Conspiracy to commit crimes against humanity

“The evidence is abundant.”

Quoting from International Criminal Court (ICC) Prosecutor Ms Fatou Bensouda’s “Request for authorisation to open an investigation into the situation in the Republic of the Philippines in connection with President Duterte’s war on drugs (WoD) campaign,” I feature in this column the findings and observations of the prosecutor to support her main thesis that the extrajudicial killings in relation to the WoD campaign was a systematic and conscious policy by the State to stamp out the proliferation of drugs in the country.

In her report, the ICC Prosecutor concludes that there is a reasonable basis to assume that the extrajudicial killings collectively amounts to an “attack” within the scope of article 7(2)(a) of the Statute and/or whether any such attack was widespread or systematic under article 7(1) of the Statute.

According to the request, Philippine authorities’ official narrative that killings were only committed in self-defense is consistently undermined by other information such as that, there are enough indications of planning in killing such that according to witness accounts, many incidents, it appears the killings neither occurred in “shootouts” nor were otherwise justified, but instead resembled summary executions. Some victims were last seen alive in police custody, and yet police reports indicated that the killings occurred during a buy-bust or similar operation, with no mention of any arrest. A number of statements by local officials and insiders also indicate that killings were planned in advance, rather than arising spontaneously when suspects “fought back.” Additionally, while authorities claim that police only killed drug suspects in self-defense, statements by some public officials suggest that they considered the killings an achievement and an integral component of the WoD campaign, regardless of whether they were justified.

The ICC Prosecutor also observes that the victims’ wounds are inconsistent with self-defense. For example, many victims were shot multiple times, even eight to 10 times and in one documented case 30 times, and a number of victims sustained gunshot wounds to their backs or at the back of their heads. Moreover, the police planted evidence, tampered with crime scenes, and took other measures to conceal conduct. For example, an officer with the Anti-Illegal Drugs Unit (“AIDU”) in Metro Manila involved in WoD operations told AI that these practices were common among police officers. Members of law enforcement also took other measures to conceal their conduct; indeed in a number of incidents, police disabled surveillance cameras in the immediate area.

To Prosecutor Bensouda, there is reasonable ground to believe that thousands of similar killings committed outside of official law enforcement operations between 1 July 2016 and 16 March 2019 were directly perpetrated in connection to the WoD campaign, despite being attributed by the police to “unidentified” perpetrators. The perpetrators of such killings appear to include law enforcement officers who sought to conceal their true identity, private actors who coordinated with and were paid by the police, and in some cases other private individuals or groups instigated to act by the government’s WoD campaign and statements by Duterte calling for drug suspects to be killed. The term “vigilantes” (or “anti-drug vigilantes”) has commonly been used as an umbrella term – including by the authorities, the media, and NGOs – to refer to private perpetrators of WoD-related killings.

As stated in the Request, law enforcement authorities have variously ascribed such killings to love triangles or feuds or rivalries between drug gangs and criminal organizations, and were not connected to the WoD. While true in some cases, a significant number of these killings appear to be directly connected to the WoD, based on apparent links between the perpetrators and law enforcement, the profile of the victims, the motives for the killings, and the generally consistent types of modus operandi employed by the perpetrators. Some of the participants in the killings have come forward to say they were hired by police to carry out WoD killings. Further, some killings attributed to unknown assailants appear to have been committed directly by members of law enforcement in plain clothes who took measures to make the killings appear as having been perpetrated by private actors.

Bensouda alleges that there is consistency in the relevant killings, that the targeted victims were civilians suspected of being connected to illegal drug activities, including persons on drug watch lists, persons who had been publicly identified as drug personalities, and that those who had previously surrendered to the authorities as part of Operation Tokhang. In fact, an examination of extant information illustrates that the examples of extrajudicial killings and related violence above discussed are the rule rather than the exceptions. They appear to be a defining characteristic of the national WoD campaign, which has affected nearly every corner of the country, spanned a number of years, and appears to implicate the highest levels of Philippine law enforcement and government.

There is abundant evidence that would yield the conclusion that there was (and is) a conspiracy in the Philippines to commit crimes against humanity. There is also solid proof that this conspiracy includes officials at the highest levels of government. This is why the investigation requested by the ICC Prosecutor must be granted by the ICC pre-trial chamber.

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