I Want A New Drug—President Duterte’s Deadly War on Drugs & Violations of International Human Rights Laws in the Philippines
By Laura Bassett
Background
In May 2016, the Philippines elected Rodrigo Duterte after a campaign promising a tough stance on drugs.[1] Duterte was previously the mayor of Davao, one of the largest cities in the Philippines.[2] As mayor, he was investigated by rights groups about killings of criminals throughout Davao.[3] While the Davao police deny existence of “government-sanctioned death squads,” the Human Rights Watch, the UN, & the Philippine Commission on Human Rights have all found evidence that such government-sanctioned killings occurred in Davao while Duterte was mayor.[4] During his presidential campaign, he boasted of personally killing criminals, waging a “bloody” war on criminals if elected (vowing to kill 100,000 in the first 6 months), & “dump[ing] so many body in Manila Bay that the fish will get fat.”[5]
Thankfully, his stated numerical goals have turned out to be—like most campaign statements—merely inflammatory rhetoric; however, he has ordered the executions of 6,000 people in his first six months in office.[6] Of those deaths, one-third of them have been police-involved, while two-thirds are extra-judicial & vigilante-involved; Duterte was officially cleared of culpability in December for the extrajudicial deaths, though his rhetoric was determined—without punishment or responsibility—to be inflammatory.[7]
Criminal Charges
While the government of the Philippines is killing members of a specified group with the intent to wholly or partially destroy that group, this War on Drugs doesn’t count as a Genocide under the Convention for the Prevention & Punishment of Genocide. It says that genocide is committed against members of a “a national, ethnical, racial or religious group,” [8] and drug dealers/pushers aren’t members.
The lack of recourse available under the Genocide Convention doesn’t mean that there is no punishment available at all. Under Article 5 of the Rome Statute of the International Criminal Court (ICC), the ICC has jurisdiction over the genocide, crimes against humanity, war crimes, & the crime of aggression.[9] Article 7, defining Crimes Against Humanity, states in pertinent part that “‘crime against humanity’ means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack” with the first listed act being murder. [10] It further explains that “‘[a]ttack directed against any civilian population’ means a course of conduct involving the multiple commission of acts referred to in paragraph 1 against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack[.]”[11]
These should be easy claims for any prosecutor to bring & prove to the ICC. If we define murder as defined in the Philippines (since its definition isn’t included in the subsection 2 definitions), Article 248 of the Revised Penal Code of the Philippines tells us that
[a]ny person who, . . . shall kill another, shall be guilty of murder . . . if committed with any of the following attendant circumstances:
1. With treachery, taking advantage of superior strength, with the aid of armed men, or employing means to weaken the defense or of means or persons to insure or afford impunity. . . .
6. With cruelty, by deliberately & inhumanly augmenting the suffering of the victim, or outraging or scoffing at his person or corpse. [12]
Even before analyzing the rest of the murder statute, we can say for a fact that using the military to kill falls under subsection 1, stating that an attendant circumstance can include using “the aid of armed men.” Therefore, systematic murder is one crime against humanity of which President Duterte could be prosecuted.
Among the anecdotal evidence against Duterte are the stories of two 27-year-olds, Sammer Torculas & Mark Anthony Culata. Torculas was struck by 8 bullets after policemen stormed his house to look for his mother, an admitted methamphetamine dealer.[13] A killing in this manner certainly invokes the first subsection of the murder statute, as it involves the use of armed men, but an argument might be made under subsection 6, as well, if the 8 bullets augmented the suffering of the victim. Culata, alternatively, was shown on surveillance video being picked up by the police before his mutilated body was found taped up, with a sign stating that he was a pusher, despite lacking a history of drug use.[14] The mutilation & taping of the victim & of his body would safely qualify as an attendant circumstance under subsection 6.
What Can Be Done
The Philippines signed the Rome Statute on December 28, 2000, & it deposited its ratification on August 30, 2011.[15] Ratification is one way that a country can show its intention to be bound by the treaty.[16] As the Philippines is bound by the Rome Statute, they are subject to the jurisdiction of the ICC.
The ICC’s process for investigation begins with a preliminary examination of the offenses, wherein the Prosecutor determines whether there is enough evidence to proceed.[17] If so, the Prosecutor will move to the Investigations stage, where she will request the ICC issue an arrest warrant for the suspect & a subpoena to appear.[18] At the Pre-Trial stage, the suspect’s identity is confirmed, the charges are explained, & the judges rule on whether the case should proceed.[19] If the case proceeds, three judges will hear all the evidence & decide whether the accused is guilty beyond a reasonable doubt; if yes, the accused will be sentenced, but if no, the accused will be released with the charges dropped.[20]
Unfortunately, things might have to get worse in the Phillippines before they get better. While this issue is starting to truly gain worldwide attention, we may not see any moves by the Office of the Prosecutor for several years, if we ever see them at all. In the meantime, staying vigilant about the ongoing abuses & continuing to report them will enable evidence to be gathered in the event that charges are brought.
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[1] Sherwin Alfaro & Elizabeth Roberts, Philippines: More than 5,900 deaths in 'war on drugs' since July, CNN (Dec. 12, 2016, 11:38 AM), http://www.cnn.com/2016/12/12/asia/philippines-death-toll-drug-war/.
[2] Floyd Whaley, Rodrigo Duterte’s Talk of Killing Criminals Raises Fears in Philippines, N.Y. Times (May 17, 2016), http://www.nytimes.com/2016/05/18/world/asia/rodrigo-duterte-philippines.html?_r=0.
[3] Id.
[4] Id.
[5] Id.
[6] Thomas Maresca, Duterte's controversial drug war: 6 months, 6,000 deaths in the Philippines, USA Today (Jan. 6, 2017, 1:22pm ET), http://www.usatoday.com/story/news/world/2017/01/06/rodrigo-duterte-philippines-drug-war/96062066/.
[7] Id.
[8] Convention on the Prevention & Punishment of the Crime of Genocide, UN GA Res. 260 (III) A (1948).
[9] Rome Statute of the International Criminal Court (Rome, 17 July 1998) UN Doc. A/CONF.183/9 of 17 July 1998, entered into force 1 July 2002.
[10] Id.
[11] Id.
[12] Revised Penal Code of the Philippines, Art. 248, available at http://www.un.org/Depts/los/LEGISLATION&TREATIES/PDFFILES/PHL_revised_penal_code.pdf.
[13] Thomas Maresca, Duterte's controversial drug war: 6 months, 6,000 deaths in the Philippines, USA Today (Jan. 6, 2017, 1:22pm ET), http://www.usatoday.com/story/news/world/2017/01/06/rodrigo-duterte-philippines-drug-war/96062066/.
[14] Id.
[15] State Parties to the Rome Statute, International Criminal Court (Last Updated Sep. 1, 2011), https://asp.icc-cpi.int/en_menus/asp/states%20parties/asian%20states/Pages/philippines.aspx.
[16] Vienna Convention on the Law of Treaties art. 14, opened for signature May 23, 1969, 1155 U.N.T.S. 331.
[17] About: How the Court Works, International Criminal Court, https://www.icc-cpi.int/about/how-the-court-works/Pages/default.aspx#legalProcess (accessed Jan. 22, 2017).
[18] Id.
[19] Id.
[20] Id.