ICC and realpolitik

Bencyrus Ellorin

THE impeachment filed by Magdalo partylist Rep. Gary Alejano, largely thought as a wild punch against a president who holds supermajority at the House of Representatives, may be a predicate to form a strong case before the international community, eventually leading to the International Criminal Court (ICC) taking jurisdiction on alleged violations of human rights and international humanitarian law in the Philippines.

The idea is not really new. It was first broached in October last year when ICC Prosecutor Fatou Bensouda issued a statement describing the killings of thousands suspected drug dealers and users as “worrying.”

“Extra-judicial killings may fall under the jurisdiction of the International Criminal Court if they are committed as part of a widespread or systematic attack against a civilian population pursuant to a State policy to commit such an attack,” Bensouda said in a statement issued in The Hague.

Among the instances that would warrant the ICC taking on human rights and international humanitarian law cases is when there is demonstration of failure of a country’s judicial and political processes to address these issues. Violations to human rights and international humanitarian laws are covered by Philippine laws and can be filed in Philippine courts.

Among the allegations against the administration of President Rodrigo Roa Duterte is liable for the killing of over 8,000 Filipinos in its brutal war against drugs. The corpus delicti or the body of the crime, are the pile bodies, corroborated by pronouncements by the president himself that he would kill drug dealers and buyers.

Unless there is total collapse of our government systems, the rule of law still prevails over the rule of men or women. And as such the presumption of innocence until proven guilty after a fair trial by the Court is still in effect.

Extrajudicial killings are state sanctioned murders without the benefit of judicial processes. It is tantamount to the concentrating the powers of judge and executioner to only one actor.

Dictatorial and unstable governments have the natural propensity to violate human rights as it deems necessary the use of the State’s the coercive powers for self-preservation. The theory being pushed by the Duterte administration is that the drug problem is so severe it has become a threat to the state. Many disagree and would want the drugs problem addressed through the regular workings of the criminal justice system.

With thousands of bodies piling up in the brutal war on drugs, the coming out of self-confessed former state assassins and the impeachment complaint filed against the President, the role of the International Criminal Court has been considered. Rightly so.

The reason for ICC or any foreign institution to intervene in domestic affairs of a sovereign state should be more than compelling.

In a parallel universe, in 2009 the United Nations and the ICC had been enjoined to intervene to stop the wanton violations of human rights and international humanitarian law e.g. genocide, against the military rulers of Myanmar, the International Human Rights Clinic at Harvard Law School made compelling legal arguments for the UN Security Council and the ICC to haul Myanmar’s military dictators to face trial at The Hague.

“The world cannot wait while the military regime continues its atrocities against the people of Burma. The day may come for a referral of the situation in Burma to the International Criminal Court or the establishment of a special tribunal to deal with Burma. Member States of the United Nations should be prepared to support such action. The people of Burma deserve no less.”

This rocked the Tatmadaw (Burmese military) which has ruled the country since the 1990s after it foiled the democratic transition following Ne Win’s resignation in 1988; and with the resounding election of Daw Aung San Suu Kyi and her National League for Democracy (NLD) in 1989. Than Shwe the former head dictator of Myanmar went on charm offensive. It hosted UN Secretary General Ban Kyi Moon for the second time in 2010. The second for the UN chief who came to oversee post cyclone Nargis rehabilitation work in 2008.

Than Shwe also ordered token releases of political prisoners in 2010. And in 2011 proceeded with the referendum of the new Constitution, followed by national election in 2012 that saw Aung San Suu Kyi gaining a seat in the Hlutaw (Myanmar parliament). Since then, the democratization process progressed. Serious conflicts with ethnic Myanmar nationalities, however continue to put the country’s democratization in balance.

Also concessions have been made like the creation of the position of State Counsellor for Aung San Suu Kyi. This is a position equal to the Prime Minister and has been believed to allay grievances over the constitutional prohibition of the Daw holding the presidency because of her marriage to a foreigner, the late British historian, Michael Aris, with whom she has two sons.

Myanmar is a complex multi-ethnic, multieligion country. The predominant nationality is Burma or the Buhmah. Theravada Buddhism is the dominant religion. The Tatmadaw is dominated by the Burmese, so with the Daw, daughter of their independence hero Bogyoke Aung San.

Seven other ethnic nationalities–Kachin, Mon, Shan, Chin, Kayin, Kayah and Rakhine–continue to demand more autonomy and better concessions from the Napyidaw government.

Democratization may have finally dawned on Myanmar after over five decades of failed socialist experiment by Ne Win (1962 to 1988) and military rule from 1991 to the 2011.

But the ICC has never gotten hold of the brutal Tatmadaw leaders.

Myanmar’s economy is now emerging with its vast natural resources. The country has about twice the size of the Philippines and a population of only around 50 million. Myanmar, a strong ally of China, has rich mineral resources, with one of the richest gemstone deposits in the planet, gold, timber and rice fields that can compete with world’s big three–Thailand, Vietnam and Cambodia.

Compared to the decades-long oppression in Myanmar, the emerging political oppression in the Philippines is new and may yet pale in comparison. But that is not to say it should be ignored–that the international community should not turn a blind eye.

Realpolitik may come into play in the Philippines and change the game. How this administration positions the country in international relations could change the nature of intervention by the international community.

The US and other western countries have deep concerns over Duterte’s flirting with China and Russia, and his generally anti-west foreign policy. Can the US and EU afford the Philippines turning unabashedly pro-China–in addition to Myanmar, Cambodia and Laos, which have close ties to Beijing, in the Association of Southeast Asian Nations?

While on paper, there has to be real collapse of the rule of law, exhaustion of all judicial and political remedies for cases involving violations of human rights and international humanitarian before the ICC can come in, realpolitik which is based on ones standing in international relation and pragmatic political considerations of key regional state players may come into play and lo and behold the ICC will dawn on Malacanang.

Less than this would be the eventual economic sanctions which could hurt the common tao, who may eventually fight against this regime.

Hopefully, this administration will soon realize that the Philippines cannot afford to isolate itself from traditional trade and political allies. It may add more allies like Russia and China, but not necessarily burn bridges with the US and European Union.

Hopefully, too, international pressure would soften this administration’s handling of the opposition and realize that with solid mandate from the people, the current occupant of Malacanang is secured in his position.

The feeling of insecurity is most dangerous because instead of governing, the powers-that-be are pre-occupied with consolidating power, often resorting to draconian measures like political persecution and use of the hard hand of the state in the guise of going after criminals, but essentially to create a chilling effect on the public.

All said, the bottomline of this anomaly has never been honest-to-goodness blood thirstiness, but power, power, power!

(BenCyrus Ellorn finished International Studies at Xavier University. He is a former peace worker as fellow of the FredsKorpset [Norwegian Peace Corps] in Myanmar. E-mail: bency.ellorin@gmail.com)