The
ICC is an independent judicial institution that can investigate and prosecute
individuals for war crimes, crimes against humanity, genocide, and the crime of
aggression. The ICC only intervenes when national authorities are unwilling or
unable to do so. The Philippines was a member of the ICC from 2011 to 2019,
when it withdrew from the Rome Statute, the treaty that established the ICC.
However, the ICC still has jurisdiction over crimes committed on the territory
of the Philippines between November 2011 and March 2019, the period covered by
the ICC’s investigation.
The
ICC’s investigation focuses on the alleged crimes against humanity committed by
former President Rodrigo Duterte and his administration in the context of the
“war on drugs” campaign, which resulted in thousands of extrajudicial killings
of suspected drug users and dealers, mostly from poor urban communities. Human
rights groups, media outlets, and the ICC prosecutor have documented evidence
of police falsifying evidence, planting weapons and drugs, and executing
suspects without due process. The Philippine government has denied these
allegations and claimed that the ICC has no authority to interfere in its
domestic affairs. In this blog post, we explore the viewpoint that the ICC must
exercise caution in intervening in the Philippines.
Preservation of National
Sovereignty:
The
preservation of national sovereignty is the idea that each state has the right
and responsibility to govern itself without external interference. This
principle is often invoked by states that oppose the intervention of international
institutions or other states in their domestic affairs, especially on sensitive
issues such as human rights, security, and justice.
Critics
of the ICC intervention in the Philippines argue that the ICC is violating the
sovereignty of the Philippines by trying to investigate and prosecute crimes
that fall under the jurisdiction of the Philippine legal system. They claim
that the Philippines has the capacity and the will to address the human rights
violations committed in the context of the war on drugs, and that the ICC is
overstepping its mandate and undermining the legitimacy and authority of the
Philippine government. They also accuse the ICC of being biased and influenced
by Western powers that have their own political and economic interests in the
region.
On
the other hand, supporters of the ICC intervention in the Philippines contend
that the ICC is not infringing on the sovereignty of the Philippines, but
rather fulfilling its role as a court of last resort for the most serious
crimes of international concern. They argue that the ICC only intervenes when
the national authorities are unwilling or unable to genuinely carry out
investigations and prosecutions, and that the ICC respects the principle of
complementarity, which gives priority to the national courts. They also assert
that the ICC is an independent and impartial institution that acts in
accordance with the Rome Statute, the treaty that established the ICC and that
the Philippines voluntarily ratified in 2011.
Complementary Nature of the ICC:
The
complementary nature of the ICC means that the ICC is not a substitute for
national courts, but rather a backup option that can step in when national
courts fail to deliver justice for crimes of international concern, such as war
crimes, crimes against humanity, and genocide. The ICC respects the sovereignty
and primary responsibility of states to investigate and prosecute these crimes,
and only intervenes when states are unable or unwilling to do so genuinely.
This is known as the principle of complementarity, which is implemented by the
ICC through Articles 17 and 53 of the Rome Statute1, the treaty that
established the ICC.
In
the case of the Philippines, the ICC has opened an investigation into the
alleged crimes against humanity committed by former President Rodrigo Duterte
and his administration in the context of the “war on drugs” campaign, which
resulted in thousands of extrajudicial killings of suspected drug users and
dealers. The ICC claims that it has jurisdiction over crimes committed on the
territory of the Philippines between November 2011 and March 2019, the period
covered by the ICC’s investigation. The Philippine government has withdrawn
from the Rome Statute and denied the ICC’s authority to interfere in its
domestic affairs.
However,
if the Philippines demonstrates a genuine commitment to addressing the alleged
abuses domestically, the principle of complementarity suggests that ICC
intervention may not be necessary. This means that the Philippines would have
to conduct effective and impartial investigations and prosecutions of the
perpetrators, without shielding them from their responsibility or granting them
immunity. The Philippines would also have to cooperate with the ICC and provide
relevant information and evidence to show that it is taking genuine steps to
ensure accountability and justice. The ICC would then have to assess whether
the national proceedings are sufficient and consistent with the Rome Statute,
and whether the ICC should defer to the national authorities or proceed with
its own investigation and prosecution.
Potential for Political
Instrumentalization:
The
potential for political instrumentalization of the ICC means that the ICC may
be used or manipulated by some states for their own political purposes, rather
than for the pursuit of justice and accountability for the most serious crimes
of international concern. Some argue that powerful states, especially those
that are not parties to the Rome Statute, the treaty that established the ICC,
may influence the decisions and actions of the ICC, such as by referring
situations to the ICC, providing or withholding cooperation and resources, or
imposing sanctions and pressures on the ICC or its member states. This may
compromise the impartiality and independence of the ICC, and undermine its
credibility and legitimacy as a global mechanism for justice.
For
example, some critics have accused the United States of using the ICC as a tool
to advance its geopolitical interests, especially in Africa and the Middle
East. The US is not a party to the Rome Statute, but it has the power to refer
situations to the ICC through its permanent seat on the UN Security Council, as
it did in the cases of Sudan and Libya. The US has also threatened to impose
sanctions and penalties on the ICC and its personnel, if the ICC investigates
or prosecutes US nationals or its allies, such as Israel and Afghanistan. The
US has also pressured some African states to sign bilateral agreements that
grant immunity to US nationals from the ICC’s jurisdiction. These actions have
raised questions about the consistency and selectivity of the US’s approach to
the ICC, and its respect for the rule of law and human rights
Local Context and Cultural
Sensitivity:
Local
context and cultural sensitivity refer to the awareness and appreciation of the
specific historical, social, political, economic, and cultural factors that
shape the situation and the people involved in a given setting. These factors
may include the values, beliefs, norms, customs, traditions, languages,
religions, identities, and histories of the different groups and individuals
that interact in a certain context.
Critics
of the ICC’s intervention in the Philippines argue that the ICC may not have a
sufficient understanding of the local context and cultural sensitivity when
dealing with the allegations of human rights abuses committed in the context of
the “war on drugs” campaign. They claim that the ICC may not fully grasp the
complexity and diversity of the Philippine society, which is composed of
various ethnic, linguistic, religious, and regional groups, some of which have
their own indigenous cultural communities (ICCs) or indigenous peoples (IPs)
that have distinct rights and interests. They also assert that the ICC may not
recognize the historical and political factors that have shaped the Philippine
legal system and the public opinion on the issue of the drug war, such as the
colonial legacy, the martial law period, the democratic transition, the
corruption and impunity problems, the security and development challenges, and
the popular support for the former President Duterte and his anti-drug
policies.
Therefore,
critics suggest that the ICC’s intervention may not always align with the
intricacies of the Philippine socio-political landscape, leading to
misunderstandings and potential resistance from the Philippine government and
its supporters, as well as from some sectors of the Philippine society that may
have different views and expectations on the issue of justice and
accountability. They warn that the ICC’s intervention may be perceived as an
imposition of foreign standards and values, a violation of national sovereignty
and autonomy, a threat to national security and stability, or a disrespect to
the cultural diversity and dignity of the Philippine people. They recommend
that the ICC should exercise caution and respect when intervening in the
Philippines, and that it should consult and cooperate with the relevant
stakeholders, such as the victims, the witnesses, the civil society, the media,
the academe, the religious groups, the ICCs/IPs, and the national authorities
Resource Allocation:
Resource
allocation is the process of deciding how to distribute the available resources
among different activities or goals. In the case of ICC trials, the resources
include money, personnel, equipment, time, and expertise. These resources are
limited and have to be used efficiently and effectively to achieve the ICC’s
mandate of prosecuting the most serious crimes of international concern.
ICC
trials are resource-intensive affairs because they involve complex and lengthy
investigations, prosecutions, and reparations in multiple countries and
situations. They also require high standards of evidence, fair trial
guarantees, and protection of witnesses and victims. ICC trials demand
substantial time and financial commitments from the Court, the States Parties,
and other stakeholders.
Opponents
of intervention argue that these resources might be better utilized addressing
other urgent national issues, such as poverty, healthcare, or education. They
claim that the ICC’s involvement in certain situations may divert attention and
resources from more pressing humanitarian and development needs. They may also
question the legitimacy, effectiveness, and impact of the ICC’s work in those
situations.
However,
supporters of intervention counter that the ICC’s role is complementary and not
contradictory to other national priorities. They assert that the ICC’s work
contributes to the prevention of future atrocities, the restoration of peace
and security, and the promotion of human rights and the rule of law.
Potential for Social Unrest:
The
prospect of ICC intervention could trigger social unrest within the country,
particularly if citizens perceive it as unwarranted interference in domestic
affairs. Maintaining stability is crucial, and external interventions may
disrupt ongoing reconciliation efforts.
Selective Prosecution Concerns:
The
ICC has faced accusations of selective prosecution, focusing on certain cases
while overlooking similar atrocities elsewhere. Skeptics argue that this could
undermine the court's credibility and impartiality.
Role of Regional Mechanisms:
Advocates
for non-intervention often propose the use of regional mechanisms to address
human rights issues. Regional bodies might be better positioned to understand
the specific nuances of the situation and tailor interventions accordingly.
Conclusion
The
pursuit of justice is a noble endeavor that aims to uphold the dignity and
rights of all human beings. However, the question of whether the International
Criminal Court (ICC) should intervene in the Philippines to investigate and
prosecute the alleged crimes committed in the context of the so-called ‘war on
drugs’ campaign is not a simple one. It requires careful consideration of the
delicate balance between international justice and national sovereignty, two
principles that are often in tension with each other.
On
the one hand, international justice seeks to ensure accountability for the most
serious crimes of international concern, such as genocide, war crimes, and
crimes against humanity. The ICC, as an independent judicial institution, has
the mandate to investigate and prosecute such crimes when national authorities
are unwilling or unable to do so. The ICC’s intervention in the Philippines
could potentially deter future atrocities, provide redress for victims, and
contribute to the restoration of peace and security in the country.
On
the other hand, national sovereignty entails the right and responsibility of
each state to govern its own affairs without external interference. The
Philippines, as a sovereign state, has the primary duty to protect and promote
the welfare of its people. The Philippines’ withdrawal from the ICC in 2019,
which took effect in 2020, was a manifestation of its rejection of the ICC’s
jurisdiction and authority over its territory. The Philippines’ government has
argued that the ICC’s investigation would violate its sovereignty, undermine
its democratic processes, and interfere with its domestic efforts to address
the drug problem.
Striking
a balance between these two principles is essential to avoid unintended
consequences and to ensure that any intervention is both just and respectful of
the unique circumstances within the Philippines. For instance, an intervention
that is perceived as illegitimate, biased, or intrusive by the Philippine
authorities and public could provoke resistance, hostility, or retaliation,
which could jeopardize the safety and cooperation of the ICC staff, witnesses,
and victims. Moreover, an intervention that is insensitive to the cultural,
social, and political realities of the Philippines could fail to address the
root causes and the broader implications of the drug problem, such as poverty,
inequality, corruption, and human rights violations.
The
debate over the ICC’s intervention in the Philippines underscores the complex
nature of global governance and the ongoing quest for a harmonious coexistence
of international justice and respect for national autonomy. It also highlights
the need for dialogue, collaboration, and compromise among the various actors
and stakeholders involved, such as the ICC, the Philippines, the United
Nations, the international community, and the civil society. Ultimately, the
goal of any intervention should be to serve the best interests of the Filipino
people and to advance the cause of justice, peace, and human dignity.
