Extrajudicial killings as crime against humanity

A TOTAL of 3,257 extrajudicial killings (EJKs) were committed during the Marcos dictatorship. In contrast, there were 805 drug-related fatalities from May 10 (when Rodrigo Duterte emerged winner of the presidential election) to Aug. 12, per the Inquirer count.

If the current rate continues, the total number of EJKs for the six years of the Duterte administration will end up about 700 percent more than the killings committed during the 14 years of the Marcos dictatorship.

President Duterte is either ill-advised or terribly underestimating the risk that he can be held liable at the International Criminal Court, given the circumstances of the killings.

In 2011, the Philippines ratified the Rome Statute which established the International Criminal Court. Under this treaty, every Filipino, including the President, can be tried by this Court which has jurisdiction over crimes against humanity. The treaty provides that when murder is “committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack,” it becomes a crime against humanity.

The possibility that the current EJKs will be considered by the International Criminal Court as amounting to a crime against humanity is a liability risk that our President is miscalculating.

Ruben Carranza, director of the New-York-based International Center for Transitional Justice, points out that “[w]hen over 500 civilians have been killed by both police and vigilantes with the clear goal of targeting them in a ‘war against drugs,’ with their impunity explicitly guaranteed by the president, then the elements of EJKs as a ‘crime against humanity of murder’ are already there—(a) widespread or systematic killings, (b) civilians are targeted, and (c) the perpetrators know or intended their conduct to be part of a widespread or systematic attack.”

On Aug. 11, Kabayan party-list Rep. Harry Roque delivered a privilege speech in which he said: “It is clear that the civilian population is being attacked—news reports all around us overwhelmingly establish that hundreds of Filipinos have been killed either directly by governmental forces or with their support or tolerance.”

Roque likewise said: “It is also clear that the President is aware that these acts are ongoing. Even without proof of a directive on his part, he has, in many instances, spoken about the use of violence against drug syndicates.”

Roque cited the decisions of international criminal tribunals which prosecuted political and military officials for crimes against humanity committed in Rwanda and the former Yugoslavia. These tribunals declared that “it is not necessary to show that [the crimes committed] were the result of the existence of a policy or plan” and that the plan “need not be declared expressly or even stated clearly and precisely. It may be surmised from the occurrence of a series of events.”

The party-list representative cautioned the President to be careful: “While it would be imprudent for me to say with certainty that President Duterte has already committed a crime against humanity, it would be a disservice to this entire nation if I did not warn him to be careful. Neither the Rome Statute nor general international law prescribes a minimum number of victims for an indictment. So long as the [International Criminal Court] believes that the war on drugs is ‘widespread’ and ‘systematic,’ [it is] likely to investigate.”

The President enjoys immunity under Philippine law, but he has no similar immunity for crimes under the International Criminal Court’s jurisdiction. Carranza says “the presidents of Sudan and Kenya were charged” in the court even during their incumbency. And there is no expiration of liability for ICC crimes, so he can be charged even long after he leaves Malacañang.

The determination of Mr. Duterte to cleanse the country of the drug menace and his willingness to risk his “life, honor, and the presidency” to achieve this goal are praiseworthy.

However, we are at that stage of our civilization where we have long abandoned the ancient practice of relying on operatives to dispense justice through the smoking barrel of their guns. We have advanced our civilization by relying on gun-wielding men to apprehend criminals, but have separately assigned the task of listening to accusations of guilt and protestations of innocence to men and women who mete out penalties.

It is true that our current justice system is notoriously imperfect and graft-prone. But we do not improve our way of life by marching back to the Dark Ages where justice is made synonymous with violence. We improve our defective justice system by fixing it, not by abandoning it.

It is true that the proliferation of drugs is partly due to corrupt judges. But it is also true that illegal drugs proliferate because of a corrupt police force and a corrupt prosecution service, both of which are executive agencies within the President’s control to reform.

It is also true that before our children become drug dependents who clog police and court dockets, there are the education, health, and social welfare departments which are executive agencies within the President’s control to tap for instructive, reformative, and curative solutions to the drug menace.

We want our President to succeed in his fight against illegal drugs. But in his haste and zeal, he may end up accused of a crime more serious than the ones perpetrated by his archenemies. The last thing our country needs is a President facing trial at the International Criminal Court.

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