The ICC and Extrajudicial Executions in the Philippines

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Below are two possible exam questions for the students and cognoscenti of international criminal law with regard to the possible involvement of the International Criminal Court in the ongoing campaign of state-sanctioned extrajudicial killings in the Philippines, a manifest violation of the right to life under customary international law and Article 6 ICCPR that has so far claimed almost 2,000 lives with no sign of abating (see, e.g, here and here). I would just note, by way of preface, that we have devoted a lot of attention on the blog to the recent arbitral award on the South China Sea dispute, but are yet to comment on the sheer irony of a state claiming the protection of international law while simultaneously proceeding to violate that law so thoroughly and so tragically – I imagine because the irony is so obvious, so depressing, and so familiar. We shall see whether a significant cost will be exacted internationally from the Duterte regime for its violation of the most fundamental of human rights, but I’m not holding my breath.

In the meantime, note that the Philippines have been a party of the Rome Statute since 2011 and consider – if you were the ICC Prosecutor, what would you do now? Should you intervene, how, to what benefit and at what cost? Then ponder these two little exam questions:

  1. “Despite plausible evidence that 2,000 individuals have been killed in the Philippines with the support of the government, these killings do not satisfy the ‘widespread or systematic attack directed against any civilian population’ chapeau requirement for crimes against humanity under Article 7 of the Rome Statute. In the absence of an armed conflict they equally cannot constitute war crimes, even if the government rhetorically claims to be fighting a ‘war against drugs.’ Accordingly, the ICC is without jurisdiction with respect to this situation, no matter how tragic.” Discuss.
  2. “Even if the substantive elements of crimes against humanity or war crimes were met, President Duterte could not be qualified as their ‘indirect co-perpetrator.’ Shame – because we totally could have nabbed him under the ICTY/R doctrine of joint criminal enterprise!” Discuss.
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Jordan says

August 30, 2016

Widespread or systematic need not involve more than 2,000 deaths. Further, they are not requirements under CIL or reflected in traditional instruments like the Charters of the IMTs or CC No. 10. The newer draft treaty, therefore, will not cover all CAH under CIL.
Re ICCPR and customary HR, were all killings "arbitrary"?

Matsiko Samuel says

August 30, 2016

Article 7 has to be read as a whole on the definition for crimes against humanity. ICTY definition required a nexus to armed conflict whereas ICTR required a discriminatory motive however the Rome Statute provided for a policy requirement in Article 7(2).
Where the disjunctive test of widespread or systematic fails to screen out ordinary recourse is taken to the policy requirement. The policy requirement does not require active orchestration but may be implied and inferred

Barrie Sander says

August 30, 2016

Thanks Marko, very interesting indeed.

I also think the Nauru files recently leaked by The Guardian would make for an interesting exam question i.e. whether the abuses against asylum seekers in the Nauru detention centre satisfy the elements of crimes against humanity, which prohibited acts have been committed, to which actors such crimes may be attributable, and whether the situation would be admissible before the ICC (including an analysis of the gravity criterion).

For a brief comment by Richard Ackland at The Guardian, see here:

Stephen Chaudoin says

August 31, 2016

For question (2), is there any reason why Duterte wouldn't be in a similar predicament as Joseph Sang of Kenya? Both were/could be accused of making public, encouraging statements about the violence in their respective situations.

That's an honest question for me. I'm a political scientist, not a lawyer.

For me, the relevant question is: What is the most likely avenue for accountability in this situation? Is it opening and ICC examination?

The ICC going after a guy with 90% approval ratings for a crime that the public and political elite seem to strongly support strikes me as unlikely to succeed if the goal is direct accountability for the principals.

Thanks for the thoughtful post, Marko.


September 4, 2016

DEAR Marko Milanovic,
The article has been drawn on a very sensitive issue, which need attention at some appropriate international forum as an important agenda. But the anomaly which persist in my mind is that the "ICC which seem to be so proactive when it comes to prosecuting african leaders involved in war crimes or crime against humanity, is profoundly silent upon Duterte, which leads me to another important question that whether ICC could only be seen as political organisation or transparency is a distant dream in such organization".Please share your view on this issue.