The ICC and Extrajudicial Executions in the Philippines

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.