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Duterte and the ICC

Aug 14,2018 - Last updated at Aug 14,2018

Here’s the good news. Last February the International Criminal Court (ICC) at The Hague opened an inquiry into alleged crimes against humanity committed by President Rodrigo Duterte of the Philippines as part of his “war on drugs”.

Now for the bad news. True to form, Duterte replied that the Treaty of Rome which created the ICC was “all b***s***” and that the court was only backed by “white idiots”. He then announced that the Philippines was withdrawing from the ICC “effective immediately”.

Actually, he may not be able to do that unilaterally, because the Rome Treaty was ratified by the senate of the Philippines and probably has to be abrogated by the same body. (Legal opinions vary) But Duterte does control the senate and could do it eventually, if he cared about legality. 

He would still have legal problems, because the Philippines was subject to the treaty when he ordered many of his murders. Even if the senate did cancel the treaty, the country would stay subject to it for another year. But nobody is going to arrest Duterte now, and he does not seem worried about the future either.

Duterte later warned that any UN investigator arriving in the country would be arrested. Having settled the matter to his own entire satisfaction, he then went back to killing people. Death threats and death squads are his favourite political instruments and his weird political charisma would evaporate if he wasn’t killing people.

He is not too picky about who does the work for him, either. Ten months ago he pulled the national police from his “war on drugs” because they were “corrupt to the core”. (True) But the number of killings dropped because the specialised anti-narcotics force, the Philippine Drug Enforcement Agency, lacked the manpower to keep the killing rate up.

By May, therefore, Duterte was letting the national police take part in the drug raids again. His sole concession to reality was to gather a hundred police who were facing complaints of rape, kidnapping and robbery and tell them last week, on national television, that they too would face summary execution if they did not straighten up. “If you will stay like this, son of a bitch, I will really kill you,” he said.

So Duterte is undeterred by ICC’s interest in his case and the slaughter continues unabated. Official statistics say that 4,000 small-time drug dealers, and cases of mistaken identity, have been killed; the 77-page report submitted to the ICC by Filipino lawyer Jude Sabio says more than 8,000. Yet public approval of his actions is not far down from the landslide support he got in the 2016 election.

Everybody knows that in these circumstances, there is zero probability of Duterte having to answer for his actions before a court. Even later, when circumstances may have changed, the chances of bringing him to justice are slim. So what is the point of bringing an ICC case against him?

One reason is that this is the first major ICC investigation that targets a non-African regime. There were good reasons why all previous ones involved African regimes: The continent is home to one-third of the world’s countries, most of its dictatorships and most of its wars. Nevertheless, even competent, law-abiding African governments were starting to feel victimised and it helps to have an Asian country on the list.

But more importantly, this is part of a much broader initiative to bring the rule of law to a domain where legal justice was previously unavailable. Where can individual citizens turn to get protection of their own rights, including the right to life, against the government of a sovereign state that does not obey its own laws? Like that of Rodrigo Duterte.

Obviously, this enterprise is not doing very well at the moment. The governments of the great powers refuse to let any higher court have jurisdiction over their treatment of their own citizens and even lesser powers cannot be forced to accept the jurisdiction of the ICC, which has neither an army nor a police force. Duterte will probably never have to answer for his crimes.

No surprise here. Most crimes go unpunished everywhere, and there will never be universal justice. Nevertheless, the effort to create an international legal order that protects human rights is worthwhile, and not foredoomed.

The ICC was not created to overthrow people like Rodrigo Duterte, who was, after all, elected by the Filipino voting public. Its real function is provide a legal pathway for punishing the members of a criminal regime after it has collapsed and if possible to make that eventual legal reckoning so certain that it is even deters those criminals who are still in power.

So it is doing what it should and it’s far too early to say that its actions are futile.

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