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SOMEONE ELSE’S WINDOWS: International accountability, not sovereignty, is the issue

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MALAYBALAY CITY (MindaNews / 16 February) — Notwithstanding the bold assertions of Philippine officials, sovereignty is a lame justification for the refusal to cooperate in the impending investigation by the prosecutor of the International Criminal Court (ICC) into the alleged extrajudicial killings linked to the bloody “war on drugs” of the Duterte administration.

The country, through its ratification of the Rome Statute that established the ICC, adopted the principle enshrined in the treaty that “the most serious crimes of concern to the international community as a whole must not go unpunished and that their effective prosecution must be ensured by taking measures at the national level and by enhancing international cooperation.” (Preamble)

Also in its Preamble, the Statute makes it clear that the ICC “shall be complementary to national criminal jurisdictions.” This means the ICC may only step in if, in its view and based on evidence available to it, domestic processes have failed to address crimes under its jurisdiction namely, the crime of genocide, crimes against humanity, war crimes, and the crime of aggression.

Article 7 of the Statute defines crimes against humanity as “acts committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.” These include murder, torture and enforced disappearance of persons. Human rights groups have contended that the thousands of extrajudicial killings allegedly by law enforcers and “vigilantes” during anti-illegal operations were committed in furtherance of a State policy and can thus be considered crimes against humanity.

“The scale of the ‘drug war’ killings prompted the then-ICC prosecutor, Fatou Bensouda, to announce in February 2018 the opening of a preliminary examination over the deaths, many of which are linked to ‘extrajudicial killings in the course of police anti-drug operations.’ In May 2021, following her analysis of these crimes, Bensouda requested the court’s authorization to open an investigation into the situation in the Philippines. The ICC pre-trial chamber authorized the opening of the investigation in September 2021,” the New York-based Human Rights Watch (HRW) said in an explainer dated 13 February 2023.

Apparently, the Court was convinced that the Philippine government has failed to undertake genuine steps towards investigations and prosecution of cases, and that those allegedly responsible for the bloodbath continue to enjoy impunity. But, as noted by HRW in the same document, “In November 2021, the Philippine government asked the ICC prosecutor to defer the investigation, claiming that national authorities had begun their own investigations into cases of extrajudicial killings attributed to the police during ‘drug war’ operations. Upon receipt of the request, the prosecutor temporarily suspended investigative activities pending his assessment of the request.”

However, the month after Bensouda’s announcement of a preliminary examination, on 17 March 2018, then-President Rodrigo Duterte formally notified the United Nations secretary-general that the Philippines was withdrawing from the Rome Statute. The notification sent to the UN secretary-general was required under Article 127-1. This is so because “the Court shall be brought into relationship with the United Nations through an agreement to be approved by the Assembly of States Parties to this Statute and thereafter concluded by the President of the Court on its behalf.” (Article 2)

Officials as well as those supporting the position of the current administration to not cooperate with the ICC in an investigation into the reported extrajudicial killings— granting the Court rejects the February 3 petition of the Philippine government for the Court to defer its January 26 decision authorizing the resumption of an investigation — cited the withdrawal as justification.

What they did not say is that the withdrawal “shall not affect any cooperation with the Court in connection with criminal investigations and proceedings in relation to which the withdrawing State had a duty to cooperate and which were commenced prior to the date on which the withdrawal became effective, nor shall it prejudice in any way the continued consideration of any matter which was already under consideration by the Court prior to the date on which the withdrawal became effective.” (Article 127-2)

Moreover, Article 127-1 states: “… The withdrawal shall take effect one year after the date of receipt of the notification, unless the notification specifies a later date.”

ICC jurisdiction over crimes committed in the Philippines started on 1 November 2011, the date the Statute went into effect in the country, until March 16, 2019, a year after the formal notice of withdrawal was received by the UN.

Philippine officials, even the most ardent defenders of non-cooperation, know too well that despite the withdrawal the country remains accountable to the Statute and the ICC for the crimes that were committed during this period. Otherwise, they would not have bothered to file the petition to defer the investigation and would just ignore, even deport, the current ICC prosecutor, Karim Khan, if and when he comes here to conduct the probe.

They also understand that the Statute is not an instrument of intervention in domestic affairs. Rather, in situations where national processes have been rendered useless it is a means by the international community to exact accountability from the States Parties to the treaty “to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes.” (Preamble)

(MindaViews is the opinion section of MindaNews. H. Marcos C. Mordeno can be reached at hmcmordeno@gmail.com)

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