The Marcosian choice: liability or legitimacy
If Raphael Pangalangan would have his way, the President should submit to the inquiry of the International Criminal Court into the drug war. This is handing over sovereignty to an international court where the US is not even a member for reasons of expediency.
The drug war is a human rights issue in a country where the liberal elite are hypocrites when it come to human rights. When they are in power and killings occur, it’s not a human rights issue. For example, no persons were made to account for the Mendiola massacre or the Hacienda Luisita massacre.
It is obvoious that the liberal elites are allies with the leftist-militant groups. The 1987 Constitution enshrined the establishment of the Commission on Human Rights as a constitutional body. The hypocrisy is obvious because the CHR has become a political weapon to use against political opponents. These opponents are the rightists who would like the leftist-militants and communists to be subject to the rule of law instead of having a get-out-of-jail-free card from their liberal allies. It’s one reason why the insurgency has gone on for more than half a century.
Rodrigo Duterte is never one to back down away from a fight. When the opposition filed a case against him at the ICC, he ordered the withdrawal of the Philippines from the Rome Statute, the treaty which nations ratify to formalize their membership in the ICC.
The International Criminal Court (ICC or ICCt) is an intergovernmental organization and international tribunal seated in The Hague, Netherlands. It is the first and only permanent international court with jurisdiction to prosecute individuals for the international crimes of genocide, crimes against humanity, war crimes and the crime of aggression. It is distinct from the International Court of Justice, an organ of the United Nations that hears disputes between states.
The ICC began operations on 1 July 2002, upon the entry into force of the Rome Statute, a multilateral treaty that serves as the court’s charter and governing document. States which become party to the Rome Statute become members of the ICC, serving on the Assembly of States Parties, which administers the court. As of March 2022, there are 123 ICC member states; 42 states have neither signed nor become parties to the Rome Statute.
Intended to serve as the “court of last resort”, the ICC complements existing national judicial systems and may exercise its jurisdiction only when national courts are unwilling or unable to prosecute criminals. It lacks universal territorial jurisdiction and may only investigate and prosecute crimes committed within member states, crimes committed by nationals of member states, or crimes in situations referred to the Court by the United Nations Security Council.
The ICC has four principal organs: the Presidency, the Judicial Divisions, the Office of the Prosecutor and the Registry. The President is the most senior judge chosen by his or her peers in the Judicial Division, which is composed of eighteen judges and hears cases before the Court. The Office of the Prosecutor is headed by the Prosecutor, who investigates crimes and initiates criminal proceedings before the Judicial Division. The Registry is headed by the Registrar and is charged with managing all the administrative functions of the ICC, including the headquarters, detention unit, and public defense office. The ICC employs over 900 personnel from roughly 100 countries and conducts proceedings in English and French.
The ICC held its first hearing in 2006, concerning war crimes charges against Thomas Lubanga Dyilo, a Congolese warlord accused of recruiting child soldiers; his subsequent conviction in 2012 was the first in the court’s history. The Office of the Prosecutor has opened twelve official investigations and is conducting an additional nine preliminary examinations. A total of 46 individuals have been indicted in the ICC, including Ugandan rebel leader Joseph Kony, former President Omar al-Bashir of Sudan, President Uhuru Kenyatta of Kenya, Libyan head of state Muammar Gaddafi, President Laurent Gbagbo of Ivory Coast and former Vice President Jean-Pierre Bemba of the Democratic Republic of the Congo.
While praised as a major step towards justice, and as an innovation in international law and human rights, the ICC has faced a number of criticisms from governments and civil society, including objections to its jurisdiction, accusations of bias, Eurocentrism and racism, questioning of the fairness of its case-selection and trial procedures, and doubts about its effectiveness.
Pangalangan’s audacity is such that he believes that Marcos’ decision, to submit his predecessor to the ICC’s jurisidiction for alleged crimes against humanity and genocide, as a result of the drug war, would gain him much needed credibility. This is tantamount to Pangalangan saying the that 31M Filipinos who voted for Marcos is not equivalent to a mandate, despite their being the majority of eligible voters.
Seventy-seven years later, command responsibility has developed to bind military and civilian superiors alike. What’s more, in Prosecutor v. Hadžihasanović, the International Criminal Tribunal for the Former Yugoslavia ruled that the doctrine applies even if a superior assumed their command after the subordinate’s crime had taken place. This means that newly elected superiors, such as Mr. Marcos, must investigate and punish criminal conduct, even if the crime was committed before his tenure. The failure to do so would give rise to his omission liability, which is punished, mind you, not only under international law but through Republic Act No. 9851—the Philippine Act on Crimes Against International Humanitarian Law, Genocide, and Other Crimes Against Humanity.
Now, shifting gears to the carrot from the stick: It is also in Mr. Marcos’ interest to cooperate with the ICC, not only to avoid liability but for the purposes of legitimacy.
Let’s call a spade a spade. Prior to Duterte, criminality due to drug use and the drug trade was rampant. The DILG estimated that 80% of barangays in the country were positive for drug dependents and those who made a living by being in the drug trade.
The war began even before Duterte was sworn in. Pushers started dropping like flies everyday. The count increased everyday. Duterte declared all-out war the minute he assumed office and encouraged drug dependents to surrender before they were caught in the middle. Rehab was the better option instead of being six feet under the ground. There were more than a million who surrendered nationwide.
The opposition weaponized the drug war as a political issue against Duterte. Authoritarian. Fascist. Dictator. Labels which put in right smack as a target of Western countries which placed an emphasis on human rights and due process. Duterte continued and warned local politicians to get out of the drug trade before he acted on the information he had about their illegal activities.
The strongest message was delivered to the infamous Parajinog’s of Ozamiz City. A raid on their compound left the patriarch dead and his daughter and brother arrested. Another brother would be arrested in Taiwan later, where he was in hiding.
Now that Duterte’s term has ended, the opposition would like nothing better than to see Duterte behind bars. The ICC parallel investigation was made an election issue. The candidates who ran and stated their position that Duterte should be prosecuted lost. Duterte remains hugely popular and while he didn’t endorse Marcos directly, that popularity has remained.
The question is, why are certain Filipinos obsessed with selling out to the US and European countries who continue to make an issue of human rights but aren’t exactly the paradigms of a humane and just society?
The US refuses to sign the Rome Statute for the simple reason that it doesn’t want any member of its armed forces or President prosecuted for war crimes. It’s an open secret that that US has overtly and covertly presided over regime-change in country’s where it has a pecuniary interest. This was true for the Philippines in 1986.
The establishment of an international tribunal to judge political leaders accused of international crimes was first proposed during the Paris Peace Conference in 1919 following the First World War by the Commission of Responsibilities. The issue was addressed again at a conference held in Geneva under the auspices of the League of Nations in 1937, which resulted in the conclusion of the first convention stipulating the establishment of a permanent international court to try acts of international terrorism. The convention was signed by 13 states, but none ratified it and the convention never entered into force.[citation needed]
Following the Second World War, the allied powers established two ad hoc tribunals to prosecute Axis leaders accused of war crimes. The International Military Tribunal, which sat in Nuremberg, prosecuted German leaders while the International Military Tribunal for the Far East in Tokyo prosecuted Japanese leaders. In 1948 the United Nations General Assembly first recognised the need for a permanent international court to deal with atrocities of the kind prosecuted after the Second World War. At the request of the General Assembly, the International Law Commission (ILC) drafted two statutes by the early 1950s but these were shelved during the Cold War, which made the establishment of an international criminal court politically unrealistic.
Benjamin B. Ferencz, an investigator of Nazi war crimes after the Second World War, and the Chief Prosecutor for the United States Army at the Einsatzgruppen Trial, became a vocal advocate of the establishment of international rule of law and of an international criminal court. In his first book published in 1975, entitled Defining International Aggression: The Search for World Peace, he advocated for the establishment of such a court. Another leading proponent was Robert Kurt Woetzel, a German-born professor of international law, who co-edited Toward a Feasible International Criminal Court in 1970 and created the Foundation for the Establishment of an International Criminal Court in 1971.
The establishment of an International Criminal Court evolved out of World War I and World War II. There was no trial of war criminals after World War I as it was deemed best to let sleeping dogs lie.
But World War II saw more atrocities being comitted, such as the Holocaust against the Jews and the Japanese pillaging of Southeast Asia. Ironically, the US as the leading power then and now, shielded war criminals who could contribute to their effort to combat communism. Certain Nazi officers, scientists and intelligence operatives were co-opted and put to work by the US for its goals and gains.
The same was true in Japan where the Emperor wasn’t prosecuted but only the principal members of the Imperial Japanese government and high-profile military officers who were deemed guilty even before the trials came out with their judgments.
The George W. Bush administration signed the American Service-Members’ Protection Act, (informally referred to as The Hague Invasion Act), to signify the United States’ opposition to any possible future jurisdiction of the court or its tribunals. During the administration of Barack Obama, US opposition to the ICC evolved to “positive engagement”, although no effort was made to ratify the Rome Statute. The subsequent Donald Trump administration was considerably more hostile to the Court, similar to the Bush administration threatening prosecutions and financial sanctions on ICC judges and staff in US courts as well as imposing visa bans in response to any investigation against American nationals in connection to alleged crimes and atrocities perpetrated by the U.S. in Afghanistan. The threat included sanctions against any of over 120 countries which have ratified the Court for cooperating in the process. Following the imposition of sanctions on 11 June 2020 by the Trump administration, the court branded the sanctions an “attack against the interests of victims of atrocity crimes” and an “unacceptable attempt to interfere with the rule of law”. The UN also regretted the effect sanctions may have on trials and investigations underway, saying its independence must be protected.
In November 2017, Fatou Bensouda advised the court to consider seeking charges for human rights abuses committed during the War in Afghanistan such as alleged rapes and tortures by the United States Armed Forces and the Central Intelligence Agency, crime against humanity committed by the Taliban, and war crimes committed by the Afghan National Security Forces. John Bolton, National Security Advisor of the United States, stated that ICC Court had no jurisdiction over the US, which did not ratify the Rome Statute. In 2020, overturning the previous decision not to proceed, senior judges at the ICC authorized an investigation into the alleged war crimes in Afghanistan. However, in June 2020, the decision to proceed led the Trump administration to power an economic and legal attack on the court. “The US government has reason to doubt the honesty of the ICC. The Department of Justice has received substantial credible information that raises serious concerns about a long history of financial corruption and malfeasance at the highest levels of the office of the prosecutor”, Attorney General William Barr said. The ICC responded with a statement expressing “profound regret at the announcement of further threats and coercive actions.” “These attacks constitute an escalation and an unacceptable attempt to interfere with the rule of law and the Court’s judicial proceedings”, the statement said. “They are announced with the declared aim of influencing the actions of ICC officials in the context of the court’s independent and objective investigations and impartial judicial proceedings.”
Following the announcement that the ICC would open a preliminary investigation on the Philippines in connection to its escalating drug war, President Rodrigo Duterte announced on 14 March 2018 that the Philippines would start to submit plans to withdraw, completing the process on 17 March 2019. The ICC pointed out that it retained jurisdiction over the Philippines during the period when it was a state party to the Rome Statute, from November 2011 to March 2019.
The US is noisy about human rights but doesn’t put its money where its mouth is. Think of US intervention in South America in the 60s through the 80s working with anti-communist organizations and governments which killed thousands of people. What of the School for the Americas in Fort Benning, where South American military officers were taught anti-insurgency strategies and torture. These were all violations of human rights but the US has never been held accountable for the consequences of their actions.
In the Philippines, the CPP/NPA/NDF has been waging an insurgency for more than 50 years since 1968 which has resulted in the deaths of thousands of Filipinos. Shouldn’t they be held accountable for the consequences of their actions. Personalities identified with this group are some of the most vocal in calling for the prosecution of Duterte. Yet they themselves are guilty of the same, if not worst atrocities, against their countrymen.
The US has been funneling monies to leftist-militant groups since Duterte won the Presidency. Between Rappler, Vera Files and human rights NGOs, you can see how the liberals have aligned with the leftist-militant groups against the “Marcos-Duterte dictatorship.”
Unfortunately, the 2022 elections had Filipinos delivering the strongest message to this alliance that they are done with internecine conflict. They would like to move forward specially in these very uncertain times.
The burden on Marcos isn’t about delivering Duterte to the ICC. The burden is putting an end to the insurgency. It is good to hear from National Security Adviser Clarita Carlos that the government will not pursue peace talks with the CPP/NPA/NDF.
Duterte made a sincere effort during his adminstration but they were not after peace but a seat at the table without the people’s mandate to which Duterte didn’t even want to consider given its absurdity.
The Philippines shouldn’t even reconsider its withdrawal from the Rome Statute. It is only right given there is the matter of sovereignty which is at stake. At the same time, we aren’t a failed state. Even if slow, our Judiciary is functioning. This is no different from the opposition’s other demand that Leila De Lima be freed from detention.
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