12 considerations on Duterte and the ICC
Jude Sabio, a Mindanawon, UP Law graduate and lawyer of Edgar Matobato, has submitted to the Office of Prosecutor of the International Criminal Court (ICC) information that alleges that crimes against humanity have been committed by President Duterte and 11 other individuals. At this early stage, these considerations might help people understand what is happening and what could happen next.
First, there is no case or complaint yet. What Jude Sabio has filed is a communication of information in the Office of the ICC Prosecutor that alleges Duterte and 11 others have committed crimes against humanity and that the ICC should initiate proceedings against the 12.
Second, the alleged facts communicated include acts from the time of the President as mayor to the present. The language, which can be interpreted as admissions, of the President is now turned against him.
Third, the facts, if proven, do constitute crimes against humanity (acts of murder targeted against a segment of the population). Here, the distinction between drug pushers (criminals) and addicts/drug dependents is crucial. The President's lack of distinction when he says to kill all addicts could doom a defense of lawful enforcement. Personally, I have no opinion yet regarding guilt here, but I believe a preliminary examination and a full investigation could be valuable.
Fourth, 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 – it is not exclusive and can co-exist with ongoing domestic processes. I think the fact that people are dying in the thousands without adequate investigation could be fatal for the Duterte 12.
Fifth, I honestly do not understand why Senators Gordon and Cayetano would be included in this communication. I do not interpret their defense of Duterte as instigating the killings. There are many more who have been bloodthirsty in justifying the killings.
Sixth, the ICC receives thousands of these communications. Around 10,000 have been submitted already since it was created in the early 2000s, 23 cases have actually been filed with 9 convictions and one acquittal. All the cases have been against Africans. Duterte and his men would be the first non-Africans. One must note though that there are several special international criminal courts on the Balkan war crimes.
Seventh, after a communication is received, several things could happen – including the possibility that no action will be taken at all by the ICC Prosecutor. Perhaps, we might hear a press statement acknowledging the submission. Maybe not even that will happen. For sure, lawyers will be assigned to do due diligence on this, especially on jurisdiction. At some point, a preliminary examination could be launched. Only then would indictments be handed down and arrest warrants issued. At that point, it becomes politically interesting because the ICC would require the help of its State Parties to move forward on such arrests. Trial in The Hague would follow after arrests are made. The accused would be detained in special facilities in this legal capital of the world. It’s also in that facility where they will serve sentences.
Eighth, it takes years before a case can move forward from submission of communication to examination to the filing of charges. Trial and conviction could also last for years. My educated guess though is that the Duterte 12 case might move forward faster because the ICC Prosecutor herself had warned the government last October that its war against drugs, and especially the language of the President, could constitute a crime against humanity.
Proper case for ICC
I would also add that the Philippine situation is a top-of-the-mind issue for many international law and human rights experts, and that includes, I suppose, the Judges and Prosecutors of the ICC. I must say that among academics, the weight of opinion is that this is a proper case of the ICC. Among activists, this is obvious as well. I have seen some debate in legal articles but have never met an international law and human rights expert that have argued that the ICC cannot take cognizance of this case. In fact, for some, this is actually an ideal case as its filing can still prevent deaths.
There is also a lot of media attention on this, and that means there is interest to get a proceeding launched. That is always a factor even as the legal and judicial system tries to act rationally and independently.
Finally, there is a value in initiating the proceedings early in order to save lives. Some people are arguing that tens of thousands of lives of poor people could be saved if this process were accelerated,
Overall, this means there is immense interest in moving this forward and I think we will get some traction soon. My advice to government – our diplomats and lawyers – is to prepare for the next stage, which could come in a few months rather than years. There is no excuse for not being prepared and for being surprised here.
Ninth, if no examination is announced nor indictments laid down soon, then this is a perpetual Damocles sword on the Duterte 12. The examination or indictments could be announced next year, 5 years from now, or even 10 years from now. As far as I remember, crimes against humanity are imprescriptible. In a sense, liability for crimes against humanity is forever – criminally until you are alive and can stand trial, morally even after one's death. And for those who believe in a just God, there is accountability before that Absolute Being as well.
Tenth, I continue to be against an ICC case because I would rather we address the EJKs ourselves through our procedures. I wished the President and his people listened to advice to be more circumspect in language and to be discerning in targeting people in the war against illegal drugs. A change in strategy, along the line suggested by Vice President Leni Robredo, would actually be mitigating and probably avoid a case. Unfortunately, that advice seems to be falling on deaf ears and prosecution could be inevitable.
Eleventh, it's critical how the government responds to this latest development. Some humility – listening to international law experts for example – will help. Overreaction and counter attacks will be harmful to the cause of the Duterte 12.
Twelfth, with this latest development, withdrawal from the Rome Statute is no longer an option as that withdrawal can only take effect after one year. Such withdrawal might in fact precipitate the filing of the case. Once indictments are handed down, withdrawal from the ICC is irrelevant and immaterial. – Rappler.com