The ICC and the fallacy of foreign interference

I am returning to my social media hiatus, which I began a few weeks ago as an experiment but was cut short due to the irresistible social media chatter following the arrest and turnover of former president Rodrigo Duterte to the International Criminal Court (ICC).

I feel the need to live a life that is away from social media and to see if it truly makes a significantly better difference compared to being constantly plugged into it.

I know there is a lot of chatter on social media right now about Duterte and the legal process he is facing before the ICC. However, much of it consists of false news, pity parties, propaganda, and various manipulative communication schemes from trolls and disinformants.

On the other hand, this could be an opportunity to examine and educate ourselves about international criminal law and legal procedures and to engage in rational discourse rather than one driven by emotions. It is just unfortunate that I have chosen, for now, to unplug from social media. But anyway, this column piece is also reposted on The FREEMAN's social media page, so my efforts to help people understand issues in international criminal law can still reach a wider audience.

One of the common misconceptions about the ICC process, which many people hold or even some partisans propagate, is that it constitutes foreign interference in domestic legal processes. We must debunk this assertion.

A foundational concept in international law is that states are free to act unless there is an explicit prohibition. This principle is based on the idea that international law is permissive rather than prohibitive. However, as the world witnessed the inhumanity and horrific atrocities of World War II, international law increasingly operated through explicit limitations on state action, often in the form of treaties and widely-accepted customary international law.

Among these widely-accepted principles --recognized as customary international law and fundamental, non-derogable norms (jus cogens)-- are the laws against the four core crimes under ICC jurisdiction: genocide, crimes against humanity (widespread or systematic attack directed against any civilian population), war crimes, and the crime of aggression (e.g., invasion or military occupation in violation of the United Nations Charter).

I once asked my class in Special Issues in International Law why the ICC limits its jurisdiction to only these four core crimes. Why not include plunder? Or drug trafficking, or widespread corruption?

In my opinion, the reason goes back to the foundational concept in international law I mentioned earlier. These four core crimes are widely recognized as “the most egregious offenses under international law, generating near-universal condemnation.” By focusing on them, the ICC reinforces norms that have been developed through treaties and conventions over decades --widely accepted by almost all states, if not all.

Limiting jurisdiction to “the most serious crimes of concern to the international community” (as stated in the Rome Statute) helps ensure that the ICC deals only with cases of the highest gravity. This also dispels the notion that it functions as a global legal institution that intervenes whenever and wherever it sees wrongdoing in a state. This, I believe, helps safeguard the ICC’s moral and legal authority while preventing it from being overwhelmed by less-severe (yet still serious) offenses or politically-motivated complaints.

Thus, there is no basis to claim or fear that the ICC case before which former president Duterte now stands invites international bodies to interfere in domestic affairs. When it does, it is only in very limited situations and usually with state cooperation. (To be continued)