US National Security Adviser John Bolton recent threat against International Criminal Court Prosecutor Fatou Bensouda makes President Duterte’s threat against the same person seem quite restrained. Both of them threatened her with arrest and incarceration. But in addition, Mr. Bolton would ban Bensouda from entering the United States and have her bank accounts frozen or confiscated. Then raising his fury to a higher level, he vowed to wreck the financial system of the ICC and bring about the demise of the court, which is “already dead to the United States, anyway.” (Bolton’s fuse exploded because the ICC prosecutor has been asked to investigate crimes, including torture, allegedly committed by members of the US military and intelligence in Afghanistan.)
Undaunted, the ICC responded: “The ICC as a judicial constitution acts strictly within the legal framework of the Rome Statute and is committed to the independent and impartial exercise of its mandate…Bolton showed callous disregard for victims of atrocity crimes. The US is more concerned with coddling serial rights abusers than supporting justice.”
Actually, the United States never wanted to have anything to do with the ICC, except during the time of President Obama who agreed to cooperate with it. President Clinton later signed the Rome Statute but did not forward it to the US Senate for advice and consent because of legal doubts he had about the treaty. President Bush notified the UN Secretary General that the US did not have any intention of ever being a State Party to the treaty.
The United States may have been one of the few countries that cast a negative vote in the final secret voting on the Rome Statute at the diplomatic conference. We know which countries they were by the process of elimination, by their never having signed and ratified the treaty. They include some major powers: the US, Russia, China, India, and Israel. One may thus be dubious about these countries’ commitment to the development of the international rule of law and human rights because the ICC aims to bring to justice individuals of any nationality committing genocide, aggression, war crimes, and crimes against humanity. Some of them worry too much about their citizens being arrested by the ICC because they have national courts that can try those crimes instead of the ICC. They are oblivious of the possibility that some other people may commit those crimes against their own citizens.
But because of these important countries being outside the ICC, the ability of the ICC to serve as a deterrent against the commission of the crimes covered by its mandate may have been affected. The ICC has not been idle. Its Prosecutor has been called to investigate many cases around the world.
In the words of the late senator, Miriam Defensor Santiago, who sponsored the Senate’s concurrence, the ICC is a “benchmark in the professional development of international human rights.” The Philippines’ commitment to human rights was longstanding, making the Filipinos the first nation in Asia to wage a revolution against Western colonialism. That commitment was reburnished by the People Power Revolution of 1986. The EDSA aftermath would see the Philippines entering with enthusiasm all remaining human rights conventions (all but one, the Convention Against Enforced Disappearances. It saw the country participating actively in international human rights assemblies, including the diplomatic conference held in 1998 in Rome pursuant to UN General Assembly resolutions to establish a permanent international court, complementary to national courts, to bring individuals committing genocide, crimes against humanity, war crimes, and the crime of aggression to justice.
ICC judgeship offered
So, when the Ambassador of Italy called on me as the Assistant Secretary of European Affairs to request the Department of Foreign Affairs to take the necessary steps toward the ratification by the Philippines of the Rome Statute, we counted on the ratification process taking place in no time. I had the impression that a judgeship was offered us on a silver platter because of the active role the Philippines played as one of the like-minded states that shepherded the establishment of the ICC.
But a long time passed and the Philippines had not become a State Party to the ICC. With the ratifications reaching the required number, the Rome Statute entered into force on July 1, 2002. The Permanent Secretariat and Headquarters of the ICC was established in The Hague. The first set of 18 judges, without a Filipino among them, was installed. I went on my final assignment abroad and retired, and almost gave up on the Philippines becoming a State Party.
The last time we followed up the matter with Malacañang, we were informed that the treaty had not been ratified because of reservations from the Department of National Defense. We were made to understand that there was a threat from the United States to cut military assistance if the Philippines ratified the treaty.
Thanks to Mr. Bolton’s speech referred to at the beginning, we know the specifics of that threat. According to him, Mr. Bolton was instrumental in President Bush’s notifying the UN that the US will never be part of the ICC. He also had something to do with the passage in 2002 of the American Service Members Act which prohibits military assistance to all countries ratifying the Rome Statute. So with the Nedercott Amendment which prohibits economic assistance as well.
Human rights activists in the Philippines did not take the Office of the President’s non-action for granted. A coalition of human rights organizations tirelessly agitated for the ratification of the Rome Statute. In 2003 Sen. Aquilino Pimentel, Loretta Ann Rosales, chairman of the Coalition for the International Criminal Court, and others filed a mandamus petition to the Supreme Court to compel the President to ratify the treaty and send it the Senate for concurrence. The Supreme Court, however, ruled that it was within the authority of the President to refuse to submit a treaty to the Senate.
PH finally ratifies
At the urging of Sen. Miriam Defensor Santiago, chairman of the Senate foreign relations committee, in August 2011, President Benigno Aquino 3rd ratified the Rome Statute and sent it to the Senate for concurrence. It was approved by the Senate unanimously with only one dissenting vote (Senator Enrile who worried it might prejudice the AFP and PNP.)
There was no backlash from the United States. No cuts in military or economic assistance. This is presumably because the Philippines had been exempt from the sanctions of the American Service Members Act and the Nedercott Amendment because the country was classified as a major non-NATO ally, thanks to President Gloria Macapagal Arroyo’s joining the Coalition of the Willing and sending an engineering battalion to Iraq. Among the agencies that supported the ratification was the Department of National Defense.
What an arduous journey to ratification the treaty underwent!
But this journey does not seem to be over with the contention of the resourceful Solicitor General Jose Calida that the Rome Statute had not become law in the Philippines because it was not published in the Official Gazette. Filipino supporters of the ICC may be back to square one with President Duterte notifying the UN Secretary General about the Philippines’ withdrawal from the ICC, brought by complaints of alleged crimes against humanity in the Duterte administration’s war on drugs. They of course have not left the President’s decision unchallenged. Pending before the Supreme Court is a case filed on the issue: Can the President simply withdraw from a treaty that has become part of the law of the land without the concurrence of the Senate?
President Duterte may have cared too much about those allegations before the ICC. Don’t we have national courts where the crimes alleged can be tried? Isn’t his war on drugs aimed at the protection of the human rights of the wider population of the country? Have any of those c rimes under the jurisdiction of the ICC actually been committed in the war on drugs? Can they be proven to have been committed?
If worse comes to worst, unlike its predecessor court in Nuremberg, the ICC does not hang its convicts. Dutch jails are much more comfortable, much better appointed than local ones.