Recent threats by the chief prosecutor of the International Criminal Court (ICC), Fatou Bensouda – that Philippine President, Rodrigo Duterte, might be eligible to be brought before her bench on charges of crimes against humanity – look increasingly like a desperate attempt to salvage the ICC’s credibility by illustrating that it is not solely Africa-focused – Bensouda’s ill-advised adventure. And with two member-countries quitting the court last week, Bensouda is now under even greater pressure to show that the ICC is a global institution that applies its justice universally, making her Philippine play a little more likely.
Last Tuesday, the Burundi parliament voted overwhelmingly in favour of abandoning the organisation; on Friday, South Africa followed suit. Among their main concerns – along with other African states who have also intimated they might leave – is that the ICC is Afro-centric; of the 10 investigations opened by the Hague-based court since it opened for business in 2002, nine have been into African leaders and African governments.
Certainly, these departures are an embarrassment for the ICC which has struggled to get the wider world community on board. Established by statute under the 1998 Treaty of Rome, 41 United Nations member countries – among them China and India – never signed up. The United States, which did, informed the ICC four years later that it had no intention of remaining a party. Israel and Sudan similarly relinquished their membership.
The Philippines, however, is a member. It joined in 2011 when former president, Benigno “Noynoy” Aquino, put his signature to the Rome statute. Three years later, he was being threatened with having to make an appearance before the court himself. An ICC investigation was being urged into his inaction over media killings in the Philippines in general and in particular, the 2009 Maguindanao Massacre in which 34 journalists were abducted and butchered, making it the deadliest attack on journalists of all time.
Last year, Aquino was being referred to the court again; this time for his role, as Commander-in-Chief of the Armed Forces of the Philippines, in the deaths of 44 members of the Philippine National Police’s Special Action Force during an operation in Mindanao.
So un that respect, Duterte is in good company. But what makes his situation different is that in both prospective Aquino probes the urging came from within the Philippines political establishment. In Duterte’s case, on the face of it, the initiative to investigate him over extrajudicial killings has been taken by the court and specifically by Bensouda. Or has it?
This has all the hallmarks of a desire to kill two birds with one stone. Certainly, prosecuting the leader of a Southeast Asian country would take some of the heat off Bensouda and the charges that her court has little interest in prosecuting states outside the African continent; it would expand the ICC’s credentials as a global court and help to stem the criticism. So what’s the other bird and who wants it killed?
That would seem equally obvious – the removal of the 16th President of the Philippines, Rodrigo Roa Duterte would be the stone’s other direct target. And the stone thrower is likely to be his arch political foe, Senator Leila De Lima who is fighting for her political survival as evidence mounts over her involvement in the illegal drugs trade which emanated from New Bilibid Prison, the country’s largest penal institution, while she was Secretary of Justice.
The Volatilian™ has no proof that De Lima aroused Bensouda’s interest in Duterte, but we do know that she is wholly supportive of it. And as far as she is concerned it is only a matter of time before the ICC becomes fully engaged. Indeed, she’s already making the case for the court’s involvement and is attempting to cut the ground from under Duterte. “The ICC can assume jurisdiction if they can find enough basis to do so. And when that happens, the presidential immunity does not apply,” she told students at the exclusive all-girls Miriam College in Quezon City 10 days ago.
The chances of the ICC being able to bring a prosecutable case against Duterte, however, are remote; De Lima herself has been trying to do just that for the past eight years, going back to when Duterte was Mayor of Davao City. She even admits that witnesses and corroborative evidence is difficult to come by to confirm that Duterte was involved with vigilante groups there. Her fiery rhetoric aside, she has had a similar lack of success in linking the president to extrajudicial killings carried out at the fringe of his ongoing war on drugs.
De Lima, however, is not going to stop; for her this is the only game in town. And if she loses it – we certainly won’t be putting any money on the opposite outcome – she’s done as a politician, and probably as a free woman.
But an ICC action against Duterte is only one of the strings to her bow. She has also threatened to challenge the president’s immunity with a test case in the Philippine Supreme Court, and has urged the United Nations to dispatch its Special Rapporteur on summary executions, Agnes Callamard, to come to the Philippines and investigate Duterte and his administration’s alleged involvement in extrajudicial killings vis-à-vis their anti-narcotics campaign. No doubt, nothing would give Mz Callamard more pleasure. A fully paid-up member of the progressive-Left elite, she is a former Chef de Cabinet for the Secretary-General of Amnesty International – one of the lead NGOs already conspiring to have regime change in the Philippines.
For both Bensouda and De Lima, a successful court action by the ICC would be a validation of their claims – respectively, that the ICC’s authority is worldwide, and that Duterte is the capo dei capi of Philippine Murder Inc. And in the process, their own personal travails – Bensouda is alleged to have participated along with her husband in a fraud and influence-peddling scam – will simply fade away.