Respecting Sovereignty: Why the ICC Should Exercise Caution in Intervening in the Philippines

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.