Abu Dhabi, UAEMonday 19 August 2019

By rejecting the principles of international law, Duterte and Pompeo send a dangerous message

The US and the Philippines have readily invoked such conventions in disagreements with their rivals, but neither is willing to submit to their authority

Rodrigo Duterte's war against drugs has come under scrutiny from the ICC, prompting the nation's withdrawal. EPA
Rodrigo Duterte's war against drugs has come under scrutiny from the ICC, prompting the nation's withdrawal. EPA

Two weeks after the US secretary of state Mike Pompeo met Rodrigo Duterte and promised to defend the Philippines' access to international treaties, both have, separately, attacked the idea of international justice.

The Philippines’ president is unhappy that the International Criminal Court, which investigates alleged war crimes, has opened a preliminary investigation into the way his infamous war on drugs has been conducted. On Sunday, Mr Duterte withdrew his country from the Rome Statute, the treaty that established the ICC. Following Burundi in 2017, it is the second nation to ever have done so.

Over the weekend, Mr Pompeo warned that the US would deny visas to members of the ICC investigating possible war crimes committed by US troops in Afghanistan. He threatened further action, including “economic sanctions”.

The two men met in Manila, where Mr Pompeo threatened to use force to defend the Philippines from encroachments by China on its territorial waters.

Both countries have been prepared to invoke international rules and laws in disagreements with their rivals. But when that same legal scrutiny is turned on their own policies, they refuse to abide by due process.

The message from both Manila and Washington this week is that international justice is for other people, not them.

The fundamental problem with threatening the ICC or withdrawing from the Rome Statute in this way is that it suggests to a watching world that justice is for the weak.

In his statements, Mr Pompeo said the ICC, by merely investigating the actions of US troops, was “attacking America's rule of law”.

But that isn't true. What the ICC is investigating are possible war crimes that include torture, rape and sexual violence. These are offences against which the US itself has laws.

If US troops are found to have been involved in any of these crimes, they should face trial. The nation’s authorities should welcome that. Otherwise they will, in effect, be protecting criminals from justice with the shield of military might.

When the US makes threats against the ICC, it undermines the principles of international justice and damages its global institutions. International justice is not perfect. A frequent criticism of the ICC, for example, is that the majority of its investigations have targeted African countries. But international justice was also responsible for indicting the former president of Yugoslavia Slobodan Milosevic on charges of genocide in Bosnia.

International justice

may have its problems, but its absence is

felt more keenly than

its presence

The only way justice works is if it is seen to be blind; if powerful countries are held to account as vigorously as weaker ones. If militarily powerful countries can simply turn away from international law when it suits them, then there is no real justice at all.

The irony of the situation is that Mr Pompeo made precisely that point in Manila just a few days before, when he warned that the US would not allow China to continue its low-level war of attrition in the South China Sea. International law, such as that which guarantees the Philippines access to its territorial waters, applies to everyone, even powerful nations such as China.

It is curious that Mr Duterte is not more understanding of the importance of international standards, given that many of the most interesting cases regarding transnational justice have taken place in his region.

Take, for example, the Extraordinary Chambers in the Courts of Cambodia (ECCC), a hybrid court set up between the government of Cambodia and the United Nations in 2006 to prosecute members of the Khmer Rouge for historic crimes committed between 1975 and 1979.

Last November, the ECCC passed verdicts of genocide against the last two surviving Khmer Rouge leaders for crimes against humanity.

Or look at how the ICC has investigated the mass deportation of the Rohingya Muslim minority from Myanmar from 2017. Last week, it wrapped up a trip to Bangladesh to assess whether alleged forced deportations of Rohingya from Myanmar could constitute war crimes or crimes against humanity.

The ICC’s work is at preliminary examination stage at present. However, a full investigation is only possible because the ICC decided in September that – despite Myanmar not being a signatory to the Rome Statute, it still has jurisdiction in the case because the alleged deportations were to Bangladesh, which is an ICC member state.

International justice may be slow, bloated, and too wrapped up in politics and power, but its absence is felt more keenly than its presence.

Malaysia, in fact, provides an instructive example. For two decades, Kuala Lumpur refused to ratify the Rome Statute, fearing, like Mr Duterte, interference in its national sovereignty – until, in 2014, one of its national airline flights was shot down thousands of miles away over Ukraine.

Had Malaysia been part of the ICC, a minister admitted in November, it would not have missed the “golden opportunity” of getting answers by referring the case of Flight MH17 to it. At the start of this month, Malaysia joined.

Having an international court judge your decisions can seem like an undermining of national sovereignty – until another country attempts to encroach upon those very same boundaries.

By attacking the ICC in the way they did, both the US and the Philippines are ensuring that a world in which great powers are able to openly flout international rules becomes more, not less, likely.

Updated: March 19, 2019 04:19 PM

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