Ethical Framework on the ICC Probe Against Duterte

The conflicts that characterized the twentieth century saw the enactment of some
of the world's most horrific crimes. Regrettably, a great deal of these transgressions of
international law goes unpunished. Upon the adoption of the Convention on the
Prevention and Punishment of the Crime of Genocide in 1948, the United Nations
General Assembly acknowledged the necessity of establishing a permanent
international court to address the types of atrocities that had just taken place.

International criminal law (ICL) has historically faced the dilemma of determining
what it means to ‘commit’ an international crime. Since 2007, the International Criminal
Court (ICC) has opted for the ‘control-over-the-crime’ theory which, as its name
suggests, requires evidence that the accused had controlled the commission of the
crime. This theory also recognizes as principal perpetrators the persons who ‘in spite of
being removed from the scene of the crime, control or mastermind its commission’, by
deciding where and how the crime is committed. Ever since, this rule has become
routinised in ICC practice—not only in judicial decisions, but also in the documents
containing the charges submitted by the prosecutor, which often frame the facts of the
case in line with the requirements of the ‘control-over-the-crime’ theory (Minkova, 2022).
The court has jurisdiction over four categories of crimes under international law:
 genocide, or the intent to destroy in whole or in part a national, ethnic, racial, or
religious group;
 war crimes, or grave breaches of the laws of war, which include the Geneva
Conventions’ prohibitions on torture, the use of child soldiers, and attacks on
civilian targets, such as hospitals or schools;
 crimes against humanity, or violations committed as part of large-scale attacks
against civilian populations, including murder, rape, imprisonment, slavery, and
torture; and
 crimes of aggression, or the use or threat of armed force by a state against the
territorial integrity, sovereignty, or political independence of another state, or
violations of the UN Charter.
The ICC, however, has limited powers, since its function is to complement
countries’ judiciary systems. It prosecutes only in the absence of genuine, independent
legal proceedings, and it neither has its own police force or independent enforcement
mechanisms. The level of success for investigation and prosecution depends on how
cooperative participant countries are (Guzman, 2023).

References:
Klobucista, C. & Ferragamo, M. (2023). The Role of the International Criminal
Courthttps://www.cfr.org/backgrounder/role-international-criminal-court#chapter-title-0-2
Minkova, L. G. (2022). Control over the Theory: Reforming the icc’s Approach to
Establishing Commission Liability?. International Criminal Law Review, 22(3), 510-538.
https://doi.org/10.1163/15718123-bja10129
Guzman, C. (2023). Where the ICC Probe Into Former Philippine President Rodrigo
Duterte’s Drug War Stands. https://time.com/6339873/rodrigo-duterte-drug-war-
international-criminal-court-investigation/

Duterte As A Leader
Duterte’s belligerent actions or outspoken demeanor are reminiscent of historical
heroes who have behaved as people’s liberators. From a Western perspective, such
behavior could be classified as “populism” (Maboloc, 2020). This is a political method
that aims to appeal to regular people who believe that established elite groups ignore
their issues. When supporters of President Duterte are asked why they voted for him,
they frequently reply that he alone is capable of achieving the best possible outcome for
the people. They believe that what matters is the result, which only he can deliver, and
is based on a moral cost-benefit analysis. Students of ethics would immediately
recognize this as utilitarian moral reasoning. This could be attributed to Jeremy
Bentham and John Stuart Mill‟s Utilitarianism, two late 18th- and 19th-century British
philosophers, economists, and political thinkers. The maxim of this philosophy is “The
greatest good for the greatest number”. Duterte argued that the involvement of
politicians, military and police personnel, and ordinary people in the distribution of illegal
drugs facilitates the disintegration of political order. He said that widespread illegal drug
use is to blame for a variety of crimes, acts of social deviance, and other socio-
economic issues like poverty. This explains why Duterte is so gripped in abolishing
traces of illicit drugs, to save the country for the present and future generations (Tangog
& Bayod, 2020).
In utilitarian philosophy, the concept of harm results to punishment. Punishment
has been employed in the legal system to maintain societal order. Simply expressed, it
promotes social justice by punishing wrongdoers in order to alleviate the suffering of
those who have been mistreated. In as similar manner, Duterte thinks that punishing an
offender has ramifications for both the criminal and the society he has injured. To solve
this, it must be consistent with the highest happiness thus the penalty should produce
more “good” than “bad”. The concept of utilitarianism is to minimize damage in order to
enhance happiness. This concept asserts that “activities are right in proportion to the
extent to which they tend to promote happiness, and incorrect in proportion to the extent
to which they tend to generate the opposite of happiness”. Happiness, in other terms, is
pleasure combined with the absence of pain. However, this desire to be happy must not
come at the expense of other people’s happiness, as they, too, have the right to be
happy in the same way that the other person does. As a result, utilitarianism is based on
the pursuit of aggregate pleasure.
Through this philosophy, Duterte’s radical strategies could be understood in the
grounds that the administration believes that sanctioning a wrongdoer not only punishes
the offender, but it also deters future offenses by the same individual or other people
since they are aware of the consequences of their actions. Utilitarians think that justice
is served when the law makes a person aware of the predefined penalty if he does harm
to others. It is “an eye for an eye”, “a tooth for a tooth” premise in some beliefs (Tardi,
2020). If having the offender indicted, convicted, and executed results in a lot more
happiness, then the law is useful since justice is served and applied. This is a more
extreme kind of utilitarianism that goes well beyond liberalism because this can only be
achieve through liberal policies.

References: Maboloc, C. (2020a). Between radical politics and Dutertismo: A reply to

critics. Social Ethics Society Journal of Applied
Philosophy, 5(1), 1-1
Tangog, F.M. & Bayod, R. (2021). Defending Moral Obligation: Duterte‟s Dauntless War
Against Drugs, Philosophy Study, October 2021, Vol. 11, No. 10, 785-796 doi:
10.17265/2159-5313/2021.10.007

Effect on the Filipino People

Human Rights Watch also investigated the killings of adults in which police
showed little to no regard for the safety and welfare of children, often conducting raids in
the middle of the night while the entire family was at home. In many raids, children
witnessed the killing of a parent, or were present while their parent was dragged away
and shot. The harmful consequences for children of Duterte’s
anti-drug campaign go beyond the immediate violence of the raids. Many suffer
psychological distress after witnessing the killing of a loved one. Some children have
had to leave their homes and community, either going into hiding or relocating because
they and their family members feared for their lives.
At school and in their own communities, some experienced bullying because of
the stigma of alleged drug use by a now deceased parent. Human Rights Watch met
one 5-year-old boy who developed aggressive and violent behavior after his father’s
gruesome killing. A number of children have stopped going to school because they no
longer had enough money for transportation, food, and school supplies. The loss of a
parent who is the main breadwinner can plunge an already impoverished family into
even more extreme poverty. Many children are left with no choice but to work, and some
end up homeless and living in the streets, further exposing themselves to danger,
violence, and criminal activity.
The Philippine government, apart from its refusal to effectively and impartially
investigate the killings and its policy of detaining children in conflict with the law, has
done little to address the needs of children directly affected by the anti-drug campaign.
The Department of Social Welfare and Development, the main government agency
responsible for the welfare of children, does not have a specific program directly aimed
at addressing the needs of children affected by the “drug war” (Human Rights Watch,
2020).
References:
Human Rights Watch. (2020). https://www.hrw.org/report/2020/05/27/our-happy-family-
gone/impact-war-drugs-children-philippines