Palace: ICC to start ‘preliminary examination’ into 'crimes against humanity' charges vs Duterte

Dharel Placido, ABS-CBN News

Posted at Feb 08 2018 12:54 PM | Updated as of Sep 03 2018 05:44 AM

MANILA (UPDATE) - Malacañang said Thursday it has received notification that the International Criminal Court (ICC) would start "preliminary examination" into crimes against humanity charges against President Rodrigo Duterte over deaths in his drug war.

Presidential Spokesperson Harry Roque said the ICC has informed the government about initial proceedings on the communication a Filipino lawyer had filed against Duterte and several senior officials in April last year. 

Roque said Duterte has been informed of the development and the chief executive said he would gladly face the ICC himself if the charges against him progressed in the international tribunal.

“The President has said that he also welcomes this preliminary examination because he is sick and tired of being accused of the commission of crimes against humanity,” Roque said in a news conference.

Roque, an international law expert, made the distinction between a preliminary examination and a preliminary investigation, which determines whether or not an accused should be indicted and put to trial. 

He explained that a preliminary examination would only determine if there is basis to conduct a formal investigation into the allegations against the President.

He also clarified there was no case filed against the President before the international tribunal but a mere communication. He said the government welcomes the development as the President would be able to clear his name.

“No one should claim victory… So if they think they have indicted the President, that is so wrong. They wish,” he said.

“Obviously this is intended to embarrass the President but the President is a lawyer. He knows what the procedures are. They will fail.”

‘DRUG WAR AN EXERCISE OF SOVEREIGN POWERS’

Roque also defended Duterte’s drug war from allegations that it is a crime against humanity, saying it is a “valid exercise of sovereign powers.”

“The ongoing war against drug is an exercise of police power in dealing with the pernicious problem of drug trafficking in the Philippines,” Roque said.

“As a sovereign state, the Philippines has the inherent responsibility to protect its current and future generations by effectively addressing threats of the safety and well-being of its citizens such as proliferation of illegal drugs.”

Lawyer Jude Sabio had said in the 77-page communication that Duterte had "repeatedly, unchangingly and continuously" committed crimes against humanity and that under him, killing drug suspects and other criminals has become "best practice" in the pursuit of his drug war.

Sabio represents Edgar Matobato, a confessed hitman who earlier testified in the Senate that he was part of a hit squad in Davao City that operated on Duterte's orders.

"I am elated and vindicated. At last, Mr. Duterte and his cohorts will face preliminary examination by the ICC prosecutor as a prelude to formal criminal investigation," Sabio said in a statement.

It is the first publicly known communication sent to the ICC against Duterte and is based on testimonies of Matobato and retired policeman Arturo Lascañas, who also tagged Duterte in summary killings during his time as Davao City mayor, and on reports from rights groups and the media.

The communication alleges that Duterte and at least 11 senior government officials are liable for murder and calls for an investigation, arrest warrants and a trial.

Duterte has denied the allegations. 

In June 2017, Rep. Gary Alejano and Senator Antonio Trillanes IV also filed a supplemental complaint against Duterte before the ICC.

ICC A ‘COURT OF LAST RESORT’

The ICC has no powers of enforcement, and any non-compliance has to be referred to the United Nations or the court's own oversight and legislative body, the Assembly of States Parties.

Created in 1998 through the United Nations treaty called the Rome Statute, the ICC has jurisdiction over 124 of its members, including the Philippines.

It is the first permanent institution having power to exercise jurisdiction over persons for the most serious crimes of international concerns such as the crime of genocide, crimes against humanity, war crimes and crimes of aggression, and is seen to help end impunity for the perpetrators of these crimes.

The ICC has since received over 12,000 complaints or communications. Nine of these cases have gone to trial and six verdicts have been delivered.

The Philippines signed the Rome Statute on December 28, 2000 and ratified and endorsed it on August 30, 2011, during the time of Duterte’s predecessor, then President Benigno Aquino III.

PH ratifies International Criminal Court Statute [http://news.abs-cbn.com/nation/03/06/11/ph-ratifies-international-criminal-court-statute]

Roque stressed that the Philippines ratified the statute with the condition that the ICC adheres to the principle of complementarity. Under this principle, the ICC must only function as a “court of last resort”, which means it will only act if a state is unable or unwilling to carry out an investigation and prosecution of a crime.

Republic Act No. 9851, or the Philippine Act on Crimes against International Humanitarian Law, Genocide and Other Crimes Against Humanity was signed in December 2009. Upon the Philippines’ ratification of the Rome Statute, Aquino’s Executive Secretary Paquito Ochoa Jr. explained that this law enables the Philippines to prosecute international crimes on its own.

ROQUE: ICC WASTING TIME

Roque said the ICC was just wasting its time and resources by undertaking the preliminary examination, insisting that the Philippines has not exhibited inability or unwillingness to probe allegations against the President.

“Yes we have immunity for our Presidents but they subsist only during their tenure in office. As we have shown the world, two of our past Presidents went to jail immediately after their terms of office,” Roque said, referring to former Presidents Joseph Estrada and Gloria Macapagal-Arroyo.

“I refer to that to show that there is no unwillingness in the Philippines because obviously a President can be prosecuted for any acts committed after his term of office. And that is why it is the position of the President that the case is inadmissible.”

Duterte, who can only be prosecuted and ousted through impeachment proceedings, was slapped with an impeachment complaint in March 2017 by Alejano. This, however, was dismissed by the House of Representatives which is dominated by the President’s allies.

Amid concerns raised by the ICC, Duterte himself had threatened to withdraw the Philippines from the international court just like Russia.

In December last year, speaking during the 16th assembly of state parties to the Rome Statute at the United Nations, Roque said the Philippines would be constrained to reassess its commitment to the ICC and the Rome Statute if the principle of complementarity would be violated.