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[The Slingshot] The ICC fallacies of Bato dela Rosa

Mar 22, 2023

Antonio J. Montalvan II

‘Threatening ICC investigators who will come into the country is an exercise in both ignorance and clutching at straws’

For a lawmaker elected to the branch of government that ratifies international treaties, Bato dela Rosa makes an interesting subject – for his gross ignorance. Either that or he is faking boldness to hide his trembling fears of being prosecuted for crimes against humanity and becoming the scorn of the world.

It is time to fact-check his delusions. After all, he was elected on the strength of troll-generated populism that catapulted him into a world of his fantasy – at our expense.

His outlandish statement on Vladimir Putin’s arrest warrant from the International Criminal Court: “So, who will make the arrest? If other forces of another nationality will enter, that will result in war.”

There will be no world war if Putin is arrested. Many countries will just be too happy to see the bully of Moscow get prosecuted and tried for his war crimes in Ukraine. World sympathy is not on Russia but on Ukraine. As for World War III to erupt if Rodrigo Duterte is arrested, Dela Rosa can try looking up what the German word realpolitik means.

Initially, Putin’s arrest warrant will curtail his movements. There will only be very few countries he can actually visit. For example, he can visit non-ICC member countries like China, India, or in principle the United States. But the US has in place the Global Magnitsky Act of 2016 that can sanction foreign government officials worldwide who are human rights offenders, freeze their assets, and ban them from entering the US. Dela Rosa can still recall the cancellation of his US visa in 2020. It was later restored, but did he get the message? That was a fair warning for him once he becomes a fugitive of international law.

International law appears to be alien to the senator, particularly the mechanisms in place in the ICC. He can tremble in fear at what the European Union can do. In 2006 and 2011, the EU entered into agreements with the ICC. Through the power of negotiations and dialogues with other countries, the EU and its member countries have been promoting universal support for the Rome Statute that created the ICC.

Among the ICC’s operations that the EU and EU countries have committed to is to “take to ensure full cooperation of non-EU countries with the ICC, including the prompt execution of arrest warrants.” In other words, the EU and its member countries can prod another state, which may be or may not be a member of the ICC, to execute the ICC’s arrest warrant. Take note that the EU has tremendous clout through trade and diplomacy. That is a menacing scenario for one like Dela Rosa even if he travels to non-ICC countries. Perhaps the only countries he can travel to would be China and Russia. That goes as well for Rodrigo Duterte. The 123 member countries can certainly execute the arrest. It will be a very tightened world for anyone wanted by the ICC.

There is also another approach for the ICC to execute an arrest. It can elevate the matter to the United Nations Security Council. In which case, the duty to cooperate binds the relevant UN Member States, regardless of whether or not they are a state party to the Rome Statute. This approach was done before in the case of Darfur (Sudan) and Libya.

Somebody lecture Bato that in 2009, the Philippines signed into law Republic Act 9851: An Act Defining and Penalizing Crimes Against International Humanitarian Law, Genocide, and Other Crimes Against Humanity. Section 11 on Non-Prescripton reads: “The crimes defined and penalized under this Act, their prosecution, and the execution of sentences imposed on their account, shall not be subject to any prescription.”

Non-prescription is the same rule that applies to international courts like the ICC. The Filipino international law professor Romel Bagares explains that the crimes of today can still be prosecuted 20, 30, or 50 years from now as long as the perpetrators are alive. Take note that Nazi war criminals have been arrested, prosecuted, and sentenced even if they were already in their advanced age. Bato, Duterte, and their co-perpetrators like Vitaliano Aguirre can still be arrested in the future. The ICC’s information protocol states it best: “Warrants of arrest are lifetime orders and therefore individuals still at large will sooner or later face the Court.”

And then there is the distinct possibility that not all future Philippine governments will be sympathetic to Duterte and those charged before the ICC. For that the prime example is the Serbian dictator and butcher Slobodan Milosevic. When he fell from power, the succeeding Serbian government arrested him. The US government pressured the new government to extradite Milosevic to the International Criminal Tribunal for the Former Yugoslavia (ICTY) that tried crimes against humanity in Kosovo. Milosevic, like Duterte, was a protégé of China (the Chinese Communist Party considered him and his wife as allies) and Russia, which provided political asylum for him, his wife, and children. These situations echo Duterte’s. Yet, international humanitarian law prevailed. Milosevic was indicted and tried in The Hague.

Dela Rosa has repeatedly said that he and Duterte will not cooperate with the ICC. He said the current Marcos government would not allow ICC investigators into the country. That is a fallacy. The ICC can conduct cross-examination of witnesses in another country. It can also document witness testimonies through teleconferencing. Threatening ICC investigators who will come into the country is an exercise in both ignorance and clutching at straws.

They must also shudder at the thought that major Davao Death Squad players are now in The Hague, possibly granted asylum or at the very least some protection by the ICC. The ICC itself has mentioned the name of Duterte hitman Arturo Lascañas as having been accorded limited immunity, meaning he has access to the ICC’s witness protection program.

If one is an elected senator of the land but has no sense of accountability either because of self-preservation or false pride, one has no business making laws. Bato dela Rosa’s business is at Scheveningen Prison in The Hague. The likes of him and Duterte belong only to rogue states. – Rappler.com

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