The threat of ICC

Today’s headlines are focused on the ouster of Miguel Zubiri from the Senate presidency. As everyone knows by now, he has attributed the reason for his ouster was that he did not follow instructions.

There is an alleged list of the 15 senators who supported his ouster. What is a little surprising to me is that this list contains the names of senators belonging to the presumably Duterte bloc, namely Bong Go, Bato de la Rosa, Francis Tolentino and Imee Marcos.

According to a news story, one of the reasons Zubiri was removed was because he defended Bato de la Rosa, who presided at a Senate hearing on the alleged inclusion of President Marcos in a Philippine Drug Enforcement Agency (PDEA) list of suspected drug users. If this is true, the irony is that de la Rosa eventually voted for the ouster of Zubiri.

I can safely predict that this ouster will stop being the front page news and sooner or later, the main domestic political issue will go back to the drug war investigation by the International Criminal Court (ICC). The main question is whether the ICC prosecutor will issue any arrest warrant against former president Duterte and other people alleged to have been part of the extrajudicial killings (EJK) of the drug war.

The ICC process begins with the prosecutor reviewing evidence and then requesting the issuance of arrest warrants. This was the recent process in the request of the prosecutor against five top ranking Israeli and Hamas leaders, including Israeli prime minister Benjamin Netanyahu.

The ICC prosecutor also requested arrest warrants for Vladimir Putin. This indicates that the ICC does not seem to have any qualms about issuing arrest warrants even against the highest officials of any land.

Even if the prosecutor decides to request issue of arrest warrants against former president Duterte and others involved in the drug war, the ultimate decision on whether to grant any arrest warrants rests with judges in the ICC’s Pre-Trial Chamber.

To issue an arrest warrant, the ICC judges must be satisfied that there are reasonable grounds to believe that the suspect has committed a crime within the jurisdiction of the ICC. They may decide to issue arrest warrants if they deem it necessary to ensure a wanted person appears at trial or to stop them from obstructing an investigation or to prevent them from continuing to commit an alleged crime.

The judges may issue a summons instead of a warrant if they are satisfied that the person will appear voluntarily before the court.

In the case of Duterte and the other possible participants in the EJK, it is safe to say that the ICC will issue an arrest warrant rather than a summons. The persons involved have publicly stated that they will not cooperate with the ICC.

In the past, ICC judges have taken from a few weeks to several months before they issue arrest warrants. For example, after the prosecutor requested a warrant against Vladimir Putin on Feb. 22, 2023. But there are also examples of when it has taken a much longer period.

The ICC does not have a police force and is dependent on its 124 member-states to carry out these arrest warrants against the accused. Out of the 124 countries, 33 are African states, 19 are Asia Pacific states, 19 are from Eastern Europe, 28 are from Latin America and 29 are from Western Europe. The Asia-Pacific states are Afghanistan, Bangladesh, Cambodia, Cook Islands, Cyprus, Fiji, Japan, Jordan, Kiribati, Maldives, Marshall Islands, Mongolia, Nauru, Republic of Korea, Samoa, Palestine, Tajikistan, Timor-Leste and Vanuatu.

The ICC is the world’s only permanent international court with the power to prosecute individuals accused of war crimes, genocide and crimes against humanity. It cannot try defendants in absentia but its warrants can make international travel difficult. When a suspect is arrested, he or she is transferred to The Hague to appear before the court.

The Philippines is no longer a member of the ICC. The interesting issue is what the Philippine government will do in the event that arrest warrants are issued against the former president and other suspects in the EJK. According to several news sources, the government is presently studying all its options.

The government’s dilemma is that we are no longer members of the ICC. Unless we return as member of the ICC, any arrest warrant will not be implemented in the Philippines.

I believe that the issue of ICC and a potential arrest warrant for the EJK perpetrators will be a continuing threat that the government can continue to wield.

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