EDITORIAL
The trial of the ‘punisher’: Can the ICC rise above criticisms?
In his initial appearance at the International Criminal Court (ICC), it seems that Former President Rodrigo Duterte, as well as the alleged victims of his War on Drugs, is rightly tried before a court that dispenses justice fairly and without undue delay. Unlike our local trial courts, which continue to face the challenges of clogged dockets and scarce resources coupled with a limited number of personnel, the ICC appears to be well-equipped and adequately staffed to accord the former president with a fair trial, to deliver justice for the victims, if warranted, and to uphold international human rights standards.
But Duterte’s arrest, fiercely criticized by his supporters as kidnapping, has sparked public outrage among his supporters who accuse Marcos Jr.’s administration of political persecution. As news reports show, the administration implemented the arrest warrant issued by the ICC allegedly based on the country’s membership in the INTERPOL as a matter of comity and mutual cooperation with the international community and under Section 17 of RA 9851, which provides that the Philippines may surrender suspected or accused persons in the Philippines to the appropriate international court for crimes against humanity.Despite these justifications, the administration is accused of weaponizing the ICC and the impeachment proceeding to put an end to the Dutertes, who are potential threats to whatever the administration is planning for the 2028 national elections.
Many Filipinos, primarily supporters, argued that Duterte should have been tried before Philippine courts and not at the ICC, which has no jurisdiction as the Philippines has withdrawn from the Rome Statute. The Philippine justice system is also working, and the ICC should have respected our sovereignty under the complementarity principle. Proponents of the trial assert that the ICC retains jurisdiction based on acts committed while the Philippines was still a signatory. Section 17 of RA 9851 in Philippine law also provides a basis for cooperation with international courts for crimes against humanity, underpinning the legal grounds for Duterte’s trial. This legal framework ensures that serious human rights violations do not go unpunished and that international human rights standards are upheld.
Why the ICC when we have RA 9851 punishing crimes against humanity and our local courts are functioning? A three-judge ICC panel concluded that the Philippine government had failed to substantiate its assertions that it was taking sufficient action to investigate and prosecute the killings that took place during former President Duterte’s administration. They stated that the Philippine government’s domestic initiatives “assessed collectively, do not amount to tangible, concrete and progressive investigative steps in a way that would sufficiently mirror the court’s investigation.”
But Marcos Jr., whose administration handed over Duterte in the hands of the ICC earlier, contradicted these findings that the International Criminal Court (ICC) has no jurisdiction over the Philippines as it remains to have a working judicial system and law enforcement mechanisms.
Ordinary Filipinos also assert that our justice system is working and view the ICC’s assumption of jurisdiction as an intrusion into our sovereignty. However, self-acclaimed Filipino experts in International Humanitarian Law quickly dismissed this argument with a spew of legalese justifying the surrender of a Filipino in the hands of the ICC as valid under our local laws and international law principles, most of which ordinary Filipinos do not understand.To the mind of the ordinary people, our courts should hear the case of Duterte as he committed the alleged crimes here.
While our local courts and the Philippine justice system may be hounded with challenges, the ICC is a beleaguered court, as some expert observers describe.The conspicuous absence of major powers like the United States, Russia, and China from the International Criminal Court (ICC) casts a long shadow over the ideals of international justice. The international tribunal is also accused of politicization and bias. Critics argue that the ICC disproportionately targets African individuals and situations, suggesting a bias in its investigations and prosecutions. Some say that the ICC prosecutor has a double standard, with a quick response to cases in Ukraine but a lack of action in Palestine and Israel. There are also allegations of a lack of sufficient checks and balances on the ICC prosecutor’s and judges’ authority, potentially leading to politicized prosecutions or other abuses. These criticisms did not just come from China, who recently warned the court not to politicize Duterte’s case. These are observations of legal scholars who have been monitoring andstudying the court and its performance since it was established in 2002.
Can the ICC rise above these criticisms?
Duterte’s conviction or acquittal may not be the defining moment for the court. While the superpower countries continue to frown upon the tribunal’s legitimacy and efficacy, these issues will remain a sword of Damocles that the human rights tribunal needs to transcend. The war on drugs has been a divisive issue in the Philippines. Let us not forget that Duterte fell in the hands of the court out of a political squabble. Any judgment, whomever it favors, will suffer the same criticisms.