Solicitor General Jose Calida claimed President Rodrigo Duterte’s immunity from suit would spare him from any investigation by the International Criminal Court (ICC) or the Commission on Human Rights (CHR). Wrong.
He also accused the CHR of bragging about probing Duterte and disputed the commission’s investigative mandate. Wrong and wrong.
Asked in a Feb. 13 press conference who would represent the government before the ICC should its preliminary examination on drug-related killings move forward, Calida questioned the authority of the international court to investigate the president. He said the 1987 Constitution is “higher than any treaty,” including the Rome Statute that created the ICC.
Calida also invoked the president’s immunity under the Constitution:
“Under our Constitution and buttressed by jurisprudence, the president is immune from suit. If he’s immune from suit under our Constitution, why should another organization, invoking a treaty, will get, like for instance this ICC? Is the treaty higher than our Constitution?”
Source: News5’s Facebook page, Press briefing ni Solicitor General Jose Calida, Feb. 13, 2018, watch from 24:01 to 24:46
ICC Prosecutor Fatou Bensouda confirmed Feb. 8 her office will conduct a preliminary examination of crimes committed in the government’s anti-drug campaign. The ICC “investigates and, where warranted, tries individuals charged with genocide, war crimes, crimes against humanity and the crime of aggression.”
Calida said the ICC “has no jurisdiction because our courts are functioning,” offering as proof a pending case in the Supreme Court contesting the constitutionality of the Oplan Tokhang.
During the press conference, Calida also turned his ire on the CHR:
“And now this CHR, they are bragging that they will do the investigation. Where did it get its authority? Is the CHR a different branch of government? As far as I know there are only three: executive, legislative, judiciary.”
Source: News5’s Facebook page, Press briefing ni Solicitor General Jose Calida, Feb. 13, 2018, watch from 24:51 to 25:12
Duterte’s immunity from suit during his tenure does not stop the ICC from investigating him.
The Rome Statute, to which the Philippines is a signatory, states:
“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.”
While Calida is correct in saying the ICC cannot interfere when local courts are functioning, the Philippines, having been a party to the Rome Statute since 2011, has a “general obligation to cooperate” with the ICC in its investigations.
“States Parties shall, in accordance with the provisions of this Statute, cooperate fully with the Court in its investigation and prosecution of crimes within the jurisdiction of the Court.”
“When we suited up to be a part of the Rome Statute that established the ICC, we agreed to this international legal system of holding international criminals accountable before the world’s first permanent international tribunal,” said lawyer Romel Bagares in an earlier interview with VERA Files.
Calida’s allegation that the CHR had bragged about conducting an investigation on Duterte is also inaccurate.
CHR Chairperson Chito Gascon, following Bensouda’s Feb. 8 announcement, never said his office will investigate Duterte separately from the ICC probe.
A report by Agence France Presse quoted Gascon saying the CHR is willing to extend help if requested by the international tribunal.
"The CHR is ready, if requested, to assist in any way with the process of preliminary examination. The government, as a party to the Rome Statute, is duty-bound to fully cooperate with the ICC.”
(Guided by the code of principles of the International Fact-Checking Network at Poynter, VERA Files tracks the false claims, flip-flops, misleading statements of public officials and figures, and debunks them with factual evidence. Find out more about this initiative.)