The ICC attacking our sovereignty

BY ANTONIO CONTRERAS       MARCH 21, 2019

MEMBERSHIP in the United Nations (UN), or in similar transnational bodies such as the Association of Southeast Asian Nations (Asean), is an expression of solidarity by sovereign states with other states. Adherence to international treaties and agreements is symbolic of the commitment of a sovereign state to a regime of processes, protocols, principles and standards that seek to maintain the global order. This is necessary in the context of possible conflicts between and among states on various issues. However, aside from fostering peace by preventing the escalation of misunderstanding into full-blown wars, global agreements have also been forged to affirm the commitment of states to uphold universal principles and standards that are necessary not only to maintain good relationships between and among states, but also in celebrating the rights and welfare of all humanity and ensuring that these are respected by state signatories. It is in the latter context that the Rome Statute evolved and entered into force in 2002 which established the International Criminal Court (ICC) that would have jurisdiction over four core international crimes: genocide, crimes against humanity, war crimes and the crime of aggression.

However, even as these international institutions and processes appear to establish norms, rules and procedures that may bind member countries, adherence to such are always done in the context of respecting the sovereignty of states. Specifically, the ICC firmly upholds the principle of complementarity, in that it can only investigate and prosecute any of the four core international crimes if the state is unable or unwilling to prosecute. It is well-entrenched as a basic principle in establishing jurisdiction over international crimes to ensure that the sovereignty of states is not disturbed or assaulted. The principle of complementarity upon which the ICC is based strongly asserts that it is preferred that those crimes are investigated and prosecuted by the sovereign states using their own laws and processes.

It is in this context that one needs to assess the rationality in the move of President Duterte to cause the withdrawal of the Philippines from the ICC which became final on March 17, 2019. While his critics are up in arms against the move, and paint it as if the heavens are going to fall upon us, and that our country will become a pariah in the world community of states, we have to also make them accountable for their acts that amounted to a challenge to our sovereignty.

Those who filed a case against the President on his war on drugs, with the allegations that it amounted to a crime against humanity, went to the ICC not for anything else but for political mileage, as part of a global shaming project to embarrass the President. And the ICC, instead of acting like a rational international body that should have been conscious of its jurisdictional boundaries and careful not to assault the sovereign rights of members, have turned the entire case into an opportunity to flex its muscle and behave as if it is a court which anyone can just run to and seek remedy.

If there is a sensitive issue that should have been carefully addressed, more so in the face of the withering of national boundaries, either symbolically or otherwise in the age of unbridled globalization, it should have been the issue of sovereignty. The act of filing a case with the ICC is a tacit admission by any Filipino citizen that there is no longer a functioning judicial system in the country that can investigate and prosecute the crimes that are listed in the Rome Statute. And when the ICC admitted the case, it was as if there was a tacit recognition that indeed the Philippines has a broken, non-existent legal system that is unable and unwilling to prosecute any of the four international crimes. What has been effectively painted is that the Philippines is now a failed state. This is aggravated by the seeming bravado exhibited by the chief prosecutor of ICC, Fatou Bensouda, who acts as if a conclusion has already been made not only on the issue of jurisdiction, but also even on the merits of the case itself.

The Philippines is a sovereign state. We have the noisiest, freest civil society community in this part of the world, and despite the protestations of Maria Ressa and Rappler, we also have one of the freest, noisiest media. Our courts are functioning very well. In fact, the issue of the withdrawal from the ICC was taken up by the Supreme Court, and oral arguments were held to hear the side of the petitioners questioning the legality of the withdrawal.

There is also no basis to argue that the country is unable or unwilling to investigate and prosecute offenses committed by state actors in relation to the President’s war on drugs. The Supreme Court has taken jurisdiction over and has conducted hearings on petitions against the presidential action in question. The conviction of the policemen who brutally killed Kian Loyd de los Santos loudly affirms that we do investigate, prosecute and convict.

Granted that the President is immune from suit, and that impeachment is not a realistic remedy considering that Congress is controlled by his allies, there is always the option of prosecuting him when he leaves office in 2022.

Some people are blaming the President and accuse him of committing an irresponsible, knee-jerk act. But if there are people that should be blamed, it should be those who ran to the ICC driven less by the desire to seek justice than to shame the President, even if it meant attacking our very own sovereignty and letting Bensouda pass judgment on the robustness of our legal system. And the ICC, particularly through the actions of Bensouda, deserves equal share of the blame for not acting prudently, and for failing to protect the image of neutrality and integrity of the ICC.

https://www.manilatimes.net/the-icc-attacking-our-sovereignty/528804/