ICC and the rigors of curbing crimes against humanity

by Joel Pablo Salud

Sourced from ICC website


How effective is the International Criminal Court (ICC) in curbing crimes against humanity? A better question, perhaps, should be: is the ICC sustainable given its current track record and spending?

I was thinking of writing a Holy Week piece for the magazine until I came across a news item published in the Philippine STAR last March 20: the headline read, “UN: Philippines’ pullout from ICC effective in 1 year”.

The report said, “UN deputy spokesman FarhanHaq said the Office of Legal Affairs’ treaty section received a document Saturday signed by Foreign Secretary Alan Peter Cayetano informing Secretary-General Antonio Guterres of the Philippines’ decision to pull out of the ICC.”

Under the Rome Statute, the withdrawal shall take effect one year “after the date receipt, i.e., on March 17, 2019”.

Nothing was said about Pres. Rodrigo Duterte signing any official document or assigning Foreign Sec. Alan Peter Cayetano to make the case for him or draft a document on his or the country’s behalf.

The report only reminded us of the context on which this alleged official document may have been based: on the statement by the President that the Philippines was withdrawing its membership from the Rome Statute.

All this came on the heels of the announcement of ICC prosecutor Fatou Bensouda that she would be conducting a preliminary examination of Duterte’s war on drugs based on the complaint of a Filipino lawyer. In this regard, the report said, “He [the President] cited ‘a concerted effort’ by Bensouda and UN human rights officials ‘to paint me as a ruthless and heartless violator of human rights.’”

Prior to this news item, I also came across an opinion piece in Forbes Magazine written by David Davenport titled, “International Criminal Court: 12 Years, $1 Billion, 2 Convictions” published in March 2014.

Davenport is a fellow at the Hoover Institution, Stanford University’s policy think tank, and a visiting fellow at the Ashbrook Center (2016-17). “I write about politics, law and world affairs, piecing together where the policies underlying the headlines will lead us. I have enjoyed an interesting career as an attorney, professor, university president (Pepperdine University, 1985-2000) and now a research scholar. I recently co-authored a book, ‘Rugged Individualism: Dead or Alive?’ and earlier ‘The New Deal and Modern American Conservatism.’”

At the time Davenport wrote the piece, the ICC had had only two convictions and a billion dollars in expenditure from the day it started operations back in 2002.

“News stories recently reported that the International Criminal Court convicted a Congolese warlord of being an accessory to war crimes and crimes against humanity.   Rarely were readers told that this is only the second conviction obtained in the Court—both of Congolese warlords—after 12 years of the Court’s operation and over $1 billion in expenditures. Rarer still was the insight that even this conviction, on a 2-1 vote, was long in coming and disappointing in outcome since the criminal was acquitted of the most serious charges, and was only convicted at all because of a mid-course correction to charge him with being merely an accessory to the crimes.

“The obvious question few seem to be asking is whether the I.C.C. is simply too expensive and inefficient to justify. Originally designed to make certain that war crimes, genocide and crimes against humanity were not ignored, the Court is supposed to achieve a sufficiently robust presence that it contributes ‘to the prevention of such crime’. To that end, it has 34 judges, over 700 staff, and an annual budget of $166 million. They say you can’t put a price on justice but $500 million per warlord conviction seems high by any standard. And what do 34 judges do all day? You don’t have to be a legal expert to figure that the preventive effect of convicting two warlords in 12 years doesn’t exactly leave international war criminals shaking in their boots.”

True or not, or a little bit overstretched, the performance rate of the ICC leaves much to be desired—but only at first glance. I sought the insights of several friends and colleagues about the issue, and they reminded me that spending $166 million dollars and having a staff of 700 minus the 34 judges may seem flamboyant. However, there is more to convicting a war criminal or one guilty of crimes against humanity than mere hearsay.

One friend said, “Basically, it’s the fact that it exists at all and has a fully functional machinery behind it that makes the ICC valuable in the first place. It’s the whole idea that if someone wants to hold Trump or Putin, Erdogan or Maduro, accountable for crimes against humanity later on, there is a validly instituted, capably staffed international judicial mechanism with established rules of procedure that can receive the complaint (or initiate the investigation, since the ICC has the power to launch inquiries motuproprio).

“As to how many convictions we can expect, though: that remains to be seen — and what conviction rates mean is a matter for argument, depending on the politics of the legal expert you ask. But most human rights lawyers worth their salt would give you the same answer behind why it is equally important to mount a capable defense of alleged top-level Al Qaeda operatives detained in Guantanamo and ensure that they are not tortured: you cannot right a wrong by committing another wrong, and the integrity of the means you use to mete out justice should be as principled and non-negotiable as the very rights you are seeking to protect.”

My friend’s premise is this: what people don’t know is that the ICC is different from most international tribunals in that it focuses on the individual’s criminal activities and not the state’s. The fine print here is that, “an international court seeking to pin down a specific person as guilty (or not) of genocide, war crimes, and/or crimes against humanity needs to access a substantial amount of evidence at a sufficiently convincing level of credibility to reach a fair verdict. And the analysis required, the volume of research and quality of legal expertise it would take, isn’t going to come cheaply nor would the process be quick. So that’s the fine print there.”

Because in truth, my friend said, “How does one punish states anyway?”

“Hence, the push to hold individual perpetrators criminally liable. But to do that credibly as an institution meant to protect human rights, you have to ensure that due process is observed. Like any other court, the ICC is bound to apply fundamental judicial guarantees such as the presumption of innocence. So it’s not very surprising that convictions have been secured only in a context where the violations have been far too apparent, systematic, and relatively well-documented and the sense of impunity quite glaring.”

Word on the social media grapevine says that since the country’s withdrawal, should Cayetano pull it off, is still a year in coming, any complaint against Duterte would still be heard and investigated on by the ICC.

I not sure how all this would pan out in the end. I believe no tribunal who fights for human rights should take the easy road. It’s hard enough as it is to impose due process on criminals who disregard due process against their victims, to presume them innocent until proven guilty.

This much, however, is certain: one should never put a price on justice. G









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