The International Criminal Court (ICC) Prosecutor Fatou Bensouda on February 8 announced the start of a preliminary investigation into a complaint by a Filipino lawyer and two lawmakers which accuse President Rodrigo Duterte and his government of crimes against humanity.
Since then, several developments have emerged which can potentially have long-term repercussions on the future role of the international legal system vis-à-vis human rights violations, including crimes against humanity.
There have been several analyses and commentaries either in support of the ICC's initiative or in defence of Duterte's defiance. But in reality, there is no real winner but losers. One other major victim is democracy as an institution.
Why is ICC losing?
When Prosecutor Bensouda announced that the ICC decided to conduct a preliminary investigation into President Duterte's “war on drugs”, she said it was a review of whether crimes against humanity had been committed and whether the Hague-based court might have jurisdiction to eventually bring suspects to trial.
Bensouda also said, “While some of such killings have reportedly occurred in the context of clashes between or within gangs, it is alleged that many of the reported incidents involved extra-judicial killings in the course of police anti-drug operations.”
If Bensouda wishes to open a formal investigation, she would first seek approval from international judges.
Since the announcement of the preliminary investigation, there has not been any significant development or progress, although the process could take years. The day after the ICC announced to conduct the investigation, Duterte said he was ready to face the investigation but would prefer to face a firing squad than being jailed.
But a month later on March 15, the Duterte government notified the UN secretary general that the Philippines was withdrawing from the ICC, which it ratified in 2011. Following the withdrawal, Duterte threatened to arrest the prosecutor if she conducts an investigation in his country arguing that the Philippines is no longer an ICC member, and therefore, the court has no right to conduct activities.
With such strong stance from the Duterte administration and given his security forces' brutality on its own civilian population, it is unlikely, at least it will be very difficult, to conduct any kind of comprehensive investigation into alleged crimes against humanity.
Moreover, Duterte has promised to continue his crackdown on drugs and told his security forces not to cooperate with any foreign investigators and even said he would convince other ICC members to withdraw.
Why is Duterte losing?
Since Duterte came to power in 2016, an estimated 12,000 Filipinos have been killed, either shot dead in police operations or assassinated by men in motorbikes.
Though the Duterte administration has notified the UN secretary general of its withdrawal, it takes a year for it to come into effect, which means the ICC has jurisdiction to investigate alleged crimes committed in the period from when the Philippines joined in 2011 to when its withdrawal takes effect in March 2019.
In this regard, Duterte and his legal team have argued that technically the Philippines has never joined the ICC because it was not announced in the country's official gazette. However, this argument has little significance since the Duterte government submitted a letter to the UN secretary general for the country's withdrawal, which confirmed its ICC membership.
According to the ICC rules, the court can step in and exercise jurisdiction if states are unable or unwilling to investigate crimes. The ICC rules show that Duterte is not totally free from investigation and potential prosecution or even prison sentence.
Though it may not happen while Duterte is still in power, the court proceeding can possibly continue if and when someone else comes to power, which can perhaps be his political opponents as well. Such change in leadership or policy may take years, if not decades. There is also a possibility that his successor(s) may choose to re-ratify the Rome Statute to regain the Philippines' ICC membership.
Why is democracy a victim?
When the Duterte administration decided to withdraw its membership, the president of the ICC's member assembly, O-Gon Kwon of South Korea, said the Philippines' decision was regrettable. And he further added that the ICC needs strong international support for the court's effectiveness and urged the Philippines to remain a party to the Rome Statute.
ICC prosecutors may very well continue their investigation against Duterte and his government after the country's withdrawal. But in case the court feels threatened or for any reason does not continue to pursue the case, it may likely become a precedent for other nations, mostly those of authoritarian regimes. It would encourage other existing members to withdraw from the ICC to escape any future prosecution or indictment for similar crimes, or even worse.
Duterte, who remains popular in his country, and his government may have a very good reason to continue the “war on drugs” but there is no doubt that there are many Filipinos who are absolutely opposed to the government's brutality and the alleged abuse of power.
One recent example was the removal of the country's first woman chief justice, Maria Lourdes Sereno, on May 11 from her position by supporters of President Duterte who called her an “enemy” for voting against controversial government proposals. Sereno was seen by the opposition party as a shield against abuse of power by the Duterte government.
Undoubtedly, democracy is one major victim of the tussle between ICC and President Duterte. Whether the ICC continues with its investigation or not, the Philippines' withdrawal has already affected the international institution, with one less member at the least.
And for Duterte, his withdrawal from the ICC may be a pause rather than a solution to the simmering tension and deep political division within the Philippines. The entire development is obviously an indication of the decline or erosion of democratic values and principles.
Dr Nehginpao Kipgen is Associate Professor and Executive Director at the Center for Southeast Asian Studies (CSEAS), Jindal School of International Affairs, OP Jindal Global University. Sahima Gupta is an undergraduate student of Liberal Arts and Humanities at the university and an intern at CSEAS.