Inside Philippine politics & beyond

Lesson for Duterte: Burundi withdrew from the Rome Statute but International Criminal Court case went ahead

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By Raïssa Robles

The Duterte government claims that withdrawing from the Rome Statute  would make Duterte’s case moot and academic.

Malacanang officials would do well to follow closely the ongoing case of Burundi before the International Criminal Court (ICC) for three reasons.

First, because the Burundi government had also withdrawn from the Rome Statute but that did not stop the investigation by the International Criminal Court.

The Rome Statute is the legal basis for the creation of the ICC.

The ICC is a special court created for the sole purpose of trying individuals who commit atrocious crimes such as mass murder using state forces. This is in contrast to the focus of the International Court of Justice (ICJ) which holds governments that commit crimes against other nations to account.

Second, because the prosecutor in the Burundi case, Fatou Bensouda, is the same one looking into the case of Duterte and 11 others, namely:

1. Foreign Secretary Alan Peter Cayetano;
2. Justice Secretary Vitaliano Aguirre;
3. Senate Blue Ribbon Committee chair Richard Gordon who also happens to chair the Philippine Chapter of the Geneva-based International Committee of the Red Cross.
4. Speaker of the House Pantaleon Alvarez;
5. Philippine National Police Director General Ronald de la Rosa;
6. Solicitor General Jose Calida;
7. National Bureau of Investigation Director Dante Gierran;
8. Former Interior and Local Governments Secretary Ismael Sueno;
9. Police Superintendent Edilberto Leonardo;
10. Police Superintendent Royina Garma;
11. Senior Police Officer 4 Sanson “Sonny” Buenaventura

And third, one of the pre-trial judges in the Burundi case is our very own – Raul Pangalangan, former dean of the University of the Philippines College of Law and former publisher of the Philippine Daily Inquirer.

The case of Burundi may have set a precedent on the issue. (Besides, why would presidential spokesman Harry Roque, an expert on International Law, raise the possibility of lawyering for Duterte before the ICC.)

An article written by Kenyan human rights lawyer Darleen Seda for “D+C”, the Development and Cooperation magazine published by the German government, sheds light on the Burundi case.

Seda describes Burundi as an African nation with some 10 million residents (NOTE: two million less than the population of Manila). It had been experiencing “severe violence” since April 2015. “The crisis was triggered when President Pierre Nkurunziza announced that he would run for a third term in office in spite of constitutional term limits,” Seda said.

In May 2015, ICC Prosecutor Fatou Bensouda announced she was conducting a “preliminary examination” on “the situation in Burundi”, where government and state forces were accused of killing over a thousand people following a state crackdown on dissent.

A year after Bensouda’s announcement, Burundi president Pierre Nkurunziza declared that Burundi was withdrawing from the Rome Statute. Therefore the ICC no longer had jurisdiction. His government would also not cooperate with any investigation.

End of story.

Or so Nkurunziza thought.

That did not stop the ICC.

Seda wrote in “D+C” early this year:

“The ICC, which is based in The Hague, disagrees however. It argues that it has jurisdiction over all crimes allegedly committed while Burundi was a member state to the Rome Statute. The ICC view is that, once a state has accepted its jurisdiction, it remains bound for as long as it continues to be a member. Essentially, this jurisdiction runs from the time a state ratifies the Rome Statute to at least one year after a withdrawal notification. The acceptance of such jurisdiction thus remains unaffected even when a state withdraws.”

Seda is right.

A look at the ICC website shows that the Burundi case has now moved to the second stage—from “Preliminary Examinations” to “Situations under Investigation”.

Recall that in May 2015, ICC Prosecutor Bensouda had announced she was conducting a “preliminary examination” of the situation in Burundi and the following year 2016, Burundi announced its withdrawal from the ICC.

On October 25, 2017 — two days before Burundi’s withdrawal took effect — three ICC judges authorized Bensouda “to open proprio motu investigation”. This is the second stage of any ICC investigation.

The ICC explained that while it could no longer investigate any crimes committed after Burundi’s withdrawal, it can investigate crimes that took place starting from December 1, 2004 when Burundi became a signatory member:

“The ICC may therefore exercise its jurisdiction over crimes listed in the Rome Statute committed on the territory of Burundi or by its nationals from 1 December 2004 to 26 October 2017.

In its decision authorising an investigation, the Chamber found a reasonable basis to believe that State agents and groups implementing State policies, together with members of the “Imbonerakure” launched a widespread and systematic attack against the Burundian civilian population.”

The ICC issued a press release in November 2017 further explaining why it did not stop the investigation [boldface is mine]:

Press Release : 9 November 2017 | Ikirundi, Kiswahili

ICC judges authorise opening of an investigation regarding Burundi situation

Today, 9 November 2017, Pre-Trial Chamber III of the International Criminal Court (“ICC” or “Court”), composed of Judges Chang-ho Chung (Presiding Judge), Antoine Kesia-Mbe Mindua and Raul C. Pangalangan, issued a public redacted version of its decision authorising the ICC Prosecutor to open an investigation regarding crimes within the jurisdiction of the Court allegedly committed in Burundi or by nationals of Burundi outside Burundi since 26  April 2015 until 26  October 2017. The Prosecutor is authorised to extend her investigation to crimes which were committed before 26  April 2015 or continue after 26  October 2017 if certain legal requirements are met.

The decision was first issued under seal on 25  October 2017. The Chamber accepted, exceptionally, after ordering the Prosecutor to provide additional information, to conduct the authorisation proceedings under seal and only with the participation of the Prosecutor, in order to attenuate risks to the life and well-being of victims and potential witnesses. The Prosecutor was in addition exceptionally granted a limited delay of 10 working days in notifying the initiation of the investigation to States normally exercising jurisdiction over the alleged crimes in order to prepare and implement protective measures for victims and potential witnesses to mitigate the potential risks.

The Pre-Trial Chamber found that the Court has jurisdiction over crimes allegedly committed while Burundi was a State party to the ICC Rome Statute. Burundi was a State Party from the moment the Rome Statute entered into effect for Burundi (1 December 2004) until the end of the one-year interval since the notification of Burundi’s withdrawal (26 October 2017). The withdrawal became effective on 27  October 2017. Accordingly, the Court retains jurisdiction over any crime within its jurisdiction up to and including 26 October 2017, regardless of Burundi’s withdrawal. As a consequence, the Court may exercise its jurisdiction even after the withdrawal became effective for Burundi as long as the investigation or prosecution relate to the crimes allegedly committed during the time Burundi was a State Party to the Rome Statute. Moreover, Burundi has a duty to cooperate with the Court for the purpose of this investigation since the investigation was authorised on 25 October 2017, prior to the date on which the withdrawal became effective for Burundi. This obligation to cooperate remains in effect for as long as the investigation lasts and encompasses any proceedings resulting from the investigation. Burundi accepted those obligations when ratifying the Rome Statute.

You can read the rest by clicking here.

Now, Bensouda is the same ICC Prosecutor who announced last month (February 8) that she was “opening Preliminary Examinations into the situations in the Philippines and in Venezuela.”

Just like what she did with Burundi.

She said:

“Following a careful, independent and impartial review of a number of communications and reports documenting alleged crimes potentially falling within the jurisdiction of the International Criminal Court (“ICC” or “the Court”), I have decided to open a preliminary examination…”

The preliminary examination of the situation in the Philippines will analyse crimes allegedly committed in this State Party since at least 1 July 2016, in the context of the “war on drugs” campaign launched by the Government of the Philippines. Specifically, it has been alleged that since 1 July 2016, thousands of persons have been killed for reasons related to their alleged involvement in illegal drug use or dealing. While some of such killings have reportedly occurred in the context of clashes between or within gangs, it is alleged that many of the reported incidents involved extra-judicial killings in the course of police anti-drug operations.”

You can listen to her announcement below:

Duterte should have taken the advice of then Foreign Secretary Perfecto Yasay who, back in November 2016, recommended the Philippines withdraw from the ICC.

Yasay had given this advice after ICC Prosecutor Bensouda issued a statement in October 2016 – three months after Duterte assumed the presidency – that her office was closely watching any Philippine official “ordering, requesting, encouraging or contributing” to committing crimes against humanity.

Yasay: Philippines better off withdrawing from ICC

Comments

  1. ‘ x x x the Court retains jurisdiction over any crime within its jurisdiction up to and including 26 October 2017, regardless of Burundi’s withdrawal. x x x x’

    Retaining jurisdiction once a case is filed before ICC is like filed before a local court of a jurisdiction.

    Any rule of withdrawal from membership of a Treaty to escape liability as respondent is nil because a rule is also observed: Suspending the running of a One-Year Period for such withdrawal to take effect.

    Thus, no withdrawal can legally take effect. This is a basic legal rule.

    ‘I did not read the law’ is of no moment.

    Ignorantia juris neminem excusat – ignorance of the law excuses no one.

    Once a criminal case is filed with the investigating office – the PROSECUTOR, the prescriptive period is tolled as held

    in the case of Pp vs. CLEMENTE BAUTISTAm 2007 Phil. SC case, holding:

    – ‘It is a well-settled rule that the filing of the complaint with the fiscals office suspends the running of the prescriptive period.’

    – ‘The prescriptive period remains tolled from the time the complaint was filed with the Office of the Prosecutor until such time that respondent is either convicted or acquitted by the proper court.’

    – ‘As held in People v. Olarte,[7] it is unjust to deprive the injured party of the right to obtain vindication on account of delays that are not under his control. All that the victim of the offense may do on his part to initiate the prosecution is to file the requisite complaint’

    – ‘The constitutional right of the accused to a speedy trial cannot be invoked by the petitioner in the present petition considering that the delay occurred not in the conduct of preliminary investigation or trial in court but in the filing of the Information after the City Prosecutor had approved the recommendation of the investigating prosecutor to file the information.’

    Thus, SC said: [t]he Decision of the Regional Trial Court of Manila in Civil Case No. 02-103990 is hereby REINSTATED.

    . . . unless the cited SC ruling has been changed or abandoned, the rule stands.

    Check it by anyone.

  2. The curious trial of Slobodan Milosevic at the International Criminal Tribunal

    In the midst of the NATO bombing of Yugoslavia in 1999, Serbian President Milosevic was charged with war crimes in connection to the wars in Bosnia, Croatia and Kosovo.

    At the outset of the trial, Milosevic denounced the Tribunal as illegal because it had not been established with the consent of the United Nations General Assembly; therefore he refused to appoint counsel for his defense, and instead Milosevic conducted his own defense in the FIVE-YEAR-LONG trial, which ended without a verdict when Milosevic died of a heart attack in his prison cell in The Hague on 11 March 2006. The Tribunal denied any responsibility for Milosevic’s death, and stated that he had refused to take prescribed medicines and medicated himself instead.

    In February 2007, the Tribunal ruled separately in the Bosnian Genocide Case that there was NO evidence linking Serbia and Milosevic to genocide committed by Bosnian Serbs in the Bosnian war. However, the Court did find that Milosevic and others in Serbia had committed a breach of the Genocide Convention by failing to prevent the genocide from occurring and for not cooperating with the Tribunal in punishing the perpetrators of the genocide, in particular General Ratko Mladic, and for violating its obligation to comply with the provisional measures ordered by the Court

    https://en.wikipedia.org/wiki/Slobodan Milosevic

    • no chance of duterte having heart attack in the hague, aside from fentanyl, he is probly taking chinese herbal medicines as well. no chance of him being depressed too, chinese herbal medicines see to it. though if he wants to end his messy and miserable life – no, china wont allow him. they want him around for the sake of their garrisons in west phil sea. if by accident sawiing palad si duterte, there’s possibility chinese influence in pinas will wane at baka mabaklas pa ang mga pinatayo nila sa west phil sea, pinas flatly refusing to pay chinese loans. tables could will be turned and it’d be china taking pinas to international court for non payment of loan.

      china is on the periphery, monitoring what’s going on with duterte and icc.

      china should not have entered into loans with crazies. it’s not only unethical, but illegal as well. he, he.

  3. <Empathy for our 16 Million Brothers and Sisters

    **
    @Raissa,

    Thank you for your article about the ICC and Duterte’s accountability for his crimes against humanity!

    I’m a bit lazy today and I will just share with CPM a good read about the The Dangerous Rise of Populism.

    https://www.hrw.org/world-report/2017/country-chapters/dangerous-rise-of-populism

    **

    I also would like to appeal not to add insult to injury by calling Dutards idiots. I understand their frustrations being neglected and left behind by Cory Aquino, Ramos, Erap, Gloria, and PNoy in the economic and peace and order fronts.

    That is why I’m critical of any administration which neglects the majority of our voting population- The poor and the impoverished! The wealth and opportunity gaps are so wide that boasting about GDP and improvement in our Philippine economy is adding insult to injury to the 80 percent of our brothers and sisters! Each aspiring candidate uses this huge segment of our population to enable them to access and hold onto power and uses that power to plunder and further plunge the poor to level of desperation.

    Aquino’s improved economy during his term even highlighted that a well-intentioned leader could miserably fail those who he intended to help by implementing western economic policies which only benefit the few and the price of maximizing the enrichment of the few is by taking even the crumbs from the poor.

    I am empathizing with those people call Dutards or Dutae for I’ve have been fighting for them by calling out the abuses of the Oligarchs and the plunderers who are just so happy to use and abuse their infinite patience veering towards stupidity.

    I respect their choice of putting into power Duterte for I know that desperate people have limited choice and for them they tried and gambled on the post Marcos politicians who promised change with compassion to the poor, but for three decades their confidence and ideals are betrayed. The 16 Million gambled on Duterte and it was a dangerous bet but for them they thought they have nothing to lose!

    Unfortunately about 16 thousand of them lost their lives and the rest of them are the first ones who will feel the brunt of Duterte’s TRAIN law. The proverbial ‘Out of the frying pan into the fire’ is really apt on their situation but of course the rest of the 100 million Filipinos suffer with them.

    Again, I plead, don’t rub it in to our duped brothers and sisters. They now realized their experiment has gone wrong and they are now in the second stage of grief: Anger. They were in Denial for the past two years and now accept their mistake. Please do not fault them for their mistake for we have also been committing mistakes since we elected Marcos. They still have to go through Bargaining, Depression and Acceptance and after that they will rejoin the rest of the Filipinos in formulating a new tomorrow!

    Parekoy
    03-16-2018

    • No, that’s the trait of the Filipinos that comes back to haunt them over and over again. Actually, this mistake should be always screamed at them to let them know that they have the power to choose, think, to demand who and what kind of representatives they want to lead them. No more docile attitude in the time of choosing and become proactive in the events in the country. Why engaged and become violent only in times of EDSA revolution and doing street protests IF AND WHEN THEY ARE DISSATISFIED?
      I call on the activists and social media warriors to get up from their chairs and screens to do the job of walking and talking to drum it in their heads that they made mistake and be smarter next time. Praising them for omission is not going to stick it, ITS LIKE A MAN WHO CHEATS, kahit pitpitin mo maraming beses ang balls ay di aamin ng mali, cheating for instance. , di ba , Parekoy?

      Make it right this time for there may not be any freedom to begin with if they don’t change their way of thinking. It is not a trial and error for I believe the people is the government and these politicians are just our employees, it’s your TRAIN TAXES, DUDES, why not take YOUR power back and emphasize that to the poor and uneducated who are usually the ones duped by these treacherous thieves?

      I won’t give them ( the poor and OFWS) any excuses for they have been doing this exercise for many decades of time, any one who worship celebrities, wealth and sweet talking is not worthy of my compassion. One may be poor but one can be rich in wisdom and integrity.That’s the drill…. into their heads.

      • how right you are netty! those 16 millions are not children, they’re adults who ought to know better, but chose to play the fool time and again. they want to be saved, but 1st, they have to save themselves, liberate themselves. they want a champion who will champion their cause, and if a champion comes, they’ll ditch and betray the champion at the 1st opportunity they got, lured by the promises of untold wealth, good jobs and easy living, again!

        if people think like sheep, they’ll be treated like sheep, slaughtered, shorne, and traded. and the govt supposed to protect people are turning butchers na.

        our ofws work hard, and then, some of their families back in pinas waldas the money, spend money while they can for there might not be tomorrow.

        • dutae, dutards, idiots . . . worst words have come out from the president’s mouth and his supports are fist pumping, clapping and giving him standing ovations, so glad.

          to them, anyone who is against duterte is immediately judged a dilawan, to be hounded, bullied, hunted and ridiculed. and in some cases, brought before the court for trump up charges.

        • if ex president aquino is a failure, he’s one failure I can live with.

          his economic policies had not make the lives of the poor better kuno. ay, ganon talaga ang tao, complain ng complain, daing ng daing to anyone who listens, nagpapalimos while standing on a proverbial pot of gold. if they were expecting aquino to knock on their doors, smiling and handing them sacks of money, dream on! lest they wake up alive, not dead shoot at in the middle of the night.

          if you work, you eat. if you dont work, you wont eat adobo. if you complain and complain and not work, you’ll get mouth ulcers! he, he, he.

        • anyhow, I hope parekoy is tama that some of the 16 millions are waking up and coming to terms to what they have done, what they have created and brought about. with awareness comes change.

          change! medyo allergic na po ako sa ‘change’. unchange the change po, he, he, he.

    • Hmm, Parekoy, this is not the same you as before.

      In any case, I will take your advice with much thought.

      Thank you.

  4. Just curious

    What if the crazy old man ignore the investigation? (since he already consider withdrawal from ICC would stop the investigation) and if later (fingers crossed ) that ICC give him the “guilty” verdict and the crazy old to avoid being arrested, does not leave the country?

    anyone?

    • You may read on this case what happens on tried cases already with verdicts and arrests ordered but due to non cooperation of the criminal/country , the suspect/criminal remains at large. The ideal is voluntary surrender or the power of the people would act as the police . I don’t even count on the house of CONGRESS for policing because of its inutile choice and fear.

      Assuming at this stage and point that Dutz has been found to be liable for crimes against humanity, there would be a warrant of arrest ordered for the person and if he and the country failed to voluntarily surrender him/himself, I think the matter is referred to both the UNITED SECURITY COUNCIL and the ASP or Assembly of State Parties for them to decide what appropriate measures to be done. I read there is no statute of limitation as to to the time that the case and the criminal would be tried, meaning ” may forever” lol.

      It would be the greatest wall of shame for the royal blood of Davao to be recorded in the ICC history for the one that got away from the crimes against humanity. For those kind of family, they may just ignore this mark of shame, I just don’t know if it ( responsibility and accountability) would rub on the members of the immediate family.

      This is my non expert way of understanding it.It is nice to learn something everyday than read and hear fake news, isn’t it? Ayaw ko kasing mag-Mochang tanga.

      https://www.icc-cpi.int/darfur/albashir/Documents/albashirEng.pdf

      • For more recent educ. info on the matter ,

        https://www.icc-cpi.int/philippines
        Try these links if above doesn’t work>>

        News
        12 October 2016

        Statement of the Prosecutor of the International Criminal Court, Fatou Bensouda concerning the situation in the Republic of the Philippines
        7 February 2018

        Statement of the Prosecutor of the International Criminal Court, Mrs Fatou Bensouda, on opening Preliminary Examinations into the situations in the Philippines and in Venezuela
        31 October 2013

        Policy Paper on Preliminary Examinations

        • COPING WITH “INTERNATIONAL CRIMINAL” LABEL FOR DUTERTE AND THE 12 THIEVES

          to be considered an international criminal is a fate worsethan a conviction in Philippine courts. It would be a reputation destroying reality globally which no facebook troll army can salvage. Kaya yung Dose at mga kasabawat ni Digong should now have second thoughts, pati sila and their reputations are on the line. If by some luck magtagal si Du30, they cant travel abroad for fear of arrest and once this Duterte govern ment is gone which will be a certainty, the new government will just hand them over to ICC..Pati mga apo apo nila will be cursed by this global reputation…

        • china to the rescue! baka duterte and cohorts can travel to china aboard the chinese president’s jet, and also to north korea, myanmar and other countries friendly to china but hostile to icc. they can all be given diplomatic immunity pass, holding down diplomatic posts.

          to these people, china is the whole world, the only world that matters.

    • The ICC can’t issue any verdict unless the respondents appear in the Court and submitted their counter-affidavits with attached evidence/documents and the like. If the Court finds probable cause, then a warrant of arrest may be issued. The mere findings of the ICC Special Prosecutor may not be enough unless a full- blown investigation is held here in the country with full cooperation from all concerned agencies and witnesses – which is comparable to asking the stars to leave the sky

      The big question is whether PRRD and Co. will appear in The Hague? If in the negative, can the ICC orders the Interpol to arrest the accused when they have not yet established a probable cause in a formal criminal trial?

      In the case of Milosevic, the Federal Police of Serbia extradited him to the Court upon orders of his successor when Milosevic’s presidency collapsed due to continuous public demonstrations against his administration for alleged rampant corruption, etc.

      The ICC is not likely to send a battalion of US Navy Seals or UN peacekeeping force to effect the appearance of the defendants in the ICC headquarters in The Netherlands

      Would the AFP marines or the PNP-SAF turn their back against PRRD when their salaries have just been doubled and their loyalty is believed beyond question

      • sa wari ko po, the military and kapolisan will not turn their backs on duterte but may ask for more pay rise so soon after pay rise been approved. they got him by the hook now, his safety and well being in their hands. and the best duterte can do is to keep on paying them and giving them what they want, thus ensuring their loyalty and cooperation.

        when money runs out, and there’s no more to give, maybe that’ll be the time, military and kapolisan ‘scuttle’ duterte. better his demise at their own hands than a life sentence in the cold dank cell of the hague.

      • Maybe Duterte can appear via

        SKYPE

        Viber

        Facebook

        the ICC, very soon to contact UFO

        get him by UFO radio-active light transfer him to the Hague Court!

        UFOs are watching over us and will come out soon.

        He will be snatched ! he he

    • Walang nadawit na sundalo sa kaso.

      I repeat.

      Walang sundalo – heneral man o pfc – and nakasama sa complaint.

  6. Non members or withdraw:
    China..human rights abuse, no ”free” internet, censorship of news etc.
    Russia: Putin 18 years in power, killing even Russians abroad (Like in UK) Jailing opposition leaders
    South Africa just kicked out President Zuma .,…..
    Burundi: Civil war and genocide against Hutu
    Gambia: The Gambia withdrew from the Commonwealth of Nations on 3 October 2013, with the government stating it had “decided that the Gambia will never be a member of any neo-colonial institution and will never be a party to any institution that represents an extension of colonialism”.[57] Under the new President, The Gambia has begun the process of returning to its status as a Commonwealth republic with the support of the British Government, formally presenting its application to re-join the Commonwealth of Nations to Secretary-General Patricia Scotland on 22 January 2018.

    if you have nothing to hide you don’t leave the ICC

  7. Raissa,

    I want to ask re UNIVERSAL JURISDICTION, where states or intl organizations can claim jurisdiction regardless of where the violations where committed, where the accused is residing, etc.

    Nazi war criminal Adolf Eichmann committed crimes in Eastern Europe, was hiding in Argentina but was tried in Israel (after he was grabbed by the Mossad). Is that universal jurisdiction? Also, all his acts were legal in the eyes of Fascist Germany but not for Israel, so he cannot claim legal cover or immunity?

    Augusto Pinochet of Chile was indicted for human rights violations in Chile, arrested in London and tried by European judges. Universal jurisdiction?

  8. sa palagay ko..mamamatay si digong sas konsimisyon nito. malamang, o-order si digong ng maraming fentanyl para makatulog syang mahimbing….kawawa talaga.