JURIST Guest Columnist Perfecto Caparas of the Indiana University Robert H. McKinney School of Law discusses how Philippine President Rodrigo Duterte could face prosecution under international law…

In the face of charges of ordering and condoning the murder of thousands of civilians by the Philippine National Police, President Rodrigo Duterte boasts that he is immune from suit. A former prosecutor himself, Duterte touts immunity as an armor.

The Rome Statute [PDF] of the International Criminal Court created the first permanent global criminal court to hear and try genocide, crimes against humanity, and war crimes. The Philippines validly ratified the Rome Statute, pursuant to Section 21, Article VII (Executive Department) of the 1987 Philippine Constitution. The Rome Statute entered into force in the Philippines on November 1, 2011.
Its domestic counterpart, the Philippine Act on Crimes Against International Humanitarian Law, Genocide, and Other Crimes Against Humanity (RA 9851) took effect 15 days after its publication in the Official Gazette on December 11, 2009.

Sitting presidents like Duterte can thenceforth be investigated, prosecuted, tried and punished under RA 9851 for war crimes, genocide, or other crimes against humanity before Philippine courts even during their tenure. No impeachment needed. No need for them to finish their term. Those constitute unjustifiable and inexcusable crimes – the gravest forms of human rights violations – and, therefore, absolutely prohibited. The President retains her or his immunity, true; but not for “core crimes” under Art. 5 of the Rome Statute.

RA 9851 purportedly accords immunity to the President, at least during her or his tenure. Under Sec. 9(a), Chapter V (Some Principles of Criminal Liability), the President is supposedly immune from being hauled into court during his or her tenure.

The Rome Statute lacks any provision comparable to the “other than the established constitutional immunity from suit of the Philippine President during his/her tenure” qualifier found in Sec. 9(a) of RA 9851. The Rome Statute’s silence on immunity from suit of heads of state, for “core crimes” punishable under Art 5, speaks volumes. This is precisely because no immunity for genocide, crimes against humanity, or war crimes exists.

Rome Statute Art. 27, para. 2 (Irrelevance of official capacity) accords no immunity at all to heads of state because, according to its preamble, such crimes are characterized by “unimaginable atrocities that deeply shock the conscience of humanity”. No immunity for war crimes, crimes against humanity and genocide exists since “such grave crimes threaten the peace, security and well-being of the world”.

Shorn of immunity, heads of state can legally be investigated, prosecuted, tried and punished for these crimes in order “to put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes”. Breaking the walls of impunity will surely “guarantee lasting respect for and the enforcement of international justice”.

Hence, the Rome Statute provides that immunities “shall not bar the Court from exercising its jurisdiction over such a person.” Instead of according heads of state with immunity, the Rome Statute seeks to destroy impunity. Non-immunity of heads of state from criminal prosecution deters the commission of mass atrocities.

The Rome Statute’s Art. 27 collides with Sec. 9(a) of RA 9851 on presidential immunity from suit for the worst international crimes. Having been a later act of both the President and the Senate, the Rome Statute ratification expresses the latest, specific intent of the President and the Senate – on behalf of the Philippine state – for the President to be legally bound by the Rome Statute, including its Art. 27 provision on the “[i]rrelevance of official capacity”. This later act of ratifying the Rome Statute effectively nullifies the immunity from suit, under Sec. 9(a) of RA 9851, of the President insofar as those crimes are concerned, assuming arguendo that such immunity was valid in the first place.

Furthermore, the Philippine ratification of the Rome Statute indicates the intent on the part of the state to further achieve its purpose in enacting RA 9851 into law. In light of RA 9851’s primary aim and purpose in Sec. 2(e) (Declaration of Principles and State Policies), the proper statutory interpretation then must be that, in ratifying the Rome Statute, the Philippine President and the Senate concurrently intended to reinforce and strengthen RA 9851 by removing any presidential immunity from suit for crimes under RA 9851. This, in order to achieve both RA 9851’s and the Rome Statute’s fundamental objective “to put an end to impunity for the perpetrators of these crimes and thus contribute to the prevention of such crimes” (Sec. 2[e], RA 9851).

The Philippines’ ratification of the Rome Statute reflects the subsequent and latest will of the state, as expressed through the President’s signing of the Rome Statute’s instrument of ratification with the subsequent concurrence of the Philippine Senate on August 23, 2011. The effective ratification of the Rome Statute supersedes and repeals Sec 9(a) of RA 9851. It shows its intent to fully carry out and fulfill the Philippine state’s obligation under the Rome Statute and its RA 9851 domestic counterpart to end impunity.

The incorporation clause of the 1987 Constitution (Sec. 2, Art. II) also renders nugatory the presidential privilege of immunity stated in Sec. 9(a) of RA 9851 for being violative of jus cogens principles or peremptory norms of customary international law. The Constitution’s “generally accepted principles of international law” include customary international law, comprising uniform and consistent state practices performed out of a sense of legal obligation. The Rome Statute also embodies jus cogens or peremptory norms of customary international law which are non-derogable. Those cannot be deviated from under any and all circumstances at all times, anywhere in the world. Jus cogens norms prohibit slavery, genocide, torture, crimes against humanity and war crimes.

RA 9851’s presidential immunity from suit is therefore void ab initio. Heads of state have no immunity for war crimes, genocide and crimes against humanity, as established in the Nuremberg judgment [PDF] and the Pinochet decision in Regina v. Bartle. Such “exception” is tantamount to according impunity to sitting presidents for these most egregious forms of international crimes. It’s incompatible with jus cogens or peremptory norms of customary international law.

Perfecto Caparas serves as the Associate Director of Graduate Programs and a Doctor of Juridical Science candidate of Indiana University Robert H. McKinney School of Law. He holds a Master of Laws (LLM) degree in American Law for Foreign Lawyers and an LLM in Human Rights (Honors). He is a lifetime member of the Integrated Bar of the Philippines.

Suggested citation:Perfecto Caparas, Prosecuting President Duterte, JURIST &#8212 Academic Commentary, Oct. 10, 2017, http://jurist.org/2017/10/perfecto-caparas-president-duterte.php.