The long view on ICC and UNHRC

In the Communication and Complaint filed by Rise Up for Life and for Rights, assisted by the National Union of People’s Lawyers, with the International Criminal Court (ICC), the families of victims in the war against drugs by the current administration argue that President Rodrigo Duterte be indicted for crimes against humanity and that he should be held criminally responsible for the widespread and systematic attacks against the civilian population.

On the first argument, the complainants holds Duterte criminally responsible and liable for crimes against humanity through the above mentioned acts of murder proscribed under Article 7 Paragraph 1 (a) of the Rome Statute, as perpetrator of the widespread and systematic attack against civilians which resulted in the mass killing of at least 4,410 civilians, including the the relatives of the complainants.

In this regard, they argue that the President has made numerpus public announcements about his policy to end the illegal drug proble in the Philippines through the killing and elimination of those he sweepingly labels as drug addicts, drug pushers and drug syndicates. This started during his campaign for the Presidency and reiterated repeatedly when he became President of the Philippine Republic. This he did in spite of the warning by the ICC Prosecutor in October 2016 that incitement to crimes against humanity was also within the scope of the Rome Treaty.

According to the Rise UP complaint, the victims are civilians, and the attacks were directed against the civilian population because they are ―persons who are civilians as opposed to members of armed forces and other legitimate combatants”. In fact, the report of the government has in fact admitted that most of these killed are civilians.

The complainants characterize the attacks as systematic because killing drug suspects is the policy enunciated by President Duterte through many of his rambling and repetitious public speeches in various parts of the country as well as his vaunted drug lists supposedly containing the names of drug suspects who are targets of his ruthless anti-drug campaign. In fact, the modus operandi of the killings show a unified design – three elements of a pattern, namely the public vilification of the victims, brazenness of the execution of the victims and the government‘s lack of interest to investigate and prosecute the crime and the perpetrators.

According to the Rise Up complaint, President Duterte has knowledge of the killings and other attacks on the civilian population. Among others, the Duterte Administration has boasted the number of casualties, now nearing 25,000, as successes in the war against illegal drugs.

The Rise Up complaint also insist argue that Duterte is criminally liable for the widespread and systematic attack against civilians in the form of inhumane acts intentionally causing great suffering, or serious injury to body or mental or physical health proscribed under Article 7 Paragraph (k) of the Rome Statute under his anti-drug policy against drug suspects including through its Oplan Tokhang, Double Barrel, and the Oplan Double Barrel Reloaded policies.

In support of this, the following acts are pointed as constituting the inhumane acts under Article 7 (k): namely the extra judicial killing of thousands drug suspects, the illegal searches in thousands of houses, the arbitrary drug testing of thousands of civilians even those not suspected of involvement in illegal drugs and the arrest of thousands under Duterte policies, including even the anti- tambay (anti vagrancy campaign).

The Rise Up complaint assert that it has clearly shown that President Duterte committed the acts of Crimes Against Humanity and had every intention of committing these acts. The direction and instructions – as well as the open incitement and encouragement and assurances of impunity — for the murders and inhumane acts, so widespread and systematic, constituting crimes against humanity, come from no less than President Duterte himself.

The President is criminally responsible, under the principle of command responsibility under Article 28, paragraphs (a) and (b), being the commander and superior authority over the police and other state security forces who committed the above mentioned acts of murder, inhumane acts, and other forms of persecution in the implementation of his policy against suspected drug and crime suspects.

At the very least, President Duterte, according to complainants, is guilty of crimes against humanity under Article 28 for command responsibility, for not taking all the actions needed to stop the crimes against humanity.

Although I would personally not want an ICC case commenced against Duterte, preferring a domestic trial, I understand where the victims are coming from. I understand also the need to stop the killings now.

In this regard,  I welcome the Philippines’ election as member once again of the United Nations Human Rights Council (UNHRC). The administration has boasted that this is a validation of its war against drugs and a repudiation of the human rights issue raised against the Duterte government. This of course is not true. My esteemed colleague Ruben Carranza, one of the world’s top experts on transitional justice, explains what happened:

“NO, THE PHILIPPINES DID NOT “WIN” RE-ELECTION AT THE UN HUMAN RIGHTS COUNCIL. When you have a five-seater car and the 193 persons who share it agree that only 5 people at a time can take turns riding in it, you can’t claim you “won” a seat if it was your turn to ride with 4 others. But that’s not the only reason Rodrigo Duterte’s government cannot claim it “won” at the UN HRC. With no one else contesting the 5 UNHRC seats for the Asia-Pacific region, the Philippines still got the least number of votes in the secret balloting that took place among the 193 countries in the UN General Assembly. 28 countries chose NOT to vote for the Philippines to get that 5th seat, leaving their ballot with at least one blank rather than going along with giving that UN HRC seat to a hypocritical, human-rights-violating and child-murdering government.”

In any case, I am glad that the Philippines is back in the UNHRC. I have worked with our diplomats on human rights issues, including in the UNHRC, for decades. I trust that, like me, they will take the long view. Duterte will not be there forever; when the transition comes, sooner rather than later in my view, membership in the Council would be invaluable.

With this long view in mind, I also welcome the appointment of United Nations Ambassador Teddy Boy Locsin as Foreign Affairs Secretary. His ascerbic, sarcastic, and biting language (which I always enjoy, although obviously I have enjoyed it more when we are in agreement), Locsin understands what is at stake in the ICC and in the UNHRC and will allow our diplomats to do what has to be done for the sake of national and not just Duterte’s interest.

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