Duterte vs. The ICC

President Rodrigo R. Duterte delivers a speech during the turnover rites of the Armed Forces of the Philippines at Camp Aguinaldo on Friday where he discussed historical facts which led to the Mindanao problem and other issues relating to peace and order and the campaign for change towards ending hostilities with the CPP-NPA, MILF and MNLF. (Photo by Marcelino Pascua/PCOO/photo)

An estimated twelve thousand dead; bounties offered for each rebel head; and calls for increased violence, including encouragement to shoot female fighters in the genitals: This is the current state of the Philippines. Since 2016, the nation’s democracy has appeared to be spiraling out of control, as thousands have been slaughtered in President Rodrigo Duterte’s war on drugs. International actors look on with horror as families are torn apart by the state-led brutality. The International Criminal Court, otherwise known as the ICC, has recently announced its intent to begin a preliminary investigation into alleged crimes against humanity.

Despite widespread criticism and the despair, Duterte appears unfazed. He has been brazen in the face of international scrutiny, and even laughed off the announcement of the ICC investigation.“Go ahead and proceed,” Duterte taunted. “Find me guilty, of course. You can do that.” Although his brashness might seem foolhardy or even dangerous when considering the potential seriousness that an ICC investigation and possible prosecution could bear, a deeper look into how the ICC operates in practice reveals that Duterte might not be unwarranted in treating this process as nothing more than a joke.

Before analyzing how the ICC may affect the politics of the Philippines, it is imperative to first understand the president’s unique position and status in the country. Duterte, if anything, is an opportunist, says Darren Zook, professor of Political Science and International and Area Studies at UC Berkeley. His road to the presidency was filled with campaign promises to rid the streets of dangerous drug cartels and reimpose order in crime-ridden neighborhoods. Although the methods used to fulfill these promises were exceptionally violent (enough so to grab the attention of the ICC), Zook attributes Duterte’s popularity to the effectiveness of his methods, even if they are only short-term solutions. “You can’t argue with results,” Zook states. And it’s true: Recent surveys show that Filipinos are “more satisfied with [the] Duterte government than any other [previous Filipino government].” Duterte’s severe but effective response to the drug issue, whatever the cost, has earned him respect and popularity among a large number of constituents.

Duterte popularity is seemingly paradoxical;  for all his arrogance, brutality, and hauteur, he is still generally liked and supported by the people he governs. So we should look at the ICC investigation in a new light: what will it mean if the ICC, an international organization, inserts itself into Filipino affairs and removes a popularly elected president, and one who has held onto his popularity thus far? Even disregarding this issue of Filipino sovereignty and democracy, it should be asked how effective an ICC investigation will be in ending the slaughter of Filipino citizens, given that typical ICC investigations are costly, lengthy, and often ineffective.

In order for the ICC to have jurisdiction, the alleged crime must have been committed in a territory that has signed and ratified the Rome Statute, which the Philippines did in 2011. The other condition for jurisdiction is that the court is one “of last resort, intervening only when national authorities cannot or will not prosecute.” The chances of Duterte being impeached or prosecuted domestically are incredibly low, even nonexistent, as a large majority of the members of Congress belong to PDP-Laban, Duterte’s party. Given these conditions, the ICC can claim legal jurisdiction over the case

However, there is an argument that an ICC investigation and the possibility of a potential future prosecution could be disruptive and even degrading to the quality of democracy in the Philippines. Duterte himself has already brought turmoil to the democratic tradition of the Philippines, with the most recent U.S. Worldwide Threat Assessment report highlighting his suggestions that he might “suspend the constitution, declare a ‘revolutionary government’, and impose nationwide martial law.” Although an ICC investigation could arguably help counter this (by an eventual prosecution of Duterte and a subsequent removal of him from power), there is some potential for a reverse effect. The ICC has previously faced accusations of being a tool for Western imperialism, imposing Western values onto less powerful countries under the guise human rights action. Given Duterte’s popularity among his constituents, any interference from the international community in Filipino internal affairs could be taken as another sign of democratic degradation, illustrating to the people that their sovereignty is meaningless in the face of the West.

Another key issue is the problem of effectiveness. While many may welcome the ICC investigation as a step towards bringing justice to the victims of the barbarous war on drugs, the ICC has been criticized for its inability to actually do anything. This criticism may be warranted: as put in Henrietta Mensa-Bonsu’s article on the ICC, after twelve years of existence, the court had a “track record of two convictions […] and a lack of cooperation on the part of states.” The ICC has often been lambasted for its inability to arrest defendants once indicted and for its delays in cases that happened years prior. A major issue in the Filipino case, common in many others, is that of state cooperation. According to BBC, the ICC “has no police force of its own to track down and arrest suspects. Instead, it must rely on national police services to make arrests and seek their transfer to The Hague.” Duterte has stacked the government with those loyal to him and browbeaten the opposition, so it is highly unlikely that the security services will aid or cooperate with the ICC in an investigation, much less a prosecution.

Despite the issues raised, an ICC investigation remains the best option for holding Duterte accountable. However, an investigation should be approached with skepticism, as it is likely to be ineffective in bringing swift justice to the families of those murdered by Duterte’s command, or in ending the violence. Even in the case that the ICC investigation is effective, it has the potential to add to the degradation of democracy already taking place under Duterte. Other options exist, such as stronger international condemnation, economic sanctions, and internal and external protest. Duterte, ever the opportunist, routinely chooses the option that is better for himself, and if enough pressure convinces him to change course to better his position, he may relent. Strategies like those above will ideally buy the ICC enough time to execute an effective and thoughtful investigation into what has happened, without having to worry about what may happen if nothing changes: more extrajudicial killings.

 

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