EXPLAINER: Police, military officials liable for Duterte's illegal kill orders
For purposes of holding perpetrators criminally responsible, the Rome Statute of the International Criminal Court (ICC) considers as blatantly illegal any order to commit a crime against humanity.
Article 33, Paragraph 2 (Superior Orders and Prescription of Law), provides: “For the purposes of this article, orders to commit genocide or crimes against humanity are manifestly unlawful.” (READ: HRW: Duterte could be held liable for crimes against humanity)
Hence, police and military officials and personnel should take heed that they won’t be absolved or freed from any criminal culpability simply because it was their superior who issued the “manifestly unlawful order” (Rome Statute, Article 33, Paragraph 2).
At best, they could only invoke obedience to superior orders as a mitigating circumstance; but that will never exculpate them from criminal liability.
In prosecuting the crime against humanity of murder, The Elements of Crime, Article 7 (Crimes Against Humanity), Paragraph 1 (Introduction), considers “that crimes against humanity as defined in Article 7 are among the most serious crimes of concern to the international community as a whole….”
Hence, they “warrant and entail individual criminal responsibility, and require conduct which is impermissible under generally applicable international law, as recognized by the principal legal systems of the world.”
According to Article 7, Paragraph 1, of the Rome Statute of the ICC, crime against humanity “means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:
(d) Deportation or forcible transfer of population;
(e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;
(g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity;
(h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court;
(i) Enforced disappearance of persons;
(j) The crime of apartheid;
(k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.”
Article 7, Paragraph 2, of The Elements of Crime, in turn, qualifies: “‛Attack directed against any civilian population’ means a course of conduct involving the multiple commission of acts referred to in Paragraph 1 against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack.”
Crime against humanity of murder
The ongoing murderous frenzy can qualify as a crime against humanity of murder under the above Rome Statute definition. The Elements of Crimes provides:
“2. The last two elements for each crime against humanity describe the context in which the conduct must take place. These elements clarify the requisite participation in and knowledge of a widespread or systematic attack against a civilian population. However, the last element should not be interpreted as requiring proof that the perpetrator had knowledge of all characteristics of the attack or the precise details of the plan or policy of the State or organization. In the case of an emerging widespread or systematic attack against a civilian population, the intent clause of the last element indicates that this mental element is satisfied if the perpetrator intended to further such an attack.
3. ‛Attack directed against a civilian population’ in these context elements is understood to mean a course of conduct involving the multiple commission of acts referred to in article 7, paragraph 1, of the Statute against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack. The acts need not constitute a military attack. It is understood that ‛policy to commit such attack’ requires that the State or organization actively promote or encourage such an attack against a civilian population.”
Article 7(1)(a) provides the following as the elements of the crime against humanity of murder:
“1. The perpetrator killed one or more persons.
2. The conduct was committed as part of a widespread or systematic attack directed against a civilian population.
3. The perpetrator knew that the conduct was part of or intended the conduct to be part of a widespread or systematic attack against a civilian population.”
Whether the elements constituting the crime against humanity of murder can be proven – be it in a domestic court based on Republic Act 9851 or the ICC itself – will largely depend, as everyone knows, on evidence.
International criminal jurisprudence – including those that relate to the mode of committing the crime – are generally used in ascertaining an individual’s guilt, particularly if the case were to be tried before the ICC. In the event of a domestic trial, Section 15 of RA 9851 provides that treaties ratified by the Philippines – which necessarily include the Rome Statute of the International Criminal Court – can serve as a guide in applying and interpreting RA 9851.
No matter how government apologists try to justify and rationalize the unabated killing sprees, the government will continue to bear responsibility and face global outcry for the trail of blood and piling up of dead bodies. We cannot stomach these mass murders. We will never condone human rights violations. The snowballing killings violate the fundamental right to life, to due process of law, right to a presumption of innocence, right to a fair, public and impartial trial and a host of other inviolable rights.
Even fabricating the specter that those were vigilante killings won’t help, for even in such case, the government bears responsibility to carry out prompt and impartial investigations and prosecute perpetrators. The lack of any such credible investigation and prosecution only serves to demonstrate official acquiescence to, if not downright instigation or perpetration, of summary executions.
Crime against humanity
Those killings indeed constitute a crime against humanity of murder, with very real consequences due to our country’s ratification of the Rome Statute of the International Criminal Court. Our state functionaries are subject to ICC jurisdiction. The ICC has jurisdiction over war crimes, crimes against humanity, and genocide committed within Philippine territory or by Filipino nationals. The Rome Statute is precisely designed to demolish the wall of impunity with which state officials commit human rights violations, like the ones occurring on a virtually daily basis in our midst.
Subject to the principle of complementarity, the Philippines will likely face a preliminary examination by the ICC prosecutor. Appeals for investigations and a stop to the killings from the United Nations and other international human rights bodies and mechanisms will undoubtedly grow stronger and continue to mount.
The country will likely face the prospects of a full investigation by the ICC prosecutor. It’s but a matter of time. Kenyan political leaders, for example, including President Uhuru Kenyatta, faced criminal prosecution before the ICC in The Hague, The Netherlands, for the post-election violence that marred the country back in 2007-2008.
Domestic or international investigation and prosecution?
We already have an adequate domestic legal framework to deal with the mass murders – RA 9851, or the Philippine Act on Crimes Against International Humanitarian Law, Genocide, and Other Crimes Against Humanity.
What is highly doubtful though is whether we can demonstrate our political will, willingness, or ability to prosecute state actors for the crime against humanity of unlawful killing under RA 9851. An unwillingness to investigate, prosecute, and try on the part of Philippine authorities, however, will not help government officials evade prosecution; but rather, owing to the gravity and seriousness of this form of human rights violation, invite a preliminary examination from The Hague instead.
The principle of complementarity precisely means that the ICC will step into the picture if the state party exhibits a lack of willingness or ability to impartially and competently prosecute and investigate such crimes punishable under the Rome Statute.
Wittingly or unwittingly, government is courting attacks from the international human rights community. Officials cannot avoid responsibility for entrenching the culture of impunity characterizing extrajudicial executions. State functionaries cannot avoid investigation and prosecution under the Rome Statute of the ICC as long as they remain alive and capable of standing trial. Crimes under the statute are imprescriptible.
Article 29 (Non-applicability of statute of limitations) of the Rome Statute provides: “The crimes within the jurisdiction of the Court shall not be subject to any statute of limitations.” It means that the lapse of time will not preclude anybody’s subjection to investigation, prosecution, and trial for the gravest crimes punishable under the statute, including war crimes, genocide, and crimes against humanity.
Government officials will eventually have to contend with Article 28 (Responsibility of Commanders and Other Superiors) of the Rome Statute. It provides:
“In addition to other grounds of criminal responsibility under this Statute for crimes within the jurisdiction of the Court:
(a) A military commander or person effectively acting as a military commander shall be criminally responsible for crimes within the jurisdiction of the Court committed by forces under his or her effective command and control, or effective authority and control as the case may be, as a result of his or her failure to exercise control properly over such forces, where:
(i) That military commander or person either knew or, owing to the circumstances at the time, should have known that the forces were committing or about to commit such crimes; and
(ii) That military commander or person failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.
(b) With respect to superior and subordinate relationships not described in paragraph (a), a superior shall be criminally responsible for crimes within the jurisdiction of the Court committed by subordinates under his or her effective authority and control, as a result of his or her failure to exercise control properly over such subordinates, where:
(i) The superior either knew, or consciously disregarded information which clearly indicated, that the subordinates were committing or about to commit such crimes;
(ii) The crimes concerned activities that were within the effective responsibility and control of the superior; and
(iii) The superior failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.
Once the ICC prosecutor turns her sight on the Philippines, the government, just like now, will be on the defensive. This spectacle will highly detract from the essential human rights agenda that President Duterte, almost instinctively, has embarked on earlier on in his presidency.
The gruesome killings will undermine and eventually destroy the government’s legitimacy. The spate of killings will certainly lead to political instability. The international community will not rest until and unless these human rights violations are stopped.
Paradoxically, President Duterte’s human rights agenda – and ultimately, we, the people – will be the one to suffer due to these worst forms of human rights violations called crime against humanity of murder. – Rappler.com
The author serves as the Associate Director of Graduate Programs of Indiana University Robert H. McKinney School of Law (stated only for purposes of showing affiliation). He holds a Master of Laws degree in Human Rights (University of Hong Kong; Honors) and a Master of Laws in American Law for Foreign Lawyers (Indiana University Robert H. McKinney School of Law). He worked as a journalist of Ang Pahayagang Malaya, The Manila Times, The Philippine Post, Pinoy Gazette, UCANews and ISYU Newsmagazine. He is a lifetime member of the Integrated Bar of the Philippines. The views expressed here exclusively belong to the author.