Experts on geopolitics have questioned the credibility of the International Criminal Court (ICC), with some even wondering why it even exists, considering its Western leaning.
The biggest nations of the world, the United States, China, India and Russia, are not members, while Israel is an adversary due to the tribunal’s meddling in its handling of the nation’s conflict with Palestine.
Recently, as her final coup, former prosecutor Fatou Bensouda, who has a particular interest on President Rodrigo Duterte, was able to swing the start of an investigation process into the administration’s war on drugs.
The complaints filed came from submissions of known political opponents of the President and emotional narratives from relatives of drug suspects killed during the campaign.
The base number provided by rabble rouser Antonio Trillanes IV was initially 20,000 killed in the anti-narcotics drive that started when Mr. Duterte took office in 2016.
It was revised to 6,000 in the ICC’s decision to initiate a probe to make the figure more believable.
Dr. Champa Patel, head of the Asia-Pacific Program at Chatham House or The Royal Institute of International Affairs, said the ICC faces three challenges in its investigation on the Philippines: The credibility of the ICC, procedural challenges, and expectations.
President Duterte had called the ICC’s credibility into question, saying the organization was “hypocritical” and “useless” after deciding to withdraw the Philippines from the Rome Statute that created the ICC.
The President’s main complaint was on the inordinate focus of the tribunal on developing countries instead of rich nations that have been the subject of complaints of atrocities, such as the United Kingdom, the United States and places in the Middle East. Mr. Duterte also flayed the ICC for ignoring the Rohingya crisis in Myanmar.
Procedural challenges, according to Patel, include the ICC process being notoriously slow, “so quick proceedings after the examination are essential to ensure justice for any victim of international criminal law violations.”
A greater tension would be on the issue of complementarity. In practice, the ICC will only hear cases where the state is unable or unwilling to do so. Presidential spokesperson Harry Roque has argued that domestic law provides a framework for investigations in the form of the 2009 Philippine Act on Crimes Against International Humanitarian Law, Genocide and Other Crimes Against Humanity.
Ramesh Thakur, a former United Nations assistant secretary-general, has a more indicting perspective of the ICC.
He said a criminal justice system cannot function without Legislative and Executive branches of government as essential props.
“The absence of an elected and accountable world legislature and executive undermines the court’s legitimacy, making it the instrument of a technocratic elite,” he explained.
Thakur said the United Nations Security Council can refer cases to the ICC and defer cases before the court, meaning geopolitics of the Security Council contaminate the court’s judicial processes.
“In a violation of natural justice, countries that are not ICC members, including three permanent members, can nevertheless vote on decisions relating to the court,” he added.
The ICC’s institutional integrity was also called into question by the way it handled allegations of sexual misconduct against the first prosecutor in 2005, as documented by Africa experts Julie Flint and Alex de Waal.
The strongest criticism came from Africans who faulted the ICC for targeting only Africans, jeopardizing delicate peace negotiations in Kenya, Uganda, Sudan and Libya, and disrespecting African views.
By remaining, state-parties will sanctify the weaponization of international justice mechanisms to be used by the powerful against the weak but never against any of their own, Thakur noted.
China, Russia and the US will be able to use the ICC to impose accountability on others under the enabling function of international criminal law, but escape its restrictive leash limitations for their own international conduct, he added. No self-respecting and law-abiding state should be complicit in such a monstrous perversion of the ICC statute, the veteran of geopolitics viewed.
Similar to the discredited foes of the President, the ICC badly needed a credibility boost which, through the miserable partnership of both, it is trying to generate by turning on the extremely popular Philippine leader.
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