Why Duterte can't be prosecuted by the ICC...yet

Kimberly Jane Tan, ABS-CBN News

Posted at Nov 17 2016 05:03 PM

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He curses like it's his mother tongue. He threatens criminals like it's the most natural thing in the world. He lashes out against powerful international leaders without batting an eye. And he makes no apology for initiating a drug war that may have sparked an alarming wave of extra-judicial killings in the Philippines. Now, he is saying martial law may be the solution to the country's crime problem.

But are these enough to warrant an international investigation against Philippine President Rodrigo Duterte?

Since he was elected into office on May 10, 2016, there have been at least 2,236 drug-related deaths in the country. Of this number, 1,287 were killed in police operations while 788 were pulled off by unidentified assailants, based on monitoring by the ABS-CBN Investigative and Research Group. 

These figures and the daily reportage of drug pushers and addicts being killed in raids have fueled suspicions of human rights violations under the administration of Duterte.

Though there has been no definitive proof yet, critics have attacked the President for it--from lawmakers, Church officials to even members of the international community.


The noise has been so loud that it has reached the ears of the International Criminal Court (ICC), the global body that tries genocide, war crimes, crimes against humanity and most recently, crimes of aggression. 

"The failure of the government to address this situation currently prevailing of unexplained extra-judicial killings and providing remedies in terms of prosecution of perpetrators could result in the possibility of the ICC exercising jurisdiction over those matters if we fail to do so," Commission on Human Rights chair Chito Gascon said during a Senate inquiry in August.

Created in 1998 through the United Nations treaty called the Rome Statute, the ICC has jurisdiction over 124 of its members, including the Philippines, which became a signatory 16 years ago.


And ICC's chief prosecutor seems to think there is basis to look into what's happening in the country.

Despite not mentioning Duterte, Fatou Bensouda said she was "deeply concerned" about the the fact that Philippine officials seem to condone the alleged extra-judicial killings, even encouraging the use of lethal force against the targets.

"Let me be clear: any person in the Philippines who incites or engages in acts of mass violence including by ordering, requesting, encouraging or contributing, in any other manner, to the commission of crimes within the jurisdiction of the ICC is potentially liable to prosecution before the Court," she said in a statement last October.

Since the Philippines is a state party to the ICC, it has had jurisdiction over genocide, crimes against humanity, and war crimes committed by Filipino nationals since 2011, when the country became a signatory, she added.

"My office, in accordance with its mandate under the Rome Statute, will be closely following developments in the Philippines in the weeks to come and record any instance of incitement or resort to violence with a view to assessing whether a preliminary examination into the situation of the Philippines needs to be opened," she said.


But Kabayan Party-list Rep. Harry Roque, the only ICC-accredited lawyer in the Philippines, said this is not up to Bensouda because she still has to get authorization from the court.

"That's one of the peculiarities of the ICC," Roque told ABS-CBN News. 

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Kabayan Party-list Rep. Harry Roque. ABS-CBN file photo

The prosecutor also has to prove that the Philippines is "unable or unwilling to investigate" because the state party still has primary jurisdiction over the alleged crimes, he explained.

And even if she does get authorization to launch a full-blown investigation, Bensouda still has to prove that the crimes were committed as "part of a widespread or systematic attack against a civilian population."

Amado Valdez, former dean of the University of East's College of Law, said this seems unlikely because police are just following protocol during their raids.

"Wala naman akong nakikitang systematic na pagpatay kundi ang system na ginagawa nila is to make an investigation. May mga record naman yung iba so this is not systematic," he said.

(I don't see any systematic killings but a system of investigating. There are records of these so this is not systematic.)


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President Duterte with military and security officials. Malacanang file photo

It's also not clear what elements Bensouda wants to investigate, whether she wants to try Duterte for direct involvement or for command responsibility, said Roque.

More importantly, he said the President has only been in office for more than three months so it's too early to prove anything. "Talagang premature pa to say the President that he will be tried," he said.

Plus, the ICC has its own share of controversies, the most potent of which is its alleged bias against African countries. Just recently, Gambia and South Africa announced their withdrawal from the international tribunal.


Roque predicts a similar outcome for the country in case Duterte does go on trial, especially since the Philippines is the only Southeast Asian country to ratify the Rome Statute.

"There's a problem sa cooperation when it comes to sitting presidents," he said, although noting it was only obvious for the ICC to focus on African countries because of the atrocities happening in the region.

The ICC Office of the Prosecutor is currently conducting preliminary examinations regarding situations in Afghanistan, Burundi, the registered vessels of Comoros, Greece and Cambodia, Colombia, Gabon, Guinea, Iraq/UK, Palestine, Nigeria and Ukraine.