Can Duterte be charged with “crimes against humanity” in the International Criminal Court?

The Kenyatta Playbook

Can Duterte be charged with “crimes against humanity” in the International Criminal Court?

If charged, Duterte may have to hand over the presidency to Leni Robredo

- in Opinion
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Kenya’s Uhuru Kenyatta is the first incumbent president to appear at the International Criminal Court (ICC). He was accused of five counts of crimes against humanity. In order to appear in court, Kenyatta had to leave his country and handover powers to his deputy president.

The case was dismissed because of lack of witnesses. If national courts are unable or unwilling to prosecute, the ICC enters the scene. If they push this “crimes against humanity” case against Duterte, one possible way out that Duterte can take is to allow himself to be investigated. But how credible is this scenario given that Duterte himself joked that “he would pardon himself,” and that’s on top of the issue of his immunity from lawsuits?

Duterte, however, doesn’t enjoy immunity at the ICC. Given the massive horrifying international press Duterte is getting, it’s not a farfetched idea that an international campaign ala Kony 2012 will be launched anytime soon against Duterte. Do not underestimate the power of the Pieta picture that appeared on the front page of the New York Times. Remember the picture of that drowned child during the height of Europe’s Syrian refugee crisis? It moved Merkel to act.

Remember: the prosector of the ICC only needs to establish probable cause in order to get a warrant of arrest against Duterte. In her Inquirer interview, De Lima already built the case against Duterte. And it sounds like she’s convinced that Duterte is culpable.

I foresee several scenarios by order of severity (from the best-case to the worst-case scenario):

  1. ICC Prosecutor ignores the situation and decides that the issue isn’t worth of ICC’s time.
  2. ICC Prosecutor investigates, finds no probable cause.
  3. ICC Prosecutor investigates, finds probable cause, gets a warrant of arrest.

If Duterte ignores the warrant, here are three of the most probable consequences:

a) He can’t travel to countries that are parties to the Rome Statute because he might be arrested;

b) International pressure (e.g. diplomatic and economic sanctions); and

c) Worst-case: a coup d’etat sponsored by a country conniving with the political party wanting to remove him from power; and given the animosity between pro and anti-Duterte supporters, this is of course going to lead to a civil war.

If Duterte honors the warrant, he will need to file a leave of absence, and devolve powers to his Vice President, Leni Robredo, just like what Kenyatta did. For how long? We don’t know.

So those who are underestimating the threat to Duterte of the Plan ICC and the Kenyatta Playbook, Think Again. 




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