The prosecutor of the International Criminal Court (ICC), Fatou Bensouda, announced on February 8 that her office has begun a “preliminary examination” of the situation in the Philippines. Her office “will [analyse] crimes allegedly committed in [the Philippines] since at least July 1, 2016, in the context of the ‘war on drugs’ campaign launched by the government of the Philippines”.
President Rodrigo Duterte reacted by turning melodramatic, saying he has no qualms about dying by “firing squad” because it would be his distinct honour “just to imitate the way [independence hero] Rizal died.” In reality, the ICC generally imposes a penalty of up to 30 years in prison, never the death penalty.
The ICC website lists 25 cases and 42 defendants that it is trying or has tried. Of these, three are ongoing, four were dismissed before trial was completed, one has resulted in acquittal, and five have resulted in conviction. Twelve other cases are on hold as the accused are still at large.
Among those is the current president of Sudan, Omar Hassan Ahmad alBashir, who has not been arrested. Awaiting trial is the former president of Ivory Coast, Laurent Gbagbo, who is now detained by the ICC.
The list of accused also includes a minister of interior, a deputy prime minister, a minister of higher education, an army lieutenant general, and a number of ranking officers of rebel groups. This shows that the ICC prosecutes not only heads of state but also lower ranking officials. This should serve as a cautionary tale for Philippine officials involved in the brutal “war on drugs”, which has claimed more than 12,000 lives since Duterte came to power in 2016.
All of the pending ICC cases involve crimes against humanity, war crimes or genocide, except three cases where the accused are charged with the crime of “corruptly influencing or attempting to corruptly influence witnesses by offering to pay them to withdraw as ICC prosecution witnesses”.
Many of those who are charged with crimes against humanity are being made liable for the acts of murder, rape, torture, and other crimes committed by their subordinates. While the accused themselves did not personally commit the crimes, they are being made liable for directly or indirectly participating in the planning or implementation of the crimes perpetrated by their subordinates, or because they “made essential contribution to the realisation” of the crimes.
All but one of the accused in the 25 ICC cases are men. The exception is Simone Gbagbo, who is accused of participating in a plan to commit crimes against humanity when her husband ran in the Ivory Coast presidential election.
All the accused are citizens or residents of African countries. Because of this, there are strong accusations that the ICC is biased against Africans. Consequently, there are threats by African countries to withdraw their membership at the ICC. The international law community is abuzz with speculation that the ICC wants to demonstrate that it is not biased against Africans and that it is raring to initiate and hear a case involving an accused who is not from an African country. This does not bode well for President Duterte.
After the ICC prosecutor announced the preliminary examination of the Philippine situation, Duterte defiantly declared: “The war or the drive against drugs will not stop. And it will last until the day I step out.”
Will our president be the first outside Africa to be prosecuted at the international court? The ICC preliminary examination is the first step that may lead in this direction. If the drug killings continue, Duterte will have failed to heed the writing on the wall.