When I’m not editing, I research the Manila Galleon trade across the Pacific Ocean.

I’m also interested in

a more historical (and non-partisan) perspective on drug abuse in Southeast Asia: the centuries-old
Chinese opium trade; the Japanese origins and evolution of methamphetamine abuse; the aggravating
factors of rapid urbanization and globalization; and the economic and cultural ecology of how which
illegal drugs are produced, trafficked, and distributed across Southeast Asia, which very much
resembles, by the way, the features of a “fast-moving consumer good” and might be one reason why
there is a low psychological barrier to its initial abuse.

WHY THE INTERNATIONAL CRIMINAL COURT HAS NO AUTHORITY IN THE PHILIPPINES

As shown below, there are specific reasons why the International Criminal Court cannot investigate or
prosecute anyone in the Philippines over the war on drugs.

By way of introduction, I taught International Law and related courses at the university level for over a
decade: in Texas, also with US military education programs on bases in Japan and S. Korea, and most
recently with an American Center at Sichuan University in China (Ph.D. in Political Science, UW in
Seattle).

I’ve lived and worked in Haiti (during the revolution), Bosnia (briefly after the war), and the Mexican
border. I have two Mexican-American teenage children – and I’m originally from Washington DC but my
family did move a lot because my father was in the US Foreign Service.

Coincidentally, I’ve been in Manila for 11 months as an academic editor, with another month or so to go.
I’ve been exposed to an extremely wide variety of people here, the full spectrum, and so my local insight
is first-hand.

I have an emotional connection to the Philippines. Of course, I love it as a country. I’m convinced that
one of the most admirable of human traits – empathy –is stronger and more prevalent in the Philippines
than anywhere else, a legacy of its early culture. In addition to that, this country has been significantly
influenced by Chinese and Islamic civilization, Spain, the United States, Japan, and now the world, with
many workers coming and going. This complexity and pluralism is especially visible in Manila.

Being here is fascinating and brings me close to the spirit of my father who passed away in 2016. Those
of you in the Philippines who are in your 50s or older remember him – Ambassador Stephen Bosworth,
who served (1984-1987) during the People Power revolution, across the divide between the Marcos and
Aquino eras.

What follows below is not actually about national anti-drug policy. What’s right for the US may not be
right for the Philippines. I spent a decade in Mexico, where it was also illegal (understandably) for
foreigners to run around the country and engage in anything partisan or overtly political.

The ICC is intent on conducting an investigation, which theoretically could lead to the potential
prosecution of top government officials in the Philippines. Why? The allegations are that those leaders
have led an anti-drug campaign resulting in the extra-judicial killings of suspected drug dealers.
Bystanders have also been caught in the crossfire. But even if those killings were extra-judicial, that does
not alone give the ICC an opportunity to prosecute. There is a technical explanation for this.

ONE. The ICC prosecutes as a court of last resort, when a country’s judicial system is in shambles or
makes a mockery of justice. According to the ICC’s own webpage, in its own words, “it prosecutes cases
only when States do not are unwilling or unable to do so genuinely.”

Well, that certainly does not apply here because the Philippines has an independent and functional
judicial system. In April of 2019, the Supreme Court ruled against President Duterte in a case involving
police records and related documents. The Supreme Court countered the claim, made by the executive
branch, that the papers fell under “national security” and ordered their release, adding that the war on
drugs is not comparable to matters such as invasion, insurrection, or terrorism. The Supreme Court even
used the word “ridiculous” to describe the Solicitor General’s claim.

Does that sound like a puppet Supreme Court? No it does not. In fact, this Supreme Court in Manila has
ruled against the interests of several presidents going back to 1987, in a similar case related to
documents.

The Supreme Court here in the Philippines, it seems, interprets the Constitution as best it can and
follows order from no one. Why should it? They watch presidents come and go. I doubt that any
president since 1986 has even thought to issue such orders. The Supreme Court in the Philippines is
autonomous. That is quite rare in what academics often call a “new democracy.”

It’s interesting that in losing the April 2019 battle with the Supreme Court, President Duterte won the
larger war with the ICC, taking away its raison d'être. It’s impossible now for the ICC to claim that the
Philippines lacks an independent judicial system.

TWO. The ICC, according to the Rome Statute, only prosecutes genocide, crimes against humanity and
war crimes. Even if some police had quick trigger fingers, and even if some of the incidents violated local
or national law, nothing about the war on drugs reaches the level of genocide, crimes against humanity,
or war crimes.

Let’s remember that the entire ICC setup came after Bosnia and Rwanda, which made people remember
WWII. So the focus, was on crimes against a civilian population because of ethnicity, religion, or identity
– and not against individual behavior here and there which, moreover, many people would describe as
criminal behavior.

You may disagree with the Philippine government’s crackdown, but it is certainly a stretch to place, into
the same category of victims, these two types:

1) unarmed women and children in some village somewhere, say in the Sudan, who become targets
because they are part of an ethnic group

2) individual drug dealers in the Philippines, many of them armed, and all of whom have been
repeatedly warned publicly (and by local Barangay, a neighborhood type of police that act as
intermediaries between civilians and more heavily armed police).

Again, it does not matter what one thinks about the war on drugs here. To place those two types of
people into the same category of victims is simply wrong.
The Rome Statute, which empowers the ICC, is saturated with references to group identity, to what it
calls “the identity of the group or collectivity,” and considerations that fall under things “political, racial,
national, ethnic, cultural, religious, gender.”

Theoretically, the ICC could prosecute for “murder,” but only under the condition of it being
“widespread or systematic.” But the war on drugs is neither widespread nor systematic. Police
operations tend to focus on problem neighborhoods. Raids and buy-bust operations are sporadic and
even unscheduled. Often, the police react to last-minute tips. Sometimes, things are relatively quiet for
weeks and then incidents flare up.

None of this bears any resemblance to the classic idea of a war against a “civilian population” (which is a
bit of a stretch, in that what gains police attention is an individual’s illegal behavior, not the identity of a
larger group).

THREE: Universal jurisdiction, as claimed by the ICC, appears to be a rather empty concept if three of the
five permanent members of the UN Security Council have rejected the ICC in no uncertain terms: China,
Russia, and the United States. So, what’s so “universal” about that? It reminds me of what a Chinese
official stated when I was working there, when China was trying to prevent NATO involvement in Syria.
China said this: “there is no ‘international community.’” Guess what? If China as the world’s most
populous nation says there is no international community then there isn’t any.

FOUR: The Philippines has pulled out of the Rome Statute, which renders null and void ICC authority
here.

FIVE: Well, this is not really about the ICC, but it matters. China would never allow a prosecution against
top officials here in the Philippines. It would block that move, considering to be a bad precedent. It was
one thing in war-torn Cambodia, but that is different. That was then and this is now. The US, similarly,
would not back such a move, and the US did not join the 18 countries at the UN (mostly European) who
voted for an investigation. The US – much like the Supreme Court in the Philippines, actually – considers
drug policy and its enforcement to be purely national concerns.

Conclusion

Whether you agree with the drug war or not, it certainly seems that President Duterte’s government is
not vulnerable to ICC prosecution. It has international law on its side. It has the support of China and the
US.

President Duterte, along with the Philippines government, has a popularity level with the general public
that western leaders only dream about and have not seen since the days of Eisenhower and Kennedy.

That level of approval or support is high, over 80%, and the remaining 20% are mostly apathetic.
Probably less than 5% of the public is opposed: the Catholic clergy, along with part of the medical and
legal communities, some in the more elite universities, and the ngos.

The medical community did succeed in its lobbying efforts to modifying drug policy here, which now
includes more consideration to harm reduction and evidence-based research, but overall the opposition
lost the political “drug war” battle – as demonstrated in the mid-term elections. One reason the
opposition lost the war of public opinion is because it did not embed its arguments in purely national
terms and instead reached out to the “international community.”
This country, the Philippines, spent centuries fighting the Spanish. Then it fought the Americans (briefly)
and the Japanese (allied with the Americans, which is one reason, I think, for the mutual affinity, along
with the fact that US administration ended voluntarily.

In some ways, the opposition can be seen as following a policy that I have personally described as “flying
around the world, to New York, Washington, London, Geneva, and Roma, “begging foreign powers to
intervene in the Philippines.”

Given the nationalism and history of the Philippines, that neo-colonial agenda is a recipe for political
suicide. But the opposition went and did it anyway.

They forget that the Republic Act 9165 made it the law, and a matter of state policy, that the drug laws
needed to be enforced. In fact, that law is so clear and strict that upon reading it, I sensed that any
national government not enforcing the law would be in violation of that Act. It’s a matter for the three
branches of government here and their constituents, the people of the Philippines. No one else.

"They didn't need a revolution to kick us out," as my father said, referring to the early 20th century and
the end of the American era. As Ambassador here in the 80s, had so much faith in this country and its
people that I really doubt he'd favor an ICC investigation - a step backward. He'd have more faith in 105
million Filipinos, I think, than in some newfangled court in Holland. Why do I say that?

Because in the arc of his life, from a Michigan farm through three ambassadorships to negotiating with
North Korea, his proudest moment was in 1986 when, somewhat paradoxically, he did as little as
possible – not easy when people in DC were pulling him in both directions at once, right up until the very
end.

He did just what was necessary or prudent, to limit the chance of any violence. Some people
erroneously imagined he intervened in somehow, but that’s not accurate. He recognized that whatever
was going to happen in the Philippines was going to be the outcome of a national dynamic. There were
too many people on the streets to argue otherwise. And those of us old enough to remember, events
just kind of took on a life of their own.

And so my father watched the Philippines outgrow both an autocratic system, becoming a democracy,
and he also watched it outgrow its then-imbalanced relationship with the US, becoming fully sovereign,
with no permanent foreign bases on its soil.

I’m confident he woule