‘Duterte legal aides showing ignorance of ICC rules’ – lawyer
By saying the International Criminal Court (ICC) cannot try President Duterte for the thousands of killings in his brutal war on drugs, the country’s top two legal officers betrayed their ignorance of the Rome Statute, human rights lawyer Neri Colmenares said on Tuesday.
In a statement, Colmenares, a former party-list representative, said the separate claims of Chief Presidential Legal Counsel Salvador Panelo and Justice Secretary Menardo Guevarra that the ICC could not investigate the complaints against the President was “wrong” and had “no legal basis.”
“But their ignorance of ICC rules is understandable, as the Rome Statute is not normally known to lawyers,” said Colmenares, an activist and lecturer on the Rome Statute, the international treaty that underpins the ICC.
No jurisdiction?
Panelo, also the presidential spokesperson, said on Monday that the ICC never acquired jurisdiction over the Philippines because the Rome Statute was not published in the Official Gazette.
The President withdrew the Philippines from the Rome Statute after the ICC prosecutor opened in February 2018 a “preliminary examination” of an information on the drug war killings brought by lawyer Jude Sabio against the Philippine leader.
Another information against the President was brought by a group of lawyers representing the families of the victims of the war on drugs asking the ICC to investigate him for possible crimes against humanity.
Guevarra on Monday said the ICC could not prosecute crimes in a country with a working justice system.
“The ICC cannot exercise its jurisdiction to investigate and prosecute alleged crimes in the country because its own investigative agencies and judicial bodies are functioning,” Guevarra said.
Guevarra’s interpretation of the ICC’s “rule on complementarity” is wrong, Colmenares said.
“The ICC rules do not require that the ICC can only investigate an accused if the courts in his country are unwilling or unable to prosecute him. What the ICC complementarity rules state is that the ICC cannot investigate if the accused is already being investigated or prosecuted in his country,” Colmenares, a senatorial candidate in May’s midterm elections, said.
President Duterte is not being investigated or prosecuted in the Philippines, and the entire justice system is unable to prosecute him because he enjoys presidential immunity, Colmenares said.
Under the same rule, he said, even if a state is prosecuting the accused, the ICC still has the power to investigate if the prosecution is found to be a sham because the state is actually unwilling or unable to “genuinely carry out the investigation or prosecution.”
“Since President Duterte is not being prosecuted here, then his case is admissible [in] the ICC,” Colmenares said.
Neither can the government’s withdrawal of the Philippines from the Rome Statute deprive the ICC jurisdiction, he said.
“The withdrawal issue has been resolved many times — even if the Philippines has withdrawn, the ICC retains jurisdiction under Article 127 of the Rome Statute,” he said.
Under that article, he said, a state shall not be discharged, by reason of its withdrawal, from the obligations arising from the [Rome] Statute while it was a party to the [treaty].
Still no Supreme Court action
The Philippine withdrawal takes effect on March 17, but the Supreme Court has yet to act on petitions seeking to nullify the President’s order to pull out from the ICC.
Six opposition senators and the Philippine Coalition for the International Criminal Court (PCICC) have asked the Supreme Court to declare the order unconstitutional because it does not have Senate approval.
The Supreme Court called oral arguments on the petitions in September and October last year, then gave the petitioners and the Office of the Solicitor General 30 days to submit their final arguments.
During their weekly full-court meeting on Tuesday, the justices did not tackle the ICC petitions.
The petitioners — Senators Francis Pangilinan, Franklin Drilon, Paolo Benigno “Bam” Aquino IV, Antonio Trillanes IV, Risa Hontiveros and Leila de Lima — and the PCICC argued that Malacañang violated Section 21, Article VII of the Constitution by not getting Senate concurrence in the withdrawal from the ICC.
Ratifying body
The Senate is the Philippines’ treaty-ratifying body. Withdrawal from an international treaty also requires Senate approval.
Solicitor General Jose Calida, however, countered that the constitutional provision applies only to the ratification of new treaties.
It does not apply to withdrawal from treaties, he said during oral arguments in October.
Calida also told the justices that the decision to pull out from the ICC involved a political question “and thus not subject to judicial review.”
“What [President Duterte] did was to exercise his constitutional prerogative as the chief architect of the country’s foreign policy,” Calida said. —With a report from Dona Z. Pazzibugan
