The War on Human Rights: Countering Duterte’s dismissal of the ICC Probe

Aisiri Raj, Rahul Rajasekar and Lekha Suki make a case for extending International Criminal Responsibility to Filipino President Duterte and the law enforcement officials for their failure to guarantee the right to life and protect their civilians from the unjustified use of force by the police officials. 

In June 2021, the Prosecutor of the International Criminal Court (ICC) requested judicial authorisation to investigate extrajudicial killings in the Philippines, bringing Philippine President Duterte’s ‘War on Drugs’ campaign back into the spotlight. Since 2016, over 7,000 such killings have been reported, and only one instance resulted in the conviction of police officials for the use of excessive force. However, President Duterte is largely dismissive of the probe, asserting that the War on Drugs is a sovereign exercise in the interest of national security and justifying extrajudicial killings as the law enforcement personnel’s right to self-defence. This article analyses the failure of the State to guarantee the right to life and to protect its civilians from the unjustified use of force by police officials in the Philippines. 

The Justification of Self-Defence under International Human Rights Law 

Under the assertion of self-defence, the wide-ranging powers granted to police forces in the Philippines do not follow the requisite due process obligations to conduct investigations and collect evidence but instead use lethal and unjustified force on ‘mere suspicion’ that individuals might be in possession of illicit drugs. According to the Office of the High Commissioner of Human Rights (OHCHR) Principles on the Use of Force and Firearms by Law Enforcement, force can only be used as a last resort when other means are ineffective. The absence of verbal warnings and directions by police to surrender violates the binding principles of necessity and proportionality under the general principles governing the use of force. This principle has been recognised by the Supreme Court of Philippines, which held that the presence of an ‘imminent threat’ is the required threshold for exercising proportionate self-defence in the course of public duty.  

The Philippines, being a State Party to the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR), must guarantee the right to life to all its civilians. The justification of self-defence is not absolute in International Human Rights Law (IHRL), where the right to life is non-derogable, and its deprivation cannot be arbitrary. The blanket justification of self-defence by the law enforcement was similarly invoked in Suarez De Guerrero v Colombia (Communication No 45/1979) and was rejected by the United Nations (UN) Human Rights Committee on the grounds that disproportionate killing of suspects is an arbitrary deprivation of the right to life under Article 6(1) of the ICCPR.  

Further, the acts of the police officials violate the drug suspect’s right to fair trial under Article 10 of the UDHR by denying them the opportunity to be heard and the right to legal counsel. The arbitrary manner in which the killings were carried out violates the requirement of presumption of innocence under Article 14(2) of the ICCPR, whereby a suspect’s guilt must be determined by affording them a fair and impartial trial. This arguably represents a complete failure of the constitutional machinery as well as the judiciary in the Philippines in ensuring access to justice. The Philippines has violated its obligations under IHRL since the acts of law enforcement do not constitute a justified use of self-defence which, as explained below, is a relevant finding for the ICC’s jurisdiction to prosecute. 

Criminal Responsibility for Crimes against Humanity under International Criminal Law  

According to the Special Prosecutor’s Office of the ICC, the actions taken pursuant to the “War on Drugs” policy may constitute crimes against humanity under Article 7 of the Rome Statute. The authors are of the opinion that the War on Drugs satisfies the elements of Article 7 for the following reasons: 

  1. First, it is an organised state-sanctioned policy with large-scale, systematic violence committed against the civilian population. 
  1. Secondly, President Duterte’s explicit orders require law enforcement to arbitrarily kill all drug suspects, indicating the presence of mens rea to carry out such acts. 
  1. Lastly, mens rea is further evident in the actions of the State by granting complete impunity from prosecution to the police responsible for such mass atrocities and perversely rewarding them for extrajudicial killings

The large-scale and widespread nature of this deprivation of life constitutes a systematic ‘murder’ of civilians under International Criminal Law (ICL), specifically under Article 7(1)(a) of the Rome Statute. The proximity between IHRL and ICL implies that serious violations of human rights are regarded as crimes against humanity. For instance, the International Criminal Tribunal for the former Yugoslavia in Prosecutor v Karadzić (Case no IT-95-5/18-T, 6 April 2009)  noted the confluence between the deprivation of human rights and crimes against humanity in instances of torture and rape, as an attack on human dignity. This can be reasonably applied to the present case as murder in the form of extrajudicial killings are IHRL and ICL violations worthy of prosecution by the ICC.  

President Duterte’s claims that the ICC has no jurisdiction over the Philippines due to its withdrawal from the ICC in 2019. However, international criminal responsibility would be extended to President Duterte and the law enforcement officials responsible for mass atrocities committed, as a termination of consent to the Rome Statute does not constitute immunity from prosecution since the ICC retains jurisdiction over crimes committed during the time the Philippines was a State Party from 2011 to 2019.

Failure of R2P Obligations 

The refusal of the Filipino Government to acknowledge the human rights violations, investigate and order State agents to stand down, is reflective of the failure of its responsibility to protect (R2P) obligations to its civilians. This norm places an obligation on States to guarantee to their civilian population the basic human rights of safety and security to prevent mass atrocities in their territory.  

Pillar I of R2P emphasises the sovereign responsibility to monitor and prevent any atrocity before it occurs through effective cognisance, sanction, monitoring and fair trial.  In casu, the existing state structures such as the National Prosecution Service under the Department of Justice required to initiate prosecutions on human rights violations, the National Ombudsman, which is constitutionally empowered to undertake investigations in cases of unlawful and illegal acts of the police, and the National Human Rights Council, have failed to prevent mass killings and protect the rights of the civilians. The welfare approach of R2P places a responsibility on the Philippines to protect and guarantee the welfare of its population. However, Duterte’s government deems countering narcotics through extrajudicial killings as the most suitable way to handle the drug problem.  

The international community has remained silent over the UN Human Rights Council’s failure to investigate the extrajudicial killings in the country. As Gallagher et al note, Association of South East Asian Nations (ASEAN) States, China and Russia value diplomatic relations and the principle of non-interference, and have maintained that the War on Drugs is a domestic concern, legitimising the stance of the Filipino Government. Therefore, the initiation of the ICC Probe is a means of upholding Pillar II of the R2P, the responsibility of the international community to assist States in protecting their populations, as it attempts to launch an international investigation to punish President Duterte and the law enforcement officials, who are accountable for the mass killing of their population. Therefore, it is necessary for the rest of the international community to take collective action and support the work of the UNHRC and the ICC to ensure justice for the victims of state violence in the Philippines.  

Aisiri Raj, Rahul Rajasekar & Lekha Suki are fourth year Law (Honours) Students at School of Law, Christ University, Bengaluru, with academic and professional experience in International Human Rights Law, Constitutional Law and Public Policy in India.