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Obligations of states

"The so-called war-on-drugs campaign affected certain segments of the population disproportionately."

 

Taking into consideration the elements of the crime against humanity as defined under the Rome Statute which we discussed extensively in the preceding segment of this series, and with the Pre-Trial Chamber having promulgated its decision upon the request by the Prosecutor to proceed with the investigation, the same Chamber comes up with its own determination as to whether the circumstances of the case measure up to the elements of the crime as enumerated in the Rome Statute. 

On the element of whether an attack against a civilian population is present, the Chamber notes “a clear pattern of killings can be discerned covering the main period under examination, i.e. 1 July 2016 – 16 March 2019, and extending to the territory of the Philippines at large. This is a conclusion that can be drawn from the analysis of the Prosecutor’s submissions and the supporting material in the preceding section.”

As far as the Chamber is concerned, “a course of conduct, or an ‘overall flow of events’, is clearly discernible. Accordingly, the killings amount to an ‘attack’ within the meaning of Article 7(2)(a) of the Statute. In this context is noted that although the intensity of this course of conduct reduced on two occasions for relatively short periods of time following government decisions to suspend aspects of the so-called ‘war on drugs’ campaign, the killings did not stop completely and in any case the disruptions were only temporary.”

It further appears, based on the available material as analyzed in the preceding section, that “the killings were directed against persons allegedly associated with the use and trafficking of illegal drugs. Thus, the attack targeted a civilian population within the meaning of Article 7(1) of the Statute.”

At this juncture of the decision, the Chamber expresses some consideration regarding the international legal framework for drug trafficking and the obligations of States in this regard. It notes the instruments to which the Philippines is a State party signatory like: 1961 Single Convention on Narcotic Drugs, 1961, as amended by the Protocol amending the Single Convention on Narcotic Drugs, 1961,176 the 1971 Convention on psychotropic substances, and the 1988 United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances. These instruments make it the duty of States to make drug trafficking a criminal offence under domestic law and to prosecute their perpetrators with appropriate penalties in accordance with the law.

The Chamber also sets a reminder of the States’ duties under human rights law, citing legal instruments for the protection of human rights, including the International Covenant on Civil and Political Rights, the 1988 United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, and the Second Optional Protocol to the International Covenant on Civil and Political Rights. 

In the Chamber’s estimation, the killings committed between 1 July 2016 and 16 March 2019 in the Philippines as part of the so-called ‘war on drugs’ campaign cannot be legitimate anti-drug law enforcement operation on the part of the Philippine authorities. In particular, the Chamber says, the so-called ‘war on drugs’ campaign “did not incorporate any formal and reviewable decision-making system in individual cases, and did not afford the interested and affected persons a serious opportunity to participate in the process, or to contest the claims against them.” 

Based on available information, President Rodrigo Duterte has publicly encouraged extrajudicial killings in a way that is “incompatible with a genuine law enforcement operation, xxx persons were targeted based on their inclusion of lists of persons alleged to be involved with illegal drugs, but those lists were arbitrarily drawn up, it appears that non-state actors, or vigilantes, were significantly involved in the so-called ‘war on drugs’ campaign, with the support of the Philippine security forces.” 

Moreover, there is available information to show that the so-called ‘war on drugs’ campaign affected certain segments of the population disproportionately, with victims more likely male, between 20 and 40 years old, and, if they lived in a city, resided in shantytowns or in and of the many pockets of poverty across the metropolis, and a disproportionate number being jobless or working in the informal economy, possibly as construction workers, tricycle drivers, ‘scavengers’, or neighborhood watchmen.

The Chamber reaches this conclusion after considering the following information as submitted by the Prosecutor:

First, the killing of alleged drug dealers and users, or even more broadly ‘criminals’ has been frequently encouraged by Rodrigo Duterte, both during his campaign for Presidency and after becoming President of the Philippines and earlier as Davao City mayor.

Second, the Chamber notes the existence of “a clear link between the killings and the government’s formal anti-drug campaign” as shown in the president’s pronouncement “to get rid of illegal drugs during the first six months of his term” The Chamber also cites the Prosecutor’s submission that the reference to ‘neutralizing’ is used in its euphemistic meaning of ‘killing’ which is supported by records of police insiders stating that in killing persons during purported anti-drug operations, they followed instructions of the government.

Third, the Chamber puts to the task the “consistent reference in the supporting material to lists of persons alleged to be involved with illegal drugs.”

Fourth, the Chamber also takes into account the information that “physical perpetrators were given cash payments, promotions or awards for killings in the so-called ‘war on drugs’ campaign.”

And finally, it also considers the information about the Philippine authorities’ lack of willingness to take meaningful steps to investigate or prosecute the killings. 

I will conclude this series on Saturday.

Topics: Tony La Viña , Obligations of states , crime against humanity , Pre-Trial Chamber , Rome Statute
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