The Apportionment of Shame: Rodrigo Duterte and the Cosmopolitan Discourse of International Criminal Law
The Global Justice Academy is delighted to launch the second year of its Student Ambassador programme with a guest post by Vivek Bhatt. Vivek is an incoming student reading for a PhD in Law. He recently completed the MSc in Political Theory at the London School of Economics, and holds a Bachelor of Arts (Advanced) (Honours) and Master of International Law from the University of Sydney. His primary interest is in international laws relating to counterterrorism, conflict, and human rights.
Rodrigo Duterte’s war on drugs in the Philippines has recently been deemed an international crime. This post reflects upon issues arising from the condemnation of Duterte, asking whether international criminal law can enable the realisation of cosmopolitan ideals.
When elected President of the Philippines on 9 May 2016, Rodrigo Duterte vowed to reduce rates of drug-related crime within the state. Duterte has since waged a violent anti-drug campaign, authorising the extra-judicial execution of individuals thought to use, possess, or traffic illegal substances. The President’s “death squad” comprises select members of the police force and civilian volunteers. Most of these individuals were lured into their roles as amateur mercenaries through payment, and promises of impunity for their actions. Others were coerced into joining Duterte’s campaign; men and women were guaranteed immunity from punishment for their own drug-related offences in exchange for their services as assassins. The OHCHR suggests that over 850 people have been killed since Duterte’s election, but reports that take into account unexplained deaths during that period suggest the number is closer to 3,000.
Agnes Callamard – the UN Special Rapporteur on Extrajudicial, Summary, or Arbitrary Executions – argues that Duterte’s directive is “effectively a license to kill,” and a crime before international law. The Special Rapporteur’s statement most likely refers to the crime against humanity of murder. Crimes against humanity are defined in the Rome Statute, which established the International Criminal Court (“ICC”). They are “acts committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.” Furthermore, these attacks must occur multiple times, and be “pursuant to or in furtherance of a State or organisational policy to commit such an attack.” Were Duterte indicted, the outcome of his trial would likely turn on the question of whether the killings can be considered part of a “State or organisational policy.” Duterte officially denies – but refuses to condemn – the murders, a stance that may lend credence to the argument that they are not a part of the government or police force’s policy.
Regardless of the chances of Duterte’s prosecution, the condemnation of his acts as international crimes highlights two important aspects of international criminal law. Firstly, Duterte’s actions are not inter-national in nature; they are unrelated to the Philippines’ treatment of other states, or foreign nationals. Rather, Duterte’s incitement of murder is considered an international crime because participants in the international legal system commonly view such actions as wrongful. Secondly, through his characterisation as an international criminal, Duterte is positioned as an autonomous agent; he holds legal duties as an individual, distinguishable from the duties of the state of the Philippines. Here, international criminal law breaks with the traditional construction of the state as principal agent and subject of international law. We should, therefore, ask what kind of justice international criminal law aims to achieve. It is clearly not a project for interstate justice, and nor can it be thought of as a form of criminal justice; international criminal law does not attempt to secure public order, or to reform offenders. Rather, it focuses upon prominent and reputedly tyrannical individuals, challenging their claims to authority by stigmatising them as perpetrators of the highest order of crimes.
An ideal theorist may, therefore, see international criminal law as an engagement with the cosmopolitan project. Cosmopolitanism is a popular theoretical approach to the topics of global justice and democracy. Most famously articulated by Immanuel Kant in his essay on perpetual peace, cosmopolitanism is a vision of a world in which individuals – and not states – are citizens of the global order. One prominent contemporary exponent of cosmopolitanism is Jürgen Habermas, who reconstructs Kant’s concept of perpetual peace within a twenty-first century context. Habermas calls for a world order that will unite all people in a legal peace. States would cede some sovereignty to a higher legal authority in order to “promote” their citizens to the status of “world citizens.” In the cosmopolitan order, law would “completely permeate and transform political power.” The increasing prominence of individuals would end the primacy of state sovereignty, meaning that law would replace politics in the conduct of international relations. This would result in the achievement of Kant’s alluring but elusive goals: the absence of violent conflict, and the interrelated guarantee of human rights.
In his 2015 paper, ‘What Kind of Global Justice is “International Criminal Justice”?’, Frédéric Mégret explores (but ultimately dismisses) the idea of international criminal law as cosmopolitan justice. Mégret’s cosmopolitan conceptualisation of international criminal law begins with the suggestion that although it was constituted by states, the law is “no longer truly for the benefit of those states.” Instead, international criminal laws have “produced their own rationality,” becoming a vehicle for the “realisation of universal values.” Today, these “values” are most prominently expressed in the form of international human rights law. Like international human rights instruments, the ICC’s jurisprudence has long been associated with the promotion of human dignity. Yet in contrast to international human rights law – and most other international legal regimes – international criminal law imposes legal obligations directly upon individuals. This attempt to minimise the importance of state sovereignty is, according to Mégret, characteristic of the cosmopolitan project.
To Mégret, the cosmopolitanism of international criminal law is merely rhetorical. International criminal law “hyperbolises individual agency,”  presenting itself as a project that brings those most responsible for widespread crimes to justice. Yet in reality, resource deficiencies and the persisting primacy of state sovereignty place several limits upon the law’s capacity to achieve cosmopolitan justice. Firstly, the ICC cannot indict an individual unless his or her national state has assented to the Court’s jurisdiction by signing the Rome Statute. Secondly, the Court lacks the resources to indict all those responsible for war crimes. The decision to indict is thus made by prosecutors, who may act upon personal preference or political pressure. Those who are not brought before the ICC often remain in power, and continue taking actions that constitute international crimes. Serving heads of state such as Duterte are unlikely to be punished within domestic criminal systems, and are immune ratione personae from foreign states’ exercise of universal criminal jurisdiction. Thus, while international criminal law gives rise to cosmopolitan rhetoric (such as Callamard’s criticism of Duterte), its function is limited by both politics and legal tradition. What results, says Mégret, is a legal regime that focuses almost exclusively on the African continent, producing global distributive injustice by shaming African heads of state, and the communities they lead.
Though based upon accurate observations, Mégret’s dismissal of the idea that international criminal law may achieve cosmopolitan justice is somewhat hasty. To Mégret, the cosmopolitan aspect of international criminal law is that individuals are treated as wrongdoers. However, Mégret fails to acknowledge that all criminal law – domestic and international – relates to both wrongdoers and their victims. Instead of viewing a leader’s indictment as the shaming of an entire community, we might see it as the characterisation of that entire community as a victim. Whether deliberate or the result of legal constraints, the function of international criminal law reifies popular Western and European narratives of African victimhood and susceptibility to tyranny. This is indeed global distributive injustice, but of a different form to that outlined by Mégret. The emphasis on certain parts of the world turns international criminal law into an attempt to rescue particularly “weak” or helpless communities, not a law of global citizens. As tragic as they may be, current affairs in the Philippines present an opportunity for international criminal law to act as a cosmopolitan law that addresses the wrongs suffered by all individuals and communities, regardless of whether it plays into popular myths about victimhood and messianism. Duterte’s indictment, should it ever occur, would provide hope that the law can indeed contribute to the realisation of cosmopolitan ideals.
 British Broadcasting Corporation, Philippines Drugs War: The Woman who Kills Dealers for a Living (26 August 2016) BBC < http://www.bbc.co.uk/news/world-asia-37515642>.
 British Broadcasting Corporation, Jewish Leaders React to Rodrigo Duterte Holocaust Remarks (30 September 2016) BBC < http://www.bbc.co.uk/news/world-asia-37515642>.
 Quoted in UN Office of the High Commissioner for Human Rights, UN Experts Urge the Philippines to Stop Unlawful Killings of People Suspected of Drug-Related Offences (18 August 2016) OHCHR < http://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=20388&LangID=E>.
 Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 90 (entered into force 1 July 2002) art 7(1)(a).
 Ibid art 7(1) [emphasis added].
 Ibid art 7(2)(a).
 Immanuel Kant, Perpetual Peace: A Philosophical Essay (M Campbell Smith trans, George Allen and Unwin, 1917).
 Jürgen Habermas, ‘Does the Constitutionalisation of International Law Still Have a Chance?’ in Jürgen Habermas, The Divided West (Polity Press, 2006) 115, 118.
 Ibid 124.
 Frédéric Mégret, ‘What Sort of Global Justice is “International Criminal Justice”?’ (2015) 13 Journal of International Criminal Justice 77.
 Mégret, above n 6, 85.
 Ibid 86.
 Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v Belgium) (Judgment)  ICJ Rep 3, 71.
 Mégret, above n 10, 99.