Reviewing "Détente scoffs at talk of International Criminal Court probe"

Recently, news outlets have speculated on potential ICC charges against the Philippines President Rodrigo Duterte for crimes against humanity. The recent Washington Post article “Duterte scoffs at talk of International Criminal Court probe,” by Emily Rauhala, correctly notes that bringing charges against Duterte would take time. However, it also observes that if the OTP were to begin a preliminary examination into the situation in the Philippines—the first step in the process, the examination could have a significant impact. The Washington Post article also poses some interesting questions about the impact that charges for crimes against humanity could have on the US relationship with the Philippines. A few of the points made in this article deserve attention for AMICC’s advocacy.

Language check:

As is the case in most press coverage about the International Criminal Court, some inaccurate language conveyed common misconceptions about the Court. Some clarification might be needed when discussing the article

• First, referring to the Rome Statute, Emily Rauhala says that the US “never signed the treaty.” Yet, the US did sign the treaty on December 31, 2000, under the Clinton Administration, although Clinton did not send it to the Senate for ratification, and the Bush administration deactivated the signature in its first term.

• Similarly, the article says that Russia “withdrew” from the pact last year; however, more accurate terminology would be to say that it “deactivated” its signature.

• Rauhala writes that the “complaint” against Duterte “accuses the president and 11 associates of mass murder and crimes against humanity.” However, mass murder is a type of crime against humanity.

• South Africa, Gambia and Burundi have not merely “at various times, threatened to withdraw” from the ICC. All three announced their withdrawal last Fall and informed the UN of their decisions, which is necessary to leave the Court. South Africa and Gambia are no longer set to leave the Court, and only Burundi is set to leave.

Impact on The United States Relationship

Rauhala correctly pointed discussion in the article to the impact charges at the ICC will have on US-Philippines relations. Indeed, in the past, the US has shied away from allowing its leaders to shake hands with those accused of crimes by the ICC. Last month, the media was thrown into a frenzy with reports that both US President Donald Trump and Sudanese President Omar al-Bashir would be attending the same summit in Saudi Arabia. The speculation and criticism were not missed by the US government, and the US embassy in Khartoum released a strong statement against Bashir’s attendance: "the United States has made its position with respect to Sudanese President Omar al-Bashir’s travel clear. We oppose invitations, facilitation, or support for travel by any person subject to outstanding International Criminal Court (ICC) arrest warrants, including President Bashir.” If an arrest warrant is issued for Duterte for crimes against humanity charges, the PR optics of US officials meeting with the President might make such meetings increasingly unlikely.

ICC as the last hope

The article quotes Sen. Leila de Lima as saying that the ICC is “the last hope for the Philippines to see an end of killings.” Indeed, the ICC is a court of last resort. The framers of the Rome Statute intended for it to be so; it is not meant to get involved in situations where local or national institutions are already able and willing to execute the rule of law. Correctly explaining the principle of complementarity—although without using the term—Rauhala writes that the ICC “can assert… jurisdiction only if it is clear that local authorities have failed to investigate or prosecute crimes.” The article aptly explains that it does not appear that there is any movement in the Philippines for investigation or accountability for the extrajudicial killings and that institutions have been “kept” from doing so under Duterte.

Point of Contention: Political Pressures on the Prosecutor

Writing about “political considerations” as Rauhala did in the article may be appropriate journalism. However, it would be imprudent and unprofessional for the prosecutor to proceed or dismiss the complaint based on political pressures or fears. The framers of the Rome Statute intended for the Court to stay apolitical in its decisions to prosecute, and the prosecutor has repeatedly stated that she is committed to making decisions about prosecutions following her mandate rather than political tides. That being said, it is difficult for the prosecutor to completely fulfill her mandate without the necessary budget to do so. The article points to the relatively small resources at the Court's disposal given their caseload. While it is best that the Prosecutor remain committed to her mandate without political judgments involved; limited resources may forces the prosecutor to make choices between situations for the ICC to bring to a preliminary examination or investigation even if both situations fall under her mandate. 

The Washington Post should continue to educate its readers about the ICC and potential charges of crimes against humanity. The article does an excellent job of explaining the significance of the complaint and any potential preliminary examination or subsequent charges that might result from the complaint. However, better knowledge and understanding of how the court works is needed by news outlets to avoid contributing to the problem of misinformation about the Court.

Written and researched by Taylor Ackerman, AMICC Professional Associate (unpaid)