THOUGHT LEADERS

12 considerations on
Duterte and the ICC
The weight of opinion is that this is a proper case of the ICC. There is immense
interest in moving this forward, and I think we will get some traction soon.

Tony La Viña
Published 2:40 PM, April 25, 2017
Updated 1:59 PM, April 26, 2017

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.

Damocles sword

COMPLAINT VS DUTERTE. Filipino lawyer Jude Sabio files a complaint against President Rodrigo
Duterte before the International Criminal Court. Photo courtesy of Jude Sabio.

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