• Too early to panic on the ICC process



    I THOUGHT it was pretty clear. But how did President Rodrigo Duterte manage to get confused?

    Fatou Bensouda, the Prosecutor of the International Criminal Court at the Hague, has decided to open an “examination” into allegations of crimes related to the “war on drugs” in the Philippines from July 1, 2016. It is to be an “examination,” not an “investigation,” and Bensouda explained it as “a process of examining the information available in order to reach a fully informed determination on whether there is reasonable basis to proceed with an investigation pursuant to the criteria established in the Rome Statute.”

    The document under examination is called a “communication” rather than a “complaint’; the prosecutor has not submitted anything to the court, and the court has not assumed jurisdiction over anything. No one has been indicted, no defendant has been named. There have been instances when after an examination, the prosecutor found no basis to proceed, and archived the “communication” instead.

    Stiff upper lip needed
    As of now, Bensouda is not yet in the country, and the intended “examination” has not yet commenced. The question of the ICC assuming jurisdiction over anything or that of PDU30 being innocent or guilty of anything has not yet arisen. Since the court or the prosecutor has not yet spoken, it is too early for him to throw tantrums or to panic. He should breathe normally and attend to the urgent business at hand.

    Yet his first reaction to the news has been to inflict new injuries upon himself. First, he said, if found guilty, he would like to be shot by a firing squad like Dr. Jose Rizal, our national hero who was executed at the Luneta by a Spanish firing squad on December 30, 1896. Then, a few days later, he said he was beyond the ICC’s jurisdiction because there’s no “f****g” law that penalizes extrajudicial killing.

    Given his long experience as a prosecutor, he ought to know that although the Nuremberg trials sentenced 12 hardened Nazi criminals to death, the ICC does not impose the same sentence, which has been long abolished by law. So, finishing him off by musketry is entirely out of the question, even if the ICC should ultimately proceed against him, find him guilty, and a couple of Spanish executioners rise from the grave to volunteer for the job. This is nothing but cheap, worthless propaganda.

    Pathetic statement
    His next statement about extrajudicial killing not being in the law is no less pathetic. It is not a defense, but a self-indictment. Instead of rejecting any alleged involvement in extrajudicial killing, the only point he makes is that since EJK is not in the law, no one can ever accuse him of it. Indeed, extrajudicial killing is not in the Revised Penal Code nor in the Rome Statute, but it is another word for murder, and murder is in both legal texts.

    It is not true that DU30 is beyond the reach of the court. Because the Philippines is a state party to the Rome Statute, DU30 would fall within its reach, should the ICC decide there is a case against him. Of course, he could probably do what Russia and the East African Republic of Burundi have done.

    On November 16, 2016 Russia withdrew its signature from the Rome Statute saying the ICC was costing its members more than the service it was giving them. No Russian official was under investigation at the time, nor was the court’s prosecutor “examining” anything that could lead to an investigation of any Russian official for possible violation of the ICC charter.

    The case of Burundi
    In late October 2017, Burundi, a landlocked African country bordered by Rwanda to the north, Tanzania to the east and south, and the Democratic Republic of the Congo to the west, quit the ICC after a United Nations Commission of Inquiry found evidence of extrajudicial killings, disappearances, arbitrary arrests and detentions, torture and sexual violence in the two-and-a-half years since President Pierre Nkurunziza “muscled his way to a third term,” in the words of The New York Times.

    Burundi became the first country to withdraw from the ICC to avoid criminal action from the court.

    It is not clear what happened to the ICC’s impending investigation of the President. An ICC spokesman was quoted as saying the court would retain its jurisdiction, but since the state party had quit, it could no longer be expected to recognize any ICC investigation. The UN Security Council will have to intervene.

    Other African countries—Gambia and South Africa—were threatening to withdraw from the ICC at the time. But they eventually decided not to because of favorable internal political developments. According to reports, nine out of 10 formal investigations being carried out by the ICC prosecutor’s office concern Africa and have African defendants.

    Some failed cases
    In the last two years, the ICC has dropped charges against Kenya President Uhuru Kenyatta and Vice President William Ruti for lack of evidence. Both were accused of crimes against humanity after the 2007 elections, in which more than 1,100 people were killed and hundreds of thousands were displaced. DU30 should be praying that something like this should happen in the Philippines after the “examination,” or even if an “examination” should lead into an “investigation.”

    In the meantime, his paramount and urgent duty is to keep his famous mouth zipped, and his people’s equal duty is to keep him away from the microphone or turn it off everytime he gets near it. The ICC prosecutor’s initiative should not prevent DU30 from waging an honest-to-goodness anti-drug campaign, but no extrajudicial killing should attend such campaign.

    The popular outcry has never been against DU30’s avowed campaign against drugs, where it is perceived to be real, but only against the killings that have been piggybacked on this alleged war on drugs. Thousands of “suspects” have died, without any effect on the volume of illegal drugs coming from China, the Golden Triangle, Sinaloa and other sources, and trafficked by drug lords close to the seat of power.

    DU30 will now try to impress the ICC by waging a “death-free” anti-drug campaign, while Bensouda’s “examination” is going on. This should have been Bato de la Rosa’s template from the very beginning. The danger though in waging such a “deathless” anti-drug campaign now, while Bensouda is in town, is that it would show the previous deaths had nothing to do with drugs at all, but were part of a campaign to intimidate the population into submitting to iron rule, and to silence all political opposition. This in itself would constitute a crime under the Rome Statute.

    Two other issues
    In all this, DU30 has shown the greatest threat to his presidency is not coming from anywhere but from himself, notably from his ability to shoot himself in the mouth on the most delicate issues. Aside from the ICC issue, two recent incidents demonstrate this. One involves his order cancelling a signed contract to acquire16 Canadian Bell helicopters worth $233 million, and another involves his order banning all overseas Filipino workers from seeking employment in Kuwait.

    The day after the helicopter contract was signed—which happened only after a long and diligent search for an appropriate supplier—the Canadian Prime Minister Justin Trudeau proposed an inquiry to make sure the helicopters would not be used to “attack” insurgents. Instead of ordering the Secretary of National Defense to defend the Philippines’ sovereign right to decide where the helicopters would be used to protect the country’s security and humanitarian interests, DU30 simply ordered the contract cancelled. This looked like a tantrum, pure and simple.

    Missed opportunity
    This should have been an opportunity for DU30 to pronounce the government’s doctrine in the use of military equipment. If the helicopters were being acquired by the Philippine National Red Cross, the National Disaster Coordinating Council, or the Philippine Coast Guard, it would have been completely legitimate for the supplier to attach a condition that the helicopters would not be used for military purposes. But since they were being acquired by the Department of National Defense or the Armed Forces of the Philippines, the only legitimate and acceptable condition would be one which says, they would not be used to commit aggression, control political dissent, or attack innocent civilian populations anywhere.

    It is a contradiction in terms for the Canadian government to tell the DND or the AFP that the helicopters should not be used in any engagement against rebels or insurgents. When the IS-aligned Maute extremists attacked Marawi on May 23 last year, prompting DU30 to put Mindanao under martial law, the military had to use helicopters not only for search and rescue operations but also to attack concentrations of rebel forces in certain areas. DU30 should have pointed this out to the Canadians. He decided to sulk instead.

    The mess in Kuwait
    Regarding the OFWs in Kuwait, DU30 tried to use the murder of domestic worker Joanna Daniella Demafelis, whose body was found inside a freezer in her employer’s house, as a reason to recall all OFWs from Kuwait, and to ban further deployment of OFWs to that post. This allows the populist President to show everyone his bleeding heart.

    Those who have been coming everyday to the labor attache’s office, waiting for non-existent jobs to open up, or those who have run into trouble with their employers but could not come home for lack of an air ticket, welcome the arrival of a commercial plane to ferry them back home at last. But this does not do justice to the murder victim Demafelis, nor to the other uncomplaining OFWs in Kuwait, nor to the other employers who have nothing to do with the murder of Demafelis, nor to the government of Kuwait.

    DU30 should have made it more than abundantly clear to the Kuwaiti government that until the guilty parties in the Demafelis case are punished to the full extent of the law, the Philippines would continue to review the status of OFWs in Kuwait. DU30 needs all the help he can get to look after our OFWs. For this purpose, he recently appointed former Negros congressman Jacinto “Jing” Paras as labor undersecretary in charge of OFWs. But the first word Paras reportedly heard from Secretary Bello was: “Don’t touch anything there. Leave the OFWs to me.”

    I do not know exactly what that means. But I’m hoping my sources completely misheard.



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