Colmenares rejects DOJ opinion, says ICC can try Duterte

MANILA, Philippines — Bayan Muna chairman and Makabayan senatorial bet Neri Colmenares asserted Tuesday that President Rodrigo Duterte can be investigated by the International Criminal Court (ICC), contrary to the statements of Justice Menardo Guevarra and Presidential Spokesperson Salvador Panelo.

The opposition senatorial candidate said the statements of Guevarra and Panelo had no legal basis and stemmed from their “ignorance of the ICC rules” and the Rome Statute.

“The opinion of Sec. Guevarra and Sec. Panelo that Pres. Duterte cannot be investigated by the ICC because Philippine courts are functioning is wrong and has no legal basis. But their ignorance of ICC rules is understandable as the Rome Statute is not normally known to lawyers,” said Colmenares who lectures in the Mandatory Continuing Legal Education (MCLE) for lawyers on the ICC and Rome Statute.

Guevarra reportedly told a daily newspaper that the Court could not investigate nor prosecute Duterte over the alleged extrajudicial killings and human rights abuses under the administration’s drug war.

Panelo, meanwhile, maintained that the Philippines was never under the ICC’s jurisdiction.

READ: Probe vs Duterte, drug war? ICC will violate own provisions – Palace

But Colmenares said the rules state that the ICC could still try an accused even if the courts in his country were 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. Pres. Duterte is not being investigated or prosecuted in the Philippines. In fact, our courts and the entire justice system are unable to prosecute him because he has presidential immunity,” the senatorial contender argued.

He further cited Article 17 Paragraph 1 of the Rome Statute of the ICC that the case is not admissible if the accused is being investigated or prosecuted in his country.

Under the same rule, Colmenares said, even if a State is prosecuting the accused, the ICC would still have the power to investigate if the State was “actually unwilling or unable to genuinely carry out the investigation or prosecution.”

Duterte faces cases of “crimes against humanity” before the Hague-based ICC due to his controversial drug war that has reportedly killed thousands of Filipinos.

Just as the international body started its preliminary examination of the case, Duterte decided to withdraw from the Rome Statute in March 2018.

READ: Duterte does the inevitable, declares PH withdrawal from ICC

But even if the Philippines has withdrawn from the ICC, it retains its jurisdiction over the Philippines under Article 127 of the Rome Statute since the proceedings has started even before the withdrawal, according to Colmenares.

Article 127 states that “A State shall not be discharged, by reason of its withdrawal, from the obligations arising from this Statute while it was a Party to the Statute, including any financial obligations which may have accrued.”

It added: “Its withdrawal shall not affect any cooperation with the Court in connection with criminal investigations and proceedings x x x which were commenced prior to the date on which the withdrawal became effective, nor shall it prejudice in any way the continued consideration of any matter which was already under consideration by the Court prior to the date on which the withdrawal became effective.” /ee