Commentary: Dealing with the ICC — the American way

ANTI-Duterte forces didn’t waste the PR value of the announcement of the prosecutor of the International Criminal Court (ICC) Fatou Bensouda that her office would be conducting a preliminary examination of the situation in the Philippines. Preliminary examination is a prelude to an actual investigation, which commences after ICC’s pre-trial chamber gives Bensouda the permission to start it. Since it’s detrimental to their PR agenda, the anti-Duterte forces didn’t care about the difference between the two stages.

Of course, the Liberal Party (LP) is happy. Among other things, the decision of the ICC prosecutor is a step closer to their end goal — to remove Duterte from power. As international relations and law scholars Nesam McMillan and David Mickler wrote in “From Sudan to Syria: Locating ‘regime change’ in R2P and the ICC,” activating ICC processes “may function to delegitimize political actors, thereby potentially facilitating their exit from the national political scene in a less direct manner.”

Senator Bam Aquino, one of LP’s key figures, hailed the ICC as “an unbiased and globally respected tribunal.” What’s his basis for that impression? Wasn’t he aware that the Philippines and Cambodia are the only two Southeast Asian countries that are members of the court? Did his staff fail to read the much-publicized position of the African Union backing the mass withdrawal of its members from the ICC? And maybe, his research team failed to grasp the unfairness of giving power to the UN Security Council (UNSC) to refer situations for investigation by the ICC, while three out of its five permanent members aren’t members of the ICC.

The United States is one of these three. Since Senator Aquino’s political party serves as one of the local marionettes of the US, I wonder whether they think it will help their cause if the Filipino public fully knows how the Americans deal with the ICC.

So how does the US regard the ICC? Certainly not with respect, unless the following US actions fall within Aquino’s idea of respectful behavior.

Not only has the US refused to ratify the Rome Statute, which established the ICC, it also negotiated bilateral agreements, issued threats against other countries, and enacted a law that would shield its citizens from ICC prosecution. Citizens of non-member countries can be prosecuted if they committed war crimes, crimes against humanity, and genocide in any of the member state of the ICC after 2002. To avoid having their citizens experience that, the US government did the following:

In 2002, the US Congress passed the American Service Members Protection Act, also known as The Hague Invasion Act. It authorizes the use of military force to invade The Hague, Netherlands in order to extract Americans detained by the ICC.

In the same year, at the UNSC, the US pushed for the passage of Resolution 1422, which preempted any ICC investigation or prosecution of former or current personnel of any “contributing State not a Party to the Rome Statute over acts or omissions relating to a United Nations established or authorized operation.” The resolution passed as a way to avoid a US veto of the renewal of UN peacekeeping operations.

The following year, US Defense Secretary Donald Rumsfeld threatened to remove the headquarters of the North Atlantic Treaty Organization (NATO) from Brussels “unless Belgium revoked a legislation giving its courts the power to prosecute foreigners for alleged war crimes committed anywhere in the world.” Rumsfeld said: “By passing this law, Belgium has turned its legal system into a platform for divisive politicized lawsuits against her NATO allies” (The Telegraph, “US threatens to pull Nato HQ out of Belgium,” June 13, 2003).

And from 2002 onwards, the US negotiated the so-called Article 98 agreements with over 100 countries. Through these bilateral pacts, the US and another country agree that they cannot surrender or transfer each other’s citizens to be tried in an international tribunal, unless the court is established by the UNSC. The Article 98 agreement between the US and the Philippines entered into force on May 9, 2003.

After the announcement of the ICC prosecutor, Senator Aquino said “walang dahilan para matakot kung wala naming tinatago ang administrasyon (there’s no reason to be afraid or scared if the administration isn’t hiding anything).” It would be interesting if Senator Aquino thinks the US government is in anyway hiding anything or scared by doing all those things that would prevent the ICC to investigate or prosecute any of its citizens. Will he object to any move of the Duterte administration to copy how the Americans deal with the ICC?

(Published in The Manila Times on 22 February 2018)

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