Government News Analysis

Time to write that Dear John letter

The International Criminal Court (ICC) has NO plans to investigate either Philippine President, Rodrigo Duterte, or any part of his administration over alleged extrajudicial killings emanating from the president’s war on drugs.

This was the gist of the ICC’s official statement delivered to the international media from The Hague, Netherlands on Friday. Clarifying the situation, Fadi El Abdallah, spokesman and head of the ICC public affairs, said: “…with regard to the Philippines, there is no preliminary examination that has been opened and there is no investigation on going”.

Undoubtedly it was not what the media wanted to hear any more than it was welcome news to Duterte’s critics. But the ICC knew it needed to clarify the position to lower the temperature and try to head-off any decision by the president to take his country out of the Court. In a phrase then, this was ICC damage control.

And, thanks to its Chief Prosecutor, Fatou Bensouda, there’s plenty of damage to control. Her less-than-prudent remarks last month had anti-Duterte media rubbing their hands in glee. Arch-Duterte critic, embattled senator, Leila De Lima – whose prints were all over the chief prosecutor’s earlier warning to the government in Manila – was little short of jubilant; that the Court was lending its weight to her campaign to have the president investigated and then, hopefully for her, to have him tried for “crimes against humanity”.

Bensouda had said: “I am deeply concerned about these alleged killings and the fact that public statements of high officials of the republic [sic] of the Philippines seem to condone such killings,” said Bensouda in a statement. She believes a case could be brought if they have been “committed as part of a widespread or systematic attack against a civilian population”.

That statement far exceeded Bensouda’s authority and it’s very likely that she’s been reprimanded for making it. The ICC has a poor public image as it is and is struggling to keep members – particularly among the African nations. In its African stamping ground, Burundi, South Africa and Gambia have already tendered their resignations.

Even more troubling is that the Philippines, with the exception of Cambodia,  is the only member of the Association of Southeast Asian Nations (Asean) to also be a signatory of the Rome Treaty which brought the court into being. Any hope of getting other Asean leaders to sign up will have been virtually dashed by Bensouda’s rash remarks.

The ICC’s rules are clear, as the Court’s spokesman explained: “If the ICC prosecutor wants to investigate on her own initiative, she must obtain the authorisation of the judges, so there is a control of a chamber of three judges over this matter. It’s not only the prosecutor deciding, the judges have to look into this decision, and the state concerned may be able to present objections to that before the judges”.

And the reason for that is to prevent it from turning into the sort of kangaroo court that Bensouda’s – and De Lima’s – autocratic urging could precipitate.

With all that cleared up, the bigger question is this. What can the Philippines achieve by remaining a member of the ICC? If you ask The Volatilian™, we would say – ‘nothing’. In fact, we’ll go further. To remain a member of such a flawed and bitterly divided organisation does not enhance the country’s image in any respect; it becomes tarnished by association. For that reason alone, Duterte should proceed with revoking Philippine membership.

But there’s another reason. As mentioned, ex-Cambodia, no other member country of Asean – the Philippines’ number one political grouping – has ratified the Treaty of Rome. Furthermore, China, with which the country is now closely allied – along with a number of states, including the US – voted against the Rome Statute and, thus, never signed up. And one week ago, the Russian Federation, with which Duterte is also establishing closer ties, is also pulling out. Russian President Vladimir Putin has already signed an executive order to take his country off the ICC members list.

So among the Philippines closest allies, there is an overwhelming lack of confidence in the ICC. In fact, as far as we can see, the only reason the Philippines joined – former president, Benigno “Noynoy” Aquino took out a Philippine membership in February 2011 – was to add some trappings of human rights to the Liberal-led government’s CV.

It’s possible that Aquino’s ear was bent by De Lima, who one year earlier under the administration of Gloria Macapagal-Arroyo had been head of the Philippine Commission of Human Rights. In that capacity, incidentally, it’s quite possible that she would have had contact with Bensouda who was then the ICC’s Deputy Prosecutor – a time when De Lima was investigating Duterte for extrajudicial killings in Davao City where he was the mayor. That’s our theory anyway which leads us to suspect that she played some part in encouraging Bensouda to talk tough on the Philippines.

Duterte has described the ICC as “useless” and, along with many national governments, we would agree. There is no argument for remaining a member of this ineffective and heavily criticised club. The Philippines has far more serious business to attend to than to be fending off criticism from a court that has already overstepped the mark where it’s concerned, and so the sooner Duterte takes out his pen and writes a Dear John letter to The Hague, the better.

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