 judges who are elected by the Assembly of State Parties. These judges oversee the diffferent stages of the proceedings which include the pre-trial, trial, and the appeal chambers. 

Once a case is referred to the ICC and is found to have sufficient evidence of committed crimes within its jurisdiction, a prosecutor will then begin an investigation. A state party, meanwhile, is required to assist and cooperate with the ICC in its investigations and other related processes. 

The ICC, however, does not have its own enforcement body or even a police authority. In making arrests and transfers of people to its detention center in The Hague, for example, the court needs the help of other countries.

Can countries withdraw from the ICC?

Yes, countries that may have signed and ratified the Rome Statute can still withdraw from the jurisdiction of the ICC. 

According to Article 127 of the Rome Statute, a state party can write to the secretary-general of the United Nations to express its desire to withdraw from the ICC. However, it will take effect one year only after the UN has received the letter. 

Criminal investigations and proceedings that are ongoing prior to the withdrawal will not be affected, requiring a state party to cooperate with the ICC.

Aside from Russia, 3 other countries have so far served a notice of pullout: Gambia, South Africa, and Burundi. Their withdrawals will take effect in late 2017.

Was the ICC able to convict anyone?

The ICC already handed down a guilty verdict in its more than 14 years of existence.

In 2012, at least 10 years since its establishment, the ICC released its first verdict. Militia leader Thomas Lubanga Dyilo of the Democratic Republic of Congo (DRC) was convicted of war crimes for using children under the age of 15 as soldiers. He was sentenced to 14 years, which he is currently serving in his home country. 

FIRST CONVICTION. The International Criminal Court in 2012 hands down its first conviction as Thomas Lubanga Dyilo is found guilty of the war crimes. Photo from ICC

German Katanga, meanwhile, was convicted of crimes against humanity and war crimes after attacking the village of Bogoro in DRC. He is facing 12 years of imprisonment, while possible reparations for victims are being decided upon by the ICC.

Just last September 2016, Ahmad Al Faqi Al Mahdi was found guilty of the crime of intentionally directing attacks on 9 mausoleums and one mosque in Timbuktu, Mali in 2012. He is serving a 9-year sentence.

Other high-profile cases in the ICC include those involving former Sudanese president Omar Al Bashir and Joseph Kony of the Lord’s Resistance Army in Uganda, among others.

Al Bashir is facing 5 counts of crimes against humanity, two counts of war, and 3 counts of genocide. Two warrants of arrest were released in 2009 and in 2010, but he is yet to be taken into custody. He won the elections in 2010 and 2015.

Kony, meanwhile, faces 12 counts of crimes against humanity (murder, enslavement, sexual enslavement, rape, inhumane acts of inflicting serious bodily injury and suffering) and 21 counts of war crimes (cruel treatment of civilians, intentionally directing an attack against a civilian population, pillaging, inducing rape, forced enlisting of children). He remains at large.

As of November 2016, the ICC is investigating 10 situations, 10 are under preliminary examination, and 3 are ongoing trials. These crimes were mostly committed in Kenya, Uganda, Congo, Sudan, Kenya, and Central African Republic, among others. –

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Jodesz Gavilan

Jodesz Gavilan is a writer and researcher for Rappler and its investigative arm, Newsbreak. She covers human rights and impunity beats, producing in-depth and investigative reports particularly on the quest for justice of victims of former president Rodrigo Duterte’s war on drugs and war on dissent.