Notes on Duterte’s threat to arrest ICC members

April 16, 2018 - 5:02 PM
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President Duterte says he will arrest the members of the International Court. How likely is this? (Artwork by Uela Badayos)

When President Rodrigo Duterte announced that he would arrest any member of the International Criminal Court who sets foot in the Philippines, it raised eyebrows among casual news readers who knew the order was next to impossible.

The president specifically threatened ICC Chief Prosecutor Fatou Bensouda at a press conference in Davao after he arrived from China and Hong Kong:

“You cannot exercise any proceedings here without basis. That is illegal and I will arrest you.”

“Kaya ikaw, Ms. Fatou, huwag kang pumunta dito kasi I will bar you. Not because I am afraid of you, I said, because you will never have jurisdiction over my person, not in a million years.”

Duterte argued that the ICC has no authority over the Philippines and cited his act of withdrawal from Rome Statute.

“But what is your authority now? If we are not members of the treaty, why are you f***ing in this country? You cannot exercise any proceedings here without basis. That is illegal and I will arrest you,” he declared.

Philippines is still covered by ICC rules

What the president failed to point out was that the Philippines’ withdrawal from the international treaty would only take effect a year after.

Since the letter of withdrawal was sent on March 16, the Philippines will effectively be outside the jurisdiction of the ICC and its governing law, the Rome Statute, by March 17, 2019.

The ICC started its preliminary examination of the communication against Duterte’s bloody war on drugs in February 2018. Even though the country has withdrawn from the treaty, the court stressed that it wouldn’t affect the investigations done against him.

The head office of the International Criminal Court in Netherlands. (The STAR/File)

No just cause for arrest 

Despite Duterte’s threats against the court, he cannot arrest any of its members without a legal basis.

According to Article 2 of The Revised Penal Code, a person can only be sanctioned under Philippine laws if he or she has committed any of the following offenses:

  1. Should commit an offense while on a Philippine ship or airship;
  2. Should forge or counterfeit any coin or currency note of the Philippine Islands or obligations and securities issued by the Government of the Philippine Islands;
  3. Should be liable for acts connected with the introduction into these islands of the obligations and securities mentioned in the presiding number;
  4. While being public officers or employees, should commit an offense in the exercise of their functions; or
  5. Should commit any of the crimes against national security and the law of nations.

Members of the ICC, however, have not been formally accused of treason, espionage, piracy, disturbance of proceedings, false testimony and other such crimes under Philippine laws.

None of its prosecutors is in the Philippines to commit violations and even if they are, Duterte has to find a solid cause that would render them a warrant.

Meanwhile, the court has the power to exercise its proceedings if the country refuses to be investigated in the “War on Drugs” campaign.

Related:

Fact check: Does the ICC have jurisdiction over Duterte?