Sorry, Tito Sen, ICC has jurisdiction over Duterte PDF Print E-mail
Sunday, 30 April 2017 14:13

KAKAMPI MO ANG BATAS

BY Atty. BATAS MAURICIO

 

LIFE’S INSPIRATIONS: “… Who is like the wise? Who knows the explanation of things? A person’s wisdom brightens their face and changes its hard

appearance…” (Ecclesiastes 8:1, the Holy Bible).

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SORRY, TITO SEN, ICC HAS JURISDICTION OVER DUTERTE: Pardon my dealing here with the International Criminal Court (ICC) one more time, in connection with the complaint which a Filipino lawyer filed with it last week for supposed crimes against humanity against President Duterte and 11 other officials of his government. I am compelled to react to a statement by Sen. Tito Sotto that ICC has no jurisdiction over Duterte.

The truth is that, yes, the ICC has jurisdiction over President Duterte. Duterte does not enjoy any presidential immunity, if and when the ICC decides to pursue its investigations against him (that is, of course, a big “if and when”, because as I already wrote here, there are big obstacles against ICC investigating Duterte right away).

This jurisdiction to investigate even over a sitting president was granted to the ICC by the so-called Rome Statute, or the international treaty that created it. Art. 27 of that treaty says no immunity attaches to any head of state or government, or any government official or an elected representative. This means, all officials are liable to be investigated, if the grounds are clear.

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ICC IS NOT BOUND BY “PRESIDENTIAL IMMUNITY”: So Sen. Sotto can understand this better, I will reproduce the two sections comprising Art. 27 of the Rome Statute, which are self-explanatory. This is necessary because of the misimpression that his statement—that ICC can have jurisdiction only if a leader or any other citizen of one country will do something against the citizen of another country—may have generated.

Section 1 of Art. 27 says: “This Statute shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a government official shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence.

Section 2 on the other hand says: “Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person…”

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ICC COMPLAINT VS. DUTERTE IS NOT REALLY A COMPLAINT:  Let me hasten to add, however, the finer point of law here which we have been raising earlier—it is not automatic, once a complaint against a leader of a country has been filed with the ICC, that the ICC will immediately conduct an investigation against that leader. The ICC would be barred from investigating if the complaint is already being addressed in the country where it supposedly took place.

What is more, it should also be stressed that a complaint that the ICC will investigate cannot come from just about anyone, like the Filipino lawyer, or his clients. Under Art. 13 of the Rome Statute, the ICC is mandated to investigate a complaint only if was referred by the government of a country itself, or by the Security Council of the United Nations, or by the Prosecutor of the ICC.

Clearly, therefore, the supposed “complaint” of the Filipino lawyer and his clients do not appear to be one of those that the ICC can investigate. At best, that “complaint” could be treated by the ICC only as a mere “information”, nothing more, nothing less. I guess these matters should have been considered first by the Filipino lawyer before he went to the ICC.

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