A nation’s responsibility to humanity

In today’s world, it would be difficult to understand the structure and organization of any given country’s economy without taking into account global economic developments, and the role that country plays within the world economic system.  A country’s ability to steer its economy in the desired direction is, therefore, very much constrained by the dynamics of the world economy.

In contrast, the political and legal systems of society continue to be demarcated along regional lines. While the global nature of the modern economy is a reality, we can hardly speak today of a global government or a global justice system. The defense of this state of affairs is very much the stuff of nationalist thinking.

Any attempt to hold a country’s officials and leaders accountable for crimes against humanity will likely be challenged as interference in the sovereign affairs of a country. Still, the United Nations exists and continues to operate. Innumerable declarations, charters, statutes, and conventions have been passed under its auspices, ostensibly binding member-nations to a set of universal principles and norms.

The reality, however, is that acceptance of these principles and norms is purely voluntary. Amid diversity, the UN survives as the closest thing to a world government only because it allows a wide range of modalities of participation in its affairs.

The United Nations Convention on the Law of the Sea (Unclos), which sets the guiding principles and mechanisms for the settlement of maritime disputes among states, is a good example. For reasons of its own, the United States is not a party to the Unclos, whereas China and the Philippines are. For opting not to be a party to this important covenant, the United States can hardly speak with credibility on matters involving maritime disputes among states.

When the Philippines sued for arbitration of the South China Sea dispute under the terms of the Unclos, China refused to participate in the arbitral proceedings.

Under the Unclos, any state that is a party to the convention may invoke this right. But China’s refusal did not prevent the arbitral tribunal from taking jurisdiction over the case or from promulgating a decision later.

The UN-backed tribunal favored the Philippine claim, but it could not enforce its decision without China’s consent. Thus, until now, China insists on the validity of its “nine-dash” claim over much of the South China Sea and continues to build artificial islands and put up military structures on these. Such is the present state of the world’s legal system.  National sovereignty trumps global legal norms.

This is even more true in those cases where powerful individuals are charged with committing crimes against nationals of their own country.  The world community, in such instances, might feel compelled to step in to administer justice through the permanent International Criminal Court (ICC)—if it is shown that the justice system of that country is unwilling to take cognizance of these crimes, or is unable to investigate them to the fullest extent possible, and render justice.

The main test of admissibility cited is that of “complementarity.”  The Rome Statute creating the International Criminal Court provides that the ICC “shall be a permanent institution and shall have the power to exercise its jurisdiction over persons for the most serious crimes of international concern … and shall be complementary to national criminal jurisdictions.” (It’s worth noting that while the ICC’s jurisdiction is over persons, that of the International Court of Justice or ICJ, the principal judicial organ of the United Nations, is over member-states of the UN.)

Those who expect the ICC to take up anytime soon the responsibility of investigating and prosecuting President Duterte and his officials for the organized summary killings of drug suspects may need to take a second look at the provisions of the Rome Statute. There are very strict provisions governing the admissibility of a case by the ICC. The sequence of actions that the Court may take — from the initial gathering of information to investigation and to prosecution — is governed by norms that clearly defer to the sovereign right of states to investigate and try crimes under their respective legal systems.

Where the ICC has decided to investigate, a formal notification is sent to the concerned state, which may, if it wishes, request the Court to defer to the state’s own justice system. A state or an accused person may challenge the Court’s jurisdiction prior to or even at the commencement of the trial. Indeed, so central is the concept of complementarity to the ICC’s establishment and operation that one has to be a really failed state with nonfunctioning institutions to come under the jurisdiction of the Court.

I can’t see that happening under Mr. Duterte. But, if Solicitor General Jose Calida continues to have his way in refusing to furnish official police reports on the drug killings to the Supreme Court, that, by itself, would be enough to convince the world that, in Duterte Land, the courts are incapable of asserting their independence and doing their work in a credible way.  The ICC Prosecutor may then find a reason to take the first crucial steps toward initiating its own investigation of these killings.

No Filipino can possibly take pride in that. A nation’s responsibility to humanity is, first of all, to render justice to its citizens.