The ICC case against Duterte

On November 17, 2016, President Rodrigo Duterte, before heading to Lima, Peru, told the media he just might order the Philippines’ withdrawal from the International Court of Justice (ICC). He got the idea following Russian President Vladimir Putin’s withdrawal of Russia’s membership from ICC, who the day before had signed an order to formally withdraw Russia’s signature from the founding statute of the ICC. He claimed that ICC was “one-sided and inefficient” and that the ICC had failed to live up to ”hopes of the international community.”

Russia signed the Rome Statute in 2000 that set up the ICC, the world’s first permanent court that investigates genocide, war crimes, and crimes against humanity. Russia said she was unhappy with the ICC’s treatment of the case on Russia’s short war with Georgia in 2008, saying the ICC ignored the aggression of Georgia against civilians in South Ossetia – a pro-Russia separatist region of Georgia. But the truth of the matter is it was Russia who invaded Georgia in support of South Ossetia’s secession from Georgia. Many believed that Putin’s withdrawal was triggered by ICC’s published report that classified the Russian annexation of Crimea as an “occupation.”

Other countries that had served notice to withdraw from the ICC are Gambia, South Africa, and Burundi, who had charged that the ICC had been used “for the persecution of Africans and especially their leaders, while ignoring crimes committed by the West.”

To date, the ICC has opened investigations into 10 situations in: (1) the Democratic Republic of the Congo; (2) Uganda; (3) the Central African Republic I; (4) Darfur, Sudan; (5) Kenya; (6) Libya; the (7) Côte d’Ivoire; (8) Mali; (9) the Central African Republic II; and (10) Georgia. The ICC has publicly indicted 40 people. It has issued arrest warrants for 32 individuals and summonses to eight others. Seven persons are in detention. Proceedings against 23 are ongoing: 10 are at large as fugitives, four are under arrest but not in the Court’s custody, eight are at trial, and one is appealing his conviction. Proceedings against 17 have been completed: three have been convicted, one has been acquitted, six have had the charges against them dismissed, two have had the charges against them withdrawn, one has had his case declared inadmissible, and four have died before trial. [Source: Wikipedia]

Among them was the late dictator Muammar Gaddafi and his son Saif al-Islam Gaddafi, who were both killed in the aftermath of the Libyan revolution.

So far, four had been convicted, to wit:

Jean-Pierre Bemba Gombo – A politician in the Democratic Republic of the Congo. He leads the Movement for the Liberation of the Congo (MLC), a rebel group turned political party. He was elected president in 2006 and senator in 2007.

On May 24, 2008, he was arrested near Brussels on the basis of an arrest warrant issued by the ICC. He was charged with two counts of crimes against humanity and three counts of war crimes. On March 21, 2016, he was convicted on these charges. On June 21, 2016, he was imprisoned on a 19-year sentence following a landmark conviction at the ICC. In September 2016, he appealed against his conviction alleging a mistrial.

He awaits further sentencing for corruptly influencing witnesses through means of bribery during his trial for war crimes.

Germain Katanga (aka Simba) – A former leader of the Patriotic Resistance Force in Ituri (FRPI) in the Democratic Republic of the Congo. On October17, 2007, the Congolese authorities surrendered him to the ICC to stand trial on six counts of war crimes and three counts of crimes against humanity. The charges include murder, sexual slavery, rape, willful killing, and directing crimes against civilians, to name a few. On March 7, 2014, the ICC convicted Katanga on five counts of war crimes and crimes against humanity as an accessory to the February 2003 massacre in the village of Bogoro. The verdict was the second-ever conviction in the 12 years of operation of the ICC. It followed the 2012 conviction of Thomas Lubanga Dyilo.

Thomas Lubanga Dyilo – A convicted war criminal from the Democratic Republic of the Congo, he was the first person ever convicted by the ICC. He led the Union of Congolese Patriots (UPC) and was a key player in the Ituri conflict. On March 17,2006, her became the fist person arrested under a warrant issued by the ICC. He was charged of “conscripting and enlisting children under the age of 15 and using them to participate actively in hostilities.” On July 10, 2012, he was found guilty and sentenced to 14 years of imprisonment.

Ahmad al-Faqi al-Mahdi (aka Abu Tourab) – He was a member of Ansar Dine, a Tuareg Islamist militia in North Africa. In 2006, he pleaded guilty in the ICC for the war crime of attacking religious and historical buildings in the Malian city of Timbuktu. He was the first person convicted by the ICC for such a crime. He was sentenced to nine years in prison.

Complaint against Duterte

Last October, Sen. Leila de Lima called for an international investigation into the country’s drug war, which had left 4,000 people dead during Duterte ‘s first four months in office. De Lima, a former justice secretary said that the extrajudicial killings (EJKs) must end and that the ICC should investigate them.

The following month, Duterte came to the attention of the ICC. An ICC judge said she was closely monitoring Duterte’s “war on drugs” for possible human rights violations.

Last April 24, attorney Jude Sabio, a lawyer for confessed hitman Edgar Matobato, filed a 77-page criminal complaint against Duterte and at least 11 senior government officials in the International Criminal Court (ICC) in The Hague, the Netherlands. The complaint alleges that Duterte and the others were liable for murder and called for an investigation, arrest warrants, and a trial. Sabio said that Duterte “repeatedly, unchangingly and continuously” committed crimes against humanity and that under him, killing drug suspects and other criminals has become “best practice.”

The complaint was based on the testimony of Matobato and another confessed hitman, retired policeman Arturo Lascanas, and statements from rights groups and media reports, including a recent Reuters series detailing the killings.

The question is: What are the chances of convicting Duterte based on Sabio’s complaint? It’s not easy. And the fact that Duterte would still be president until May 2022, it would be very unlikely to bring him to trial.

The ICC’ing of Duterte

Since 2002, the ICC has received over 12,000 complaints or communications, of which nine have gone to trial and six verdicts have been delivered. The ICC has no powers of enforcement, and any non-compliance has to be referred to the United Nations or the court’s own oversight and legislative body, the Assembly of States Parties.

Of the six verdicts rendered by ICC, four were convicted as mentioned earlier. But it took the cooperation of their governments to bring them to justice. In the case of Duterte, it would be virtually impossible for the Philippine government to turn him over to ICC. So why even file a complaint against him?
While Duterte is safe from ICC prosecution for as long as he remains on Philippine soil, he can be served an ICC arrest warrant in another country where he may be visiting, provided that country is a signatory to the Rome Statute and would cooperate with the ICC, as in the case of Jean-Pierre Bemba Gombo.

At the end of the day, the ICC case against of Duterte, while it may seem like an exercise in futility, would bring the killings to the consciousness of the international community who can then use political pressure and economic sanctions including the freezing of foreign bank accounts of Duterte and his cohorts.