Can Duterte avoid international criminal prosecution?

I write this with a sense of urgency. As I have written in an earlier column, I am against President Duterte being charged at the International Criminal Court for the human rights excesses being committed in the war against drugs. Such a case, in my view, is legally premature and moreover will result in a severe backlash on human rights advocates in the country, endangering many of us. Unfortunately, the filing of charges against the President will contaminate the many good initiaves that the government is doing. I am thinking particularly of the peace processes with the Moros and the communists where the end games seem so promising.

There are also serious diplomatic, foreign policy, political and economic consequences if such a case is filed. First, we will be perceived as a failed state. Second, the President and other officials will not be able to travel freely in the world if international warrants are issued against them. He would not be able to go to Apec, for example, nor will his officials be able to benefit from interaction with their peers. Third, our hosting of the Asean summit next year, which includes meetings with other heads of states and senior officials of other countries and groupings, will be seriously compromised. Fourth, all of these will result in major economic damage because no one would want to invest in a failed state. It’s ironic because the President launched the war against drugs so we would not become a failed state. Instead, we end up being branded as one on the first year of his presidency.

I am very alarmed because the International Criminal Court’s chief prosecutor issued and published in its website this self-explanatory statement on Thursday:

“My Office is aware of worrying reported extrajudicial killings of alleged drug dealers and users in the Philippines, which may have led to over 3,000 deaths in the past three months. I am deeply concerned about these alleged killings and the fact that public statements of high officials of the Republic of the Philippines seem to condone such killings and further seem to encourage State forces and civilians alike to continue targeting these individuals with lethal force.

Extrajudicial killings may fall under the jurisdiction of the International Criminal Court (“ICC” or “Court”) if they are committed as part of a widespread or systematic attack against a civilian population pursuant to a State policy to commit such an attack.

The Republic of the Philippines is a State Party to the ICC and as such, the Court has jurisdiction over genocide, crimes against humanity and war crimes committed on the territory or by nationals of the Philippines since 1 November 2011, the date when the Statute entered into force in the Philippines.

Let me be clear: any person in the Philippines who incites or engages in acts of mass violence including by ordering, requesting, encouraging or contributing, in any other manner, to the commission of crimes within the jurisdiction of the ICC is potentially liable to prosecution before the Court.

My Office, in accordance with its mandate under the Rome Statute, will be closely following developments in the Philippines in the weeks to come and record any instance of incitement or resort to violence with a view to assessing whether a preliminary examination into the situation of the Philippines needs to be opened.

It should be noted that the ICC is a court of last resort and can only intervene if a country is found to be unwilling or unable to prosecute crimes—including war crimes, crimes against humanity and genocide—under its statute. Unfortunately, the way the Senate has handled the issue of extrajudicial killings, with its hasty conclusion that the administration is not responsible for the killings, has just confirmed that we cannot be trusted in our own internal proceedings.

The only hope for President Duterte now to avoid criminal prosecution is the Commission on Human Rights; if it is shown that it is allowed to do its work to investigate and exact accountability for the killings, then we might be able to avoid this prosecution. Duterte needs the CHR to do its job very well. If the world is satisfied that the CHR is doing that job unimpeded and excellently then maybe it will give us a chance to make our own corrections. In this sense, CHR chairman Chito Gascon, with his colleagues, is now the best friend, the only remaining hope of President Duterte not to be criminally prosecuted.

It should also be also be pointed out that, while the ICC is always the last resort, the Court can also take preventive measures. If it is convinced that in fact three million people are about to be slaughtered in the Philippines, no doubt it will act. No doubt.

Will no one in this government be brave enough to tell the President that this is coming? There are many good lawyers, seasoned diplomats and wise senior officials in the Duterte government. My hope is that they give the right counsel to the President and that he will listen to them. The sad thing here is that it does not require rocket science to know how to avoid this.

The truth is that this is not about the facts on the ground mainly: it’s about his language and that of his officials. All of them are constantly implicating themselves; what President Duterte and his officials actually thinks or intends is immaterial. It’s their objective words and its link to the situation on the ground that matters. I have scanned the international legal expert opinion on this and while there is academic debate about the appropriateness and timing of a case against Duterte, the condemnation for the Duterte’s words and the killings is universal. I doubt whether the Philippines can find good international law experts who will side with the President and his officials when the case is filed.

The fact that the ICC prosecutor herself has stated that she is considering launching an investigation tells us that the words and actions of President Duterte have now crossed over to the more formal stage. Things could go quickly from now on. Thankfully, we have very able lawyer-diplomats in The Hague who could monitor this and help the country respond quickly to developments.

I have to say that I feel the die is cast. It’s like a Greek tragedy where the protagonists are foretold what will happen next and still they persist on the behavior which will cause the death and the mayhem. I am pessimistic that an international criminal prosecution can still be avoided. The stakes are very high on this and God help us all when that happens.

 

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