The ICC in retrospect (2)

Jude Josue Sabio .

Conclusion

IN response to the genocidal bloodbath in Rwanda in 1994, the UN Security Council also established the International Criminal Tribunal for Rwanda or the ICTR  which is based in Arusha, Tanzania. The ICTR, which is an offshoot of the ICTY, is also an ad hoc criminal tribunal limited only to the specific situation in Rwanda.   It convicted the first head of state for genocide in the person of Rwandan Prime Minister Jean Kambanda who confessed his guilt.

Initially, the significant world leaders played blind to the Rwandan genocide committed starting in April 1994, dishonesty pretending that what was happening was not genocide.  It was only much later, just like in the case of Yugoslavia, that the UN acted to create the ICTY, but regrettably only after the bloodbath had already claimed thousands of lives at the hands of the genocidaires.

Unlike the ICTY and ICTR, the Special Court for Sierra Leone is an international criminal court established by a bilateral agreement between the UN and the government of Sierra Leone.  It is a hybrid international criminal court applying only international criminal law to the armed conflict in Sierra Leone.

Significantly, this Sierra Leone Special Court, sitting in Sierra Leone, indicted Charles Taylor, for crimes against humanity for his role in financing and supporting the bloodthirsty rebel force led by Foday Sankoh that waged war against the Sierra Leonean government.

In preliminary proceedings challenging its lawful jurisdiction to indict a head of state like Charles Taylor, this court ruled that it is an international court, because it is not part of the Sierra Leone legal justice system, and that since it is not a state but an international court, it can legally indict a sitting head of state. Significantly, its ruling is not contrary to the decision of the International Court of Justice in the case of Democratic Republic of Congo  vs. Belgium that a state cannot prosecute a sitting head of another state, on the principle that states are equal.

The Special Court of Sierra Leone indicted Charles Taylor even at a time when he was still a sitting President of Liberia.   Indeed, this is a landmark and authoritative legal precedent for an international criminal tribunal to indict an individual even if he is still a sitting head of state enjoying sovereign immunity in his own country.

Due to mounting pressure on account of the arrest warrant against him, Charles Taylor later resigned and fled into exile in and protected by Nigeria. Later, Liberia demanded his surrender, and brought him to the Sierra Leone court, but, for security concerns, he was later brought to the premises of the ICC and was later tried there.  The Special Court for Sierra Leone later convicted Taylor for abetting and aiding crimes against humanity and is presently serving his sentence at a prison in Great Britain.

These international criminal tribunals are the precursors of the International Criminal Court that later took shape in 1998.   After more than half a decade since Nuremberg, 120 countries voted for the creation thru a treaty called the Rome Statute of an International Criminal Court in a conference in Rome.

Unlike its predecessors, the ICC is the first truly permanent international criminal court which is independent of the UN, although it is in relationship with it.  Gone are the days when the international community, thru the UN, would have to create ad hoc criminal tribunals in response to country specific atrocities.  The age of legal enforcement in international criminal law has finally dawned.

After so many years of lobbying, thru the efforts of the Philippine Coalition for the International Criminal Court, the Philippine Senate finally ratified the Rome Statute and the Philippines became a State Party to said treaty.   By such ratification, the Philippines consented to be bound by the penal jurisdiction of the ICC, the exercise of which can legally continue for legal matters already pending before it, notwithstanding a subsequent withdrawal, as expressly provided for in the Rome Statute.

It is sad to note that the ICC came into being only so many years after the fall of Marcos.  Had there been an ICC at that time, Marcos may well have been indicted and punished in the ICC.  But as a measure to end impunity now in the era of legal enforcement in international criminal law, Duterte who is a fan of Marcos stands in contempt as the first sitting head of state, in the Philippines as well as in Asia, to be subjected to an ongoing preliminary examination in the ICC for a particular crime against humanity.

Under the legal precedent in the case of Liberian President Charles Taylor, Mr. Duterte can legally and validly be indicted by the ICC even if he is a sitting head of state still enjoying domestic immunity.  Ironically, at a time when legal enforcement is already at hand to end impunity, Mr. Duterte will go down in infamy as a head of state withdrawing in panic and fright from the ICC, against the unstoppable worldwide momentum of global justice, just in order to subvert and evade its overarching international criminal jurisdiction over him for mass murder.