By Getsy Tiglao
The United States, known worldwide for its advocacy of liberal dogmas such as human rights, shocked the world in 2002 when it withdrew from the International Criminal Court. One of the reasons for its withdrawal was the fear that the ICC would become a forum for politicized prosecutions of US citizens.
Indeed, it was a well-founded concern for an imperialist superpower that has first-hand knowledge and experience on how easily and quickly, events can be politicized and used to destabilize nations or overthrow presidents.
The US was an early supporter of the ICC with former President Bill Clinton signing the Rome Statute which established the permanent international court. But even as he signed, he noted the “significant flaws” in the treaty and said he will not recommend to his successor that it be submitted to the US Senate for ratification.
One of the flaws cited is that there weren’t enough safeguards in the Rome Statute against political manipulation. The US was also worried — rightly so given its military adventurism — that its military officials or even its presidents will be targeted by its enemies through the filing of cases at the international court.
Clinton’s successor at the White House, President George W. Bush, took Clinton’s criticisms of the ICC to the next level. His administration formally informed Kofi Annan, then the secretary-general of the United Nations, that it was rejecting the Rome Statute and the ICC.
Making a strong point that the American presidency was beyond all international institutions, the US letter to the UN wasn’t even signed by Bush but only by a mid-level bureaucrat – John R. Bolton, the State undersecretary for arms control and international security.
Bolton’s short and terse letter to Annan read: “This is to inform you, in connection with the Rome Statute of the International Criminal Court adopted on July 17, 1998, that the United States does not intend to become a party to the treaty.
“Accordingly, the United States has no legal obligations arising from its signature on December 31, 2000. The United States requests that its intention not to become a party, as expressed in this letter, be reflected in the depositary’s status lists relating to this treaty.”
In effect, the US “unsigned” the Rome Treaty. Bush administration officials later expounded on why the US was renouncing the ICC, citing among others the lack of adequate checks and balances on the prosecutors and judges; the dilution of the US Security Council’s authority over international criminal prosecutions, and the lack of any effective mechanism to prevent politicized prosecutions of American military personnel.
While Clinton signed the Rome Statute, the US Senate did not ratify it thus giving the US government a certain legal loophole to opt out of the international treaty. Sovereign states do not consider a treaty or agreement as lawful or binding unless its Senate or Parliament gives its formal consent.
Here in the Philippines, where most of our senators just follow whatever is the popular idea of the moment, the Rome treaty creating the ICC was quickly ratified in August, 2011. The issue of how the treaty could impact on Philippine sovereignty and judicial authority wasn’t even considered.
At that time, the mainstream thinking was that the ICC was only for the prosecution of East European or African leaders who had committed genocide or war crimes. Few Filipinos thought that this all-encompassing treaty would one day serve as the vehicle by which destabilizers could oust a popular president who is fighting the heavily-financed drug cartels.
Only one senator in 2011 had the legal foresight to oppose the Rome Statute, Senator Juan Ponce Enrile. He pointed out that the ICC could have repercussions on Philippine security, with our military personnel being exposed to all kinds of suits from alleged crimes or atrocities, which would impede their efforts to maintain peace and order.
Extraordinarily prescient, Enrile also said that if the Philippines became a party to the Rome Statute, Philippine presidents will lose their right to invoke their immunity from suits before the ICC.
Today, Philippine president Rodrigo Duterte faces the prospect of a trial before the international court. While Duterte will be charged as an individual, as president and father of the nation he represents each and every Filipino. His fate will be the fate of us all.
ICC Prosecutor Fatou Bensouda announced last week that she will begin conducting a preliminary examination, ahead of a possible formal investigation into the alleged “extrajudicial killings” in the Philippines. The case against Duterte was filed by a self-confessed murderer, Edgar Matobato, and two staunch Duterte critics, Senator Antonio Trillanes IV and Rep. Gary Alejano.
The Duterte administration should now take this case seriously, especially given the intelligence report that has come its way that former Filipinos based in New York such as Loida Nicolas Lewis are working with the local opposition to bring down the government.
Lewis has denied Duterte’s charges that she is part of the plot to advance the case against Duterte in the ICC in order to overthrow his government. Lewis is a known critic of Duterte and a supporter of Vice President Leni Robredo, who will succeed Duterte if he is ousted.
The ICC, by even considering the case against Duterte, has violated its principle of complementarity that says that it will only take a case if local courts are unable or unwilling to prosecute.
It’s really insulting that the ICC has not even taken cognizance of the fact that we have a strong judicial system. Rogue policemen are currently facing charges in courts. A senator linked to drug lords is now in a jail. Even our presidents are subject to impeachment and corruption laws. What more do we have to prove?
Last year, President Duterte said that he is considering withdrawing the Philippines from the ICC, calling it a “useless” institution. He can still pursue this option, but he needs to talk with his Senate allies to begin the legal and political process of abrogating the Rome Treaty.
The Philippines can survive without the ICC, which is just another liberal conceit that it can change the world via international judicial and media harassment. The US, China, Israel, Russia, and many more countries are not members of the ICC and they are still thriving in the world. Only Matobato and his ilk will cry if we withdraw from the ICC.