ICC ARREST WARRANTS: AFTER PUTIN, DUTERTE?

LIKE in many national court jurisdictions, individuals ordered arrested by the International Criminal Court (ICC) on suspicion of having committed a crime are presumed innocent unless proved otherwise in a fair trial. In the case of Russian President Vladimir Putin and his Commissioner for Children’s Rights, Maria LvovaBolova, of whom the ICC recently issued a warrant of arrest for the war crime of unlawful deportation of children, and the transfer of children from occupied areas of Ukraine to the Russian Federation, many people, including those in media, have already been referring to them as “war criminals.” They should properly be called at this stage “suspects” and during their trial “the accused.”

There are people, however, who for good reason cannot conceive of Putin being arrested, detained and tried. The Russian Federation is not a state party of the ICC, and even if it were, no one would dare handcuff Putin. Russia is a police state, and every sensible Russian exists only to make Putin smile. Anyone with some courage and conviction ends up poisoned or pushed out of their apartment windows.

Demonizing the ICC

As expected, the Russians are outdoing each other casting invectives against the ICC. The Russian permanent representative to the United Nations in New York from his seat in the Security Council called the ICC a puppet of the West. In reality, the ICC is no more a puppet of the US than it is of Russia. Both major powers were signatories of the Rome Statute but balked at getting the treaty ratified by their legislatures. The reason? They thought of protecting their troops abroad even if they’re killing civilians and raping women. Criminals they may be but they are our boys!

The Russians backed their troops in Syria against accusations they used chemical weapons. President Donald Trump fumed at the ICC when it announced its investigation for alleged war crimes of American troops in Afghanistan. The then chief prosecutor of the ICC Fatou Bensoulda’s US visa

was canceled, her relatives banned from entering the US and her assets in the US frozen for doing her job.

But the winner of the ass-licker prize of the month is Prime Minister Medvedev who threatens to nuke the headquarters of the ICC in The Hague!

To stop and deter

The issuance of the arrest warrants was not entirely an exercise in futility. Chief prosecutor Karim Khan said that his request for the issuance of the warrants was to stop and deter Putin and Lvova from pursuing the crime, and it appears the move has been successful in this objective so far. The warrant spoils the pair’s diplomatic and travel plans this year and possibly forever. The 143 state parties of the ICC are prepared to arrest the pair should they stray to any of these countries. They may even force a plane carrying them to make an emergency landing and voila! They’re on the way to the ICC Detention Center.

The reason people tend to prejudge the case of Putin is they watched his atrocities taking place live on television. It is for the same reason that because I watched the war in Ukraine play out live on television, I wonder why the ICC was arresting Putin for committing just one crime. As I have written in a previous article in this corner, it has appeared to me that Russia has been bent on committing every war crime in the book, to which must be added the other core crimes under the jurisdiction of the ICC, viz. genocide, crimes of humanity and the crimes of aggression. I am glad that further readings have shown me mistaken in assuming that because Ukraine did not ratify the Rome Statute, the ICC had no jurisdiction over it. It has turned out Ukraine has twice accepted the jurisdiction of the ICC over crimes committed by the Russians on its territory. But it seems some provisions of the Rome Statute as amended make it impossible for the ICC to prosecute Russia for the crime of aggression.

While the Rome Statute included crimes of aggression on the list of crimes under the ICC jurisdiction, it left their full definition to future ICC meetings. As legal commentators have noted, this reflects the fact that the world was and is still in the process of criminalizing war as an instrument of foreign policy. When the statute was amended to include the definition, the amendments not only limited the jurisdiction of the ICC to those state parties that ratified the amendment but provided state parties an opt-out clause from the jurisdiction of ICC over crimes of aggression. The amendments are interpreted that the ICC to be able to prosecute the crime of aggression in the Ukraine situation, both Ukraine and Russia must be state parties and must have ratified the said amendments.

Special EU war tribunal

The people the world over that have condemned Putin for invading Ukraine must be elated that a solution has been found to fill this gap in the Rome Statute. The European Union has announced the creation of a special tribunal to prosecute and try Putin for the crime of aggression similar to the tribunals on the former Yugoslavia and Rwanda using Eurojust plus representatives of ICC and the Ukraine as the tribunal’s investigative arm.

Those worried that Putin will have committed his crimes with impunity may find solace in the fact that the national courts of Ukraine are trying those charged with war crimes as far as they are able. The ICC will prosecute those that the national courts will not be able to. This will be in observance of the rule of the Rome Statute for the IOC only to complement national courts in their ability to make justice prevail through the prosecution of these worst crimes known to man.

Regarding the rule of complementarity of the IOC, the Philippine government previously requested the ICC prosecutor to defer the investigation of the killings resulting from former president Rodrigo Duterte’s war on drugs to domestic authorities. Following the rule, the prosecutor granted the request. Unfortunately, the judges of the ICC recently ordered the resumption of their prosecutor’s investigation because the Philippine government had failed to substantiate its assertions that it was doing enough to investigate and prosecute those killings. According to the court, the Philippine government’s initiatives “assessed collectively do not amount to a tangible, concrete and progressive investigative steps in a way that would sufficiently mirror the court’s investigation.”

It is time for the Marcos administration to reconsider the Duterte case before the ICC from the perspective of the national interest rather than the personal interest of the former president. It will do well to heed the advice of the Supreme Court for the government to extend a hand of cooperation to the ICC in the prosecution of this case which after all sprang from the complaints of mostly poor Filipinos claiming to have lost their relatives unjustly to Duterte’s war on drugs. Non-cooperation does little if at all to maintaining and enhancing the prestige of the Philippines in the international arena.

I do not know what national interest was served by President Duterte’s withdrawing the country’s membership as a founding state party in the ICC. With the emergence of a possibly expansionist power with a tenuous consciousness of the value of human life in our neighborhood, it makes no sense to be outside the ICC.