ICC spokesman says court may issue warrants of arrest vs. heads of state

The International Criminal Court (ICC) has started the investigation into the killings attributed to President Rodrigo Duterte's war on drugs.

ICC prosecutor Karim Khan, vowed that the truth would come out and those who involved in the alleged crimes would be held accountable.

But how will the Rome Statute's court go after heads of states and other officials involved in the criminal cases before it?

In a Facebook live where he answered questions on the tribunal's processes, ICC spokesman Fadi El Abdallah said the international court could issue an arrest warrant against leaders of member states of the Rome Statute, which established the ICC.

He explained that the ICC could also issue an arrest warrant versus heads of nations that are not members of the Rome Statute.

"Yes, it is possible. Because the immunity of heads of state is not something that is opposable to the ICC," said Abdallah, responding to a query on arrest warrants against accused leaders of nations.

"That is part of ICC Rome Statute so when the state has ratified the Rome Statute that means the State has accepted that even heads of state or other officials from that state are not immune from prosecution before the ICC if of course there are enough evidence to accused person," he added.

"And, in the same logic, if the Security Council imposes the Rome Statute as an obligation to a state that is not part of Rome Statute the same Article 27 remains applicable for the ICC," Abdallah said.

The ICC official said the immunity of a head of state could not be applied to the ICC, which is an international court that did not represent a specific state.

"It has been accepted as part of international law that immunity of head of states is actually something that is used to prevent the prosecution of head of state before a jurisdiction from another state," Abdallah said.

"But that's not opposable when the prosecution that is coming from an international tribunal that is not representing a specific state," he added.

"So it's not about the sovereignty of state, in that case, that there is general principle and international and there is specific article in Rome Statute that means immunity is not opposable to the ICC actions," Abdallah said.

Under Article 27 of the Rome Statute, the Statute shall apply equally to all persons without any distinction based on official capacity.

Specifically, all heads of state or government, member of government or parliament, elected representative or government official shall in no case exempt a person from criminal responsibility under the Statute nor shall it constitute grounds for reduction of sentence.

Further, under this provision, immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, will not bar the International Criminal Court from exercising its jurisdiction over such a person.

'Protect victims'

The ICC is also not targeting states in its investigation but to protect the victims of crimes in a specific nation, Abdallah said.

He said that the ICC would open an investigation if the state had no capacity to do so.

"What the ICC is trying to do is  not to target a specific location but to protect the victims wherever the ICC has jurisdiction, has the possibility to do that and it's not already done on the national level," Abdallah said.

"The jurisdiction of ICC is complementary to the national jurisdiction. It doesn't replace that but if the national jurisdictions are not conducting their own genuine investigations either because there is no will or the capacity to do that and the ICC has jurisdiction then we can open an investigation," he added.

However, if the investigation is being done on the national level, Abdallah said the ICC need not to open an investigation into that case.

Aside from the Philippines, the ICC is also conducting investigations on the gravest crimes of concern in Kenya, Libya and Palestine, among others.

The gravest crimes of concern classified by the ICC are genocide, war crimes, crimes against humanity and the crime of aggression.

Confidential

Abdallah refused to give comments on specific cases on crimes in other countries because these complaints are being looked into by specific prosecutors of the ICC.

"I do not speak on behalf of the prosecutor's office," said Abdallah.

He also pointed out that ICC's conducts of investigation were confidential to protect its witnesses and collecting evidence.

"I need also to stress that conduct of investigations is naturally confidential because that is the best way to secure the protection of witnesses, gathering of evidence and all that can be submitted from the icc judges and from there we can have it public of course," Abdallah said. -NB, GMA News