The decision by a panel of judges of the International Criminal Court (ICC) to authorize a formal investigation of crimes against humanity by the government of Philippines President Rodrigo Duterte is a welcome development, even if it is long overdue.
Duterte has been in office since 2016, and he immediately began carrying out his policy of having the police seek out and kill suspected drug users. By now, the police acknowledge about 8,000 such killings, most at the hands of their own forces. The remainder are attributed to vigilante groups that operate freely without risk of interference by the police. Human rights organizations and others estimate that the actual number of such killings is approximately three times the number acknowledged by the police.
Philippine police attribute many of these killings to shoot-outs with drug traffickers. If that were the case, one might expect large numbers of police to have been killed or wounded. In addition, of course, as in other situations of such conflict, one would expect the number of victims with non-fatal wounds to far outnumber those killed. In the Philippines, virtually all the casualties are among the alleged drug traffickers, and the victims do not survive. This tends to support the claims by many family members that those killed were already in the custody of the police and that the deaths were the result of executions rather than shootouts.
In an attempt to evade a formal investigation and indictments by the ICC, Duterte in March 2018 had the Philippines rescind its ratification of the Rome Statute, the treaty establishing the international court. Withdrawal from the treaty went into effect a year later, in March 2019. In deciding to approve a formal investigation of crimes under the court’s jurisdiction committed in the Philippines, the ICC panel held that the treaty still applies to crimes against humanity that were committed prior to the withdrawal, while the Philippines was bound by the Rome Statute’s provisions. This is an important legal development. It reinforces similar decisions reached by the ICC and indicates to other governments that they may not obtain retroactive impunity for their crimes by withdrawing from the treaty for the ICC.
Another important element of the judicial panel’s decision is that it shows that the concept of crimes against humanity does not apply only in circumstances of armed conflict. The first indictments for crimes against humanity took place in the Nuremberg trials following World War II. At that time, the indictments were limited to grave crimes committed on a large scale during the war. They did not cover crimes by the Nazis in the pre-war period. In contrast, when the treaty establishing the ICC was drafted, the authors made it clear that they intended the term also to apply to crimes such as the murder of a distinct sector of the population on a large scale — as in the Philippines — when committed during peacetime.
Duterte has insisted that he will never stand trial before the ICC. His term as president expires in 2022, and he cannot stand for re-election. It is widely expected that his daughter, Sara Duterte, who succeeded him as Mayor of Davao City, will run to succeed him as president. It is possible that Rodrigo Duterte himself will be a candidate for vice president. By holding on to power, the Dutertes may believe that they can guarantee that he will not stand trial. Perhaps. But it is worth noting that it is very difficult to predict how such matters will develop. President Omar al-Bashir of Sudan was indicted by the ICC in 2009 and 2010 for war crimes and genocide in Darfur. He long evaded arrest. More than a decade later, his government was overthrown. He is now in prison and the current government of Sudan has said he will be turned over to the ICC.
President Duterte is not the first leader in the Southeast Asia region to carry out mass summary executions of alleged low-level drug users and others in slum neighborhoods suspected of participation in petty crimes, though he has probably done so on a larger scale than any of his predecessors. Perhaps he learned from their example. In their day, such leaders as President Suharto of Indonesia and Prime Minister Thaksin Shinawatra of Thailand also pursued such policies. If the investigation of Duterte by the International Criminal Court leads to an indictment, it may send an important signal to others in the region and elsewhere that such policies are not permissible.