Acting on a request from Interpol, the Government of the Philippines on March 11 arrested the country’s former president, Rodrigo Duterte, and transferred him, in a matter of hours, to the International Criminal Court located in The Hague, Holland.
This transfer was notable not only for the celerity of the Government’s actions, but also because it provides an extraordinarily rare instance in which local authorities have voluntarily surrendered a former head of government to a foreign court on criminal charges.
RARE SURRENDER
Several factors help to explain why foreign leaders are rarely surrendered to foreign courts. To begin with, local authorities are mindful of their national sovereignty. Even states that do not guard their sovereignty with excessive jealousy are reluctant to surrender leaders to foreign jurisdictions, for, in most countries and, under international law as traditionally understood, jurisdiction over criminal matters is primarily territorial. If the accused is alleged to have committed a crime, then presumably at least, the accused should be tried by the courts in the territory where the alleged crime may have been committed.
The primacy of territoriality in criminal matters appears to be reinforced in some measure by the United Nations Charter, one of the central pillars of the post-World War II international order.
Article 2(7) of the Charter indicates that nothing in the United Nations’ arrangements shall authorise that organisation to intervene in matters “essentially within the domestic jurisdiction of any state”. On the assumption that local crimes are essentially within a state’s jurisdiction, this United Nations rule would tend to keep matters such as Rodrigo Duterte’s alleged criminal acts within the purview the Filipino justice system, and beyond the reach of foreign courts.
ROME STATUTE
This line of thinking – which still retains popular support in several countries – has, however, been weakened by the advent of the International Criminal Court. The International Criminal Court, established by the Rome Statute, a treaty which entered into force in 2002, proceeds on the basis that certain crimes having an international character are to be subject to jurisdiction in both national (territorial) courts and the International Criminal Court.
According to the Rome Statute, therefore, crimes against humanity, war crimes, genocide and aggression may be brought to trial at the International Criminal Court, even as they are within the jurisdiction of local courts. President Duterte, charged with murder as a crime against humanity in relation to extrajudicial killings in the Philippines, may thus be placed on trial.
Some governments may be reluctant to turn over leaders and former leaders to the International Criminal Court for political reasons. Governments may calculate that the surrender of a leader, even an adversary, may open the door to unpredictable ramifications on a tit-for-tat basis. In addition, some governments may well believe that their domestic courts will have a greater appreciation of the legal and the political factors in a given criminal situation than the International Criminal Court may have.
ALIEN COURT
In some situations, too, local leaders may argue that the prospect of an alien institution sitting in judgement over domestic political trauma could jeopardise efforts to bring social peace among the worst factions in the home territory. In the case of the Philippines, for instance, many of Duterte’s supporters maintain that his actions in the “War on Drugs” were politically justified and should not be scrutinised by a foreign court that may not understand nuances on the ground.
But notwithstanding the force of these considerations, there remains a strong case for international scrutiny over certain crimes. Without such scrutiny, leaders may be left to act with impunity, disregarding basic human rights, humanitarian law and core principles of the rule of law in international affairs. This is especially true in countries where dominant political factions control aspects of the justice system. In all likelihood, leaders will act with greater circumspection if the International Criminal Court retains the right to convict and sentence murderers and others who commit heinous wrongs.
VIRTUES
The primary virtue of the International Criminal Court, then, is its capacity to bring wayward leaders and participants in conflict to book. But the court has other virtues as well. With over 120 states accepting its jurisdiction, the court appears to have a substantial base of support. Also, its main rules are based on widely accepted criminal law principles, its procedures for the selection of judges promote independence from political interference, and its operations are subject to oversight by an Assembly of States Parties.
Among the core principles of the court are the presumption of innocence, rules against double jeopardy, non-retroactivity in the application of law, and the right of the accused to confront witnesses. Various procedural rules also promote just and fair trials.
Yet, for all its virtues, the court has operated under a heavy burden of criticism, if not outright hostility. For one thing, some of the most powerful states, including the US, Russia, and China have refrained from participation in the court scheme. for another, the court has often been unable to bring leaders to trial. In recent times, this has been most pronounced in the cases relating to President Putin of Russia and Prime Minister Netanyahu of Israel. Both leaders have rejected charges indicated and have dismissed the court as an irrelevant or outrageous distraction in high matters of state security.
THE UNITED STATES
These Russian and Israeli perspectives are reminiscent of the majority stance of the political class in the US towards the court. At present, the Trump administration has placed sanctions against the court, including the freezing of assets of staff members as well as visa restrictions. Not for the first time, the American Government has registered its deep reservations, if not hostility, towards the court – a position spearheaded by the Republican Party, but shared, in varying degrees, among Biden Democrats.
Some African countries, party to the Rome Statute, have also been among the vocal critics of the court. This is not surprising, for, since its inception, the court has tried and convicted Africans in highly disproportionate numbers – so much so that early cynics sometimes described the court as “”the African Criminal Court”. For various African countries, with or without leaders in the dock, the court’s pattern of charge and accusation harks back to an all too recent colonial past and underlines the continuity of unbalanced imperialism into the present. Although relevant court officials, such as Luis Ocampo, the first court prosecutor, have strongly denied this criticism, the reality is that early accusations of bias cannot easily be ignored.
JAMAICA
What attitude may the Jamaican authorities reasonably take towards the court? on one view, the court is good in theory – as a means of fighting impunity – but bad in practice, for it has failed to bring the truly culpable to justice. And on this view, Jamaica may be well-advised to maintain the country’s wait-and-see attitude: Jamaica signed the Rome Statute over 20 years ago, but, unlike almost all our CARICOM colleagues, has never fully become a party to the treaty. On the other hand, if Jamaica remains outside the treaty regime, other countries may legitimately wonder if we are firmly committed to the international effort to apply the criminal law justly to wayward leaders and followers.
Stephen Vasciannie is professor of international law at UWI, Mona. His most recent publication is Maroon Claims to Sovereignty in Jamaican Territory (2024). Send feedback to columns@gleaenrjm.com
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