The Mark of Cain

Font Size
Greg B. Macabenta

Ad Lib

The government of President Rodrigo Duterte continues to rail againstthe United Nations Human Rights Council (UNHRC) and the International Criminal Court (ICC), which have been accusing Pres. Duterte of human rights violations in connection with his campaign to eliminate the drug menace in the Philippines.

According to officials of the two international bodies, Pres. Duterte, his police enforcers, and alleged vigilantes have, instead, eliminated thousands of small-time drug pushers and users, in the process killing civilians, including children, “extra-judicially” or outside the law.

Pres. Duterte’s response has been to withdraw the Philippines from the ICC, in effect saying that he and the country are now outside the jurisdiction of the court.

This time, Pres. Duterte is threatening to pull out of the UNHRC in the wake of a resolution initiated by Iceland to seek a review of allegations of Pres. Duterte’s human rights violations.

Expectedly, the Pres. Duterte government has described the resolution as an “abuse” of due process. Presidential spokesman Salvador Panelo has pointed out that only 18 countries voted in favor of the resolution, while 14 objected and 15 abstained.


Executive secretary Salvador Medialdea declared that “a minority has short-circuited and rendered inutile the time-honored mechanisms by which the UN maintains the accountability of member-states, such as the treaty body system and the UNHRC’s Universal Periodic Review.”

Last March, the Philippines also declined to ratify the Rome Statute, the treaty that formed the ICC, due to the court’s decision to conduct a preliminary examination of Pres. Duterte’s drug war.

The Pres. Duterte government maintains that the ICC does not have any jurisdiction over the Philippines “because the Rome Statute was not published in the government’s official publication.” On the other hand, the ICC insists that the withdrawal of the Philippines does not relieve the country of its obligation to cooperate with the investigation.

Whether or not this polemic exchange will result in retribution on the part of Pres. Duterte and Philippine government officials, or whether this has simply been a way for the busybodies in the ICC to reassure themselves that they are doing the job is the question.

Conflicting arguments have been thrown into the cauldron, the primary one being that“immunity from prosecutionis a doctrine of international law that allows an accused (specifically a head of state or high-ranking official) to avoid prosecution for criminal offences. Immunities are of two types. The first isfunctional immunity, or immunityratione materiae.This is an immunity granted to people who perform certain functions of state. The second ispersonal immunity, or immunityratione personae. This is an immunity granted to certain officials because of the office they hold, rather than in relation to the act they have committed.”

Here’s more:

“The Vienna Convention on Diplomatic Relations codifies essentially every country in the world promising not to do this kind of thing. This protection is extended not just to heads of state, but to all diplomats their staff and their families. It is commonly calleddiplomatic immunity.

“Of course international law is only as powerful as nations allow it to be, so if a leading nation like the US or China abused a less globally active one like Somalia or Papua New Guinea there wouldn’t be expected to be any direct meaningful repercussions.”

This happened in the case of Panama’s Manuel Noriega, although the circumstances were slightly different. The US arrested Noriega right in his own country for racketeering, drug smuggling and money laundering and he was thrown in federal prison.

But one significant insight concerns former Chile strongman Augusto Pinoche. The dictator, accused of the death and disappearance of thousands during his reign, was arrested in England in 1998 based on a warrant issued by a Spanish judge charging Mr. Pinoche with human rights abuses.

The indictment and arrest were based on existing Spanish and English laws that had been enacted to embody international treaty obligations.

According to international media, they were based on“a landmark decision by European judges and the UK’sHouse of Lords, which set aside functional as well as local immunities,by ruling that the crimes Mr. Pinoche was accused of fell within the scope of theUnited Nations Convention against Torture, beinginternational crimesso heinous that they are:

• subject to universal jurisdiction;

• absolutely prohibited (there can be no exceptions whatever to the prohibitions); and,

• responsibility cannot be derogated (no excuses whatsoever or immunity under any circumstances).

“The principle of depriving immunity for international crimes was developed further in the jurisprudence of the International Criminal Tribunal for the Former Yugoslavia, particularly in theKaradzic,Milosevic, andFurundzijacases.”

These three were East European strongmen who had committed heinous crimes in their countries and were indicted by international courts

What may give Pres. Duterte reason to worry is that both Spain and the UK voted in favor of the Iceland-initiated resolution.

There is another perspective on the issue, which is that enforcement depends not only on international treaties and domestic law, but also on the inclination of the indicting and arresting country to do so or to desist, for its own reasons.

An English court decided that a warrant could not be issued for the arrest of Robert Mugabeof Zimbabwe for international crimes because he was head of state at the time that the proceedings were initiated. Other examples of refusal to prosecute by Spain and the US, respectively, involved Cuba’s Fidel Castro and China’sJiang Zemin.

In one interesting social media exchange, someone posted: “Well,if the prime minister of Papua New Guinea (PNG) came to visit the US and the US arrested him and threw him in jail, it’s surely true that PNG would be in no position to declare war or anything like that. But there would surely be a huge international outcry. Even countries that didn’t like the PM of PNG would probably be very concerned about the precedent. It might, I suppose, depend on just WHY the US arrested him.”

Foreign Secretary Teddy Boy Locsin has used the US as an example for ignoring the UNHRC. The US is said to have protested the bias of the UN body against Israel while saying nothing about Iran and North Korea.

In 2007, France refused demands of international quarters to indict former US Secretary of Defense Donald Rumsfeld for torture and other alleged crimes committed in the course of the US invasion of Iraq. Similar demands were made against US Secretary of State Henry Kissinger.

Does that mean that Pres. Duterte is “safe” from prosecution after (or even during) his term, or does he has to watch his back while on a foreign trip?

Does he or does he not have the Mark of Cain on him?

Who knows?

One thing is certain, US federal court judges don’t seem to care about State Department or White House foreign policy. Remember how a Honolulu judge decided against the Marcos government for human rights violations in the Philippines?

Of course, one basis was that the Marcoses had fallen within the court’s jurisdiction by fleeing to Hawaii instead of Paoay. But then, what about the Philippine politicians (circa Pres. Duterte, Aquino, Arroyo, Estrada, etc.) who have assets in America?

I would worry if I were in their shoes.


Greg B. Macabenta is an advertising and communications man shuttling between San Francisco and Manila and providing unique insights on issues from both perspectives.