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Prosecuting President Duterte

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Perfecto Caparas
OCTOBER 10, 2017 09:50:19 PM
Edited by: Sean Merritt

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
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immunity as an armor.

NGOs file war crimes lawsuit against

The Rome Statute [PDF] of the International Criminal Court created the first permanent global criminal court to
defense manufacturers in France
hear and try genocide, crimes against humanity, and war crimes. The Philippines validly ratified the Rome Statute, court
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 Myanmar junta to carry out country’s
Other Crimes Against Humanity (RA 9851) took effect 15 days after its publication in the Official Gazette on first judicial executions since 1988

December 11, 2009.

Sitting presidents like Duterte can thenceforth be investigated, prosecuted, tried and punished under RA 9851 for
Federal judge rules employers
war crimes, genocide, or other crimes against humanity before Philippine courts even during their tenure. No cannot deny gender affirming care
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.
New York passes bill raising
minimum age for buying or owning
RA 9851 purportedly accords immunity to the President, at least during her or his tenure. Under Sec. 9(a), Chapter semiautomatic rifles to 21, among
V (Some Principles of Criminal Liability), the President is supposedly immune from being hauled into court during others

his or her tenure.

The Rome Statute lacks any provision comparable to the “other than the established constitutional immunity from Switzerland high court rules Uber
drivers are employees, entitled to
suit of the Philippine President during his/her tenure” qualifier found in Sec. 9(a) of RA 9851. The Rome Statute’s benefits
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
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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”.
Israel’s War on Terror: Elements of
Law and Strategy
Shorn of immunity, heads of state can legally be investigated, prosecuted, tried and punished for these crimes in by Louis Rene Beres
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”. Responding to the National Crime
Wave: New Framework Needed to
Combat Recidivism
Hence, the Rome Statute provides that immunities “shall not bar the Court from exercising its jurisdiction over
by Jeffrey J. Clayton
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.

USA and India on Abortion Rights:

The Rome Statute’s Art. 27 collides with Sec. 9(a) of RA 9851 on presidential immunity from suit for the worst Falling on Opposite Ends of the
international crimes. Having been a later act of both the President and the Senate, the Rome Statute ratification Spectrum
by Gayatri Kondapalli and Akarshi
expresses the latest, specific intent of the President and the Senate – on behalf of the Philippine state – for the
Narain
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
Jahangirpuri and the Demolishing of
valid in the first place. India’s Rule of Law
by Samriddha Sen

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 LATEST TWEETS
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). JURIST
@JURISTnews
The Philippines’ ratification of the Rome Statute reflects the subsequent and latest will of the state, as expressed In our latest commentary, Louis René Beres, a
through the President’s signing of the Rome Statute’s instrument of ratification with the subsequent concurrence specialist on matters of international law,
jurisprudence and world politics, discusses the
of the Philippine Senate on August 23, 2011. The effective ratification of the Rome Statute supersedes and repeals ongoing violence involving Israel and Palestine:
Sec 9(a) of RA 9851. It shows its intent to fully carry out and fulfill the Philippine state’s obligation under the Rome buff.ly/38MUUoa
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 Israel’s War on Terror: Elements of Law …
in the world. Jus cogens norms prohibit slavery, genocide, torture, crimes against humanity and war crimes. Now facing further rounds of terror attack, I…
jurist.org

RA 9851’s presidential immunity from suit is therefore void ab initio. Heads of state have no immunity for war
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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 JURIST
for these most egregious forms of international crimes. It’s incompatible with jus cogens or peremptory norms of @JURISTnews

customary international law. Countries including the #US and #Britain have
called for the International Labour Organization to
probe alleged labour abuses in China’s #Xinjiang
Perfecto Caparas serves as the Associate Director of Graduate Programs and a Doctor of Juridical Science region. Niamh Forgie from @AKLLawSchool has
candidate of Indiana University Robert H. McKinney School of Law. He holds a Master of Laws (LLM) degree in the full story: buff.ly/3NcZD1v

American Law for Foreign Lawyers and an LLM in Human Rights (Honors). He is a lifetime member of the
Integrated Bar of the Philippines. Countries call on Internatio…
Countries including the United…
Suggested citation:Perfecto Caparas, Prosecuting President Duterte, JURIST &#8212 Academic Commentary, Oct. jurist.org

10, 2017, http://jurist.org/2017/10/perfecto-caparas-president-duterte.php.

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This article was prepared for publication by Sean Merritt, an Assistant Editor for JURIST Commentary. Please direct any questions or comments to him at commentary@jurist.org
JURIST
@JURISTnews
The Swiss Federal Supreme Court Friday upheld
a ruling classifying #Uber drivers as employees,
Opinions expressed in JURIST Commentary are the sole responsibility of the author and do not necessarily thereby giving them all the rights and benefits
provided to employees in #Switzerland.
reflect the views of JURIST's editors, staff, donors or the University of Pittsburgh.
@PittLaw's Rebekah Malkin writes:
buff.ly/3zxTY2f

Switzerland high court rules Uber driver…

The Swiss Federal Supreme Court Friday u…
jurist.org

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JURIST
@JURISTnews
Our #Myanmar law students are flagging a 20-
year prison sentence handed down against a
third-year Magway University law student by a
military junta court. #WhatsHappeningInMyanmar
jurist.org/news/2022/06/m…

Myanmar dispatch: military junta court s…

Myanmar law students are reporting for JU…
jurist.org

22h

JURIST
@JURISTnews
A timely initiative from our friends and allies at the
International Bar Association. #Lawyers are critical
to the protection and promotion of the
#RuleOfLaw. Whenever and wherever they are
attacked and undermined, human freedom and
dignity suffer. @MarkEllisIBA @IBAnews
https://twitter.com/IBAnews/status/153242543634
0310042

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