See discussions, stats, and author profiles for this publication at: https://www.researchgate.

net/publication/329305010

The Philippine War on Drugs: International Law Perspectives on the

Extrajudicial Killings under the Duterte Administration

Preprint · November 2018

CITATIONS READS

0 5,469

1 author:

Patricia Eunice Miraflores

Keck Graduate Institute
3 PUBLICATIONS   0 CITATIONS   

SEE PROFILE

Some of the authors of this publication are also working on these related projects:

Philippine War on Drugs View project

Art History View project

All content following this page was uploaded by Patricia Eunice Miraflores on 01 December 2018.

The user has requested enhancement of the downloaded file.

 THE PHILIPPINE WAR ON DRUGS:

INTERNATIONAL LAW PERSPECTIVES ON THE EXTRAJUDICIAL

KILLINGS UNDER THE DUTERTE ADMINISTRATIO​N

Patricia Eunice C. Miraflores

Ho-king Tam

The Hong Kong University of Science and Technology

November 11, 2018

 1

Characterization of the Problem

The ongoing drug war in the Philippines is a controversial policy spearheaded by incumbent

Philippine president Rodrigo Duterte aimed at the “neutralization” of individuals suspected to be

involved in illegal drug cartel networks. 1 He justified the policy by claiming that the Philippines was

widely vulnerable to becoming a narco-state, indicating a pressing need to address this phenomenon

at the grassroots level. Although the Philippine National Police (PNP) has been carrying out its

formal operations, the president has also been quoted during multiple occasions to encourage the

general public to actively kill suspected individuals on the spot. Upon inciting uproar from both

international bodies and domestic human rights activists, the Duterte administration has since

redacted these claims, implying that the president is only meant to humor the people with his crass

remarks. 2 The PNP has also clarified the implications of “neutralizing” alleged drug suspects,

guaranteeing that it entails nothing more than warranted arrests of suspects with due legal processes

intact as far as formal operations are concerned.

Despite these claims, a robust body of evidence shows that the drug war operations carried

out by the PNP alone has led to an estimated 12,000 to 20,000 extrajudicial killings, a significant

portion of which are “collateral damage” killings of innocent civilians for reasons such as mistaken

identity, witness to execution of actual alleged suspects, and family member of suspected dealers. 3

Amnesty International reports that the killings were carried out via direct orders and pressures from a

top-down chain of command with the Duterte administration at the source, an “informal economy of

death” driven by the financial incentives allegedly received by the PNP taskforce and the drug cartel

network itself for the killings. 4

1
​Robert Muggah, "Duterte's drug war in the Philippines is out of control, he needs to be stopped." T
​ he 
Guardian​, January 5, 2017, t​ heguardian.com/global-development-professionals-network/2017/jan/05/ 
rodrigo-dutertes-drug-war-in-the-philippines-is-out-of-control-he-needs-to-be-stopped​.
2
Ibid.
3
Clare Baldwin and Andrew R.C. Marshall, “As death toll rises, Duterte deploys dubious data in ‘war on
drugs’”, ​Reuters​, October 18, 2016, ​www.reuters.com/investigates/special-report/philippines-duterte-data/
4
“Philippines: The police’s murderous war on the poor,” ​Amnesty International,​ last modified January 13,
2017,​ ​www.amnesty.org/en/latest/news/2017/01/philippines-the-police-murderous-war-on-the-poor​.
 2

Compounded by the president’s other controversial remarks and actions violating basic

human rights and rule of law (i.e. rape jokes; impeaching local political figures who oppose him

including the previous chief justice herself; the intense budget cuts on the Commission on Human

Rights), the breadth and violence of these drug war killings have received intense international

backlash. For instance, thirty-eight United Nations Human Rights Council (UNHRC) members have

been actively denouncing his administration 5 and domestic human rights groups have successfully

escalated the issue to the International Criminal Court (ICC) itself. The ICC has been conducting

thorough preliminary investigation of the Duterte administration since 2016. While these attempts are

in place, the drug war persists largely due to local politics and the United Nations Security Council’s

inaction despite pressures from the UNHRC and the ICC.

In this paper, we argue that by several customary international laws on human rights, the

Philippine extrajudicial killings are indeed condemnable. However, we also realize that the

phenomenon does not take place in a legal vacuum exempt from the complexities of national politics.

Thus, we argue that framing the killings as a violation of a peremptory norm condemnable by an

independent, international court would be the most efficient method of prosecution ​–​ an approach the

ICC itself has initiated. In the first two sections, we discuss perspectives of customary international

law and domestic obligations the Philippine state has failed to meet by carrying out the drug war. In

the second and third sections, we discuss the prerequisites and legal powers of the ICC to prosecute

the Duterte administration, overriding the presidential immunity that protects Pres. Duterte from

legal accountability. We also discuss how the ICC can prove the Philippine drug war as a crime

against humanity which is prosecutable by peremptory norm. Finally, we discuss the case study of

Mexico as a point of comparison.

5
Neil Jerome Morales, “Philippines Duterte tells U.N. human rights expert: ‘Go to hell’,” ​Reuters,​ June 3,
2018, ​www.reuters.com/article/us-philippines-duterte-un/philippines-duterte-tells-u-n-human-rights-expert-
go-to-hell-idUSKCN1IZ063​.
 3

International Law Perspectives

Presumption of Innocence and Right To Fair Trial As Customary International Law

By the principles of ​Universal Declaration of Human Rights in 1948 (UDHR), ​the

extrajudicial killings in the Philippines are a clear violation of civil and political rights, specifically

(1) the right to be presumed innocent and (2) the right to fair trial. Articles 11 and 10 in the UDHR

enshrine the guiding principles behind these rights, respectively. Article 11 posits that a person

charged with a penal offence is innocent until proven guilty;6 in which case a person proven guilty

should have been subject to a fair public trial in an independent, impartial tribunal.7

Since its ratification by the United Nations General Assembly, the UDHR has been a source

of customary international laws on human rights. For instance, the right to presumption of innocence

and the right to free trial have been acknowledged as customary laws by renowned treaties (i.e. the

European Convention on Human Rights), domestic military manuals (i.e. Argentina’s Law of War

Manual), national legislations (i.e. China’s Criminal Procedure Code), and now, the UNHRC itself. 8

As Robinson argues, these two rights were derived from core values of natural law and their

widespread practice in states indicates and reinforces ​opinio juris​, making them undisputedly

customary international laws. 9 ​However, the real point of contention is whether or no​ t these two

rights have achieved peremptory norm status (​jus cogens​​).

Arguments against the ​jus cogens​ of the right to presumption of innocence and the right to

free trial have cited incidences of national emergencies in which these rights were forgone. 10 That is,

when states derogate from these two human rights, they usually do so by justifying that they were

6
UN General Assembly. “Universal Declaration of Human Rights” (217 [III] A). Paris: para. 20-21.
7
Ibid., para. 19.
8
International Committee of the Red Cross (ICRC), “Section C. Presumption of Innocence” In Practice
Relating to Rule 100 Fair Trial Guarantees, ​Customary International Humanitarian Law​ (2013),
https://ihl-databases.icrc.org/customary-ihl/eng/docs/v2_cha_chapter32_rule100_sectionc
9
Patrick L. Robinson, “The Right to a Fair Trial in International Law, with Specific Reference to the Work
of the ICTY”, ​Berkeley Journal of International Law​ 3, no. 1 (2009): 5, ​bjil.typepad.com/Robinson_macro
10
Ibid., 6.
 4

fairly done in a context of “exceptional circumstances”.11 ​The discourse surrounding whether or not

these two rights are ​jus cogens i​ s especially relevant to the Philippine case study because the Duterte

administration frames the problem as a national emergency in which the drug war is an exercise of

the state’s right to security. 12 As foreign secretary Peter Cayetano put it:

“As a sovereign and democratic country led by our duly-elected President, we are on track in

salvaging our deteriorating country from becoming a narco-state, or a state held hostage by the rich

& powerful who ignore the plight of the poor, powerless & marginalized, or both.” 13

The Duterte administration argues that the Philippines is quickly escalating into a narco-state,

characterized by robust underground drug cartels pervading megacities, and the judiciary branch is

failing to expedite the trial processes of these drug personalities. Following this logic, the

“neutralization” policy is a legitimate response to a state of emergency -- one in which the rights to

innocence and free trial, although considered customary international laws, can be forgone. However,

as findings of the United Nations Office on Drugs and Crime (UNODC) have uncovered, Duterte’s

claims that the drug problem has escalated into a national emergency are mostly inaccurate

propaganda. For instance, his flagship anti-drug law enforcement department, the Philippine Drug

Enforcement Agency (PDEA), claims to have found 6.7 million Filipino drug addicts as opposed to

the significantly lower count of 1.8 million, based on actual data collected by the ​Philippine

Dangerous Drugs Board (DDB), the official illegal drug policy-making body since 1971. 14 The

UNODC itself indicated that the Philippines has below global average, low-prevalence rate of drug

users and that the anti-drug operations have actually exacerbated the problem instead of prevent it. 15

11
Ibid., 7.
12
Eric Posner, “The case against human rights”, ​The Guardian,​ December 4, 2014,
www.theguardian.com/news/2014/dec/04/-sp-case-against-human-rights​.
13
Mara Cepeda, “PH 'salvaging' self through drug war, Cayetano tells U.N.”, ​Rappler,​ September 30,
2018, ​rappler.com/nation/213170-cayetano-speech-united-nations-general-assembly-2018-philippines
14
Baldwin and R.C. Marshall, “As death toll rises’”, ​Reuters.​
15
“Philippines: Duterte’s 100 Days of carnage,” Amnesty International, last modified October 7, 2016,
www.amnesty.org/en/latest/news/2016/10/philippines-dutertes-hundred-days-of-carnage/
 5

Specifically, the drug cartel kingpins are now killing off their own dealers in fear they would

testify against them to the police. Most of these dealers live in the slums, making them susceptible to

crime as well as the extrajudicial killings carried out by the police and their own employers​. Thus,

the drug war policy encourages not only the killings carried out by the official task force but also

those by the drug cartel kingpins, the masterminds, themselves to avoid facing the consequences to

their crimes. ​All these findings undermine the claim that there exists a national emergency with

regards to illegal drug usage, let alone that the drug war policy is a legitimate response to it. If

anything, it’s the implementation of the drug war policy that instigated a national emergency by

causing the extrajudicial killings of thousands.

Since the​ jus cogens s​ tatus of the rights to innocence and fair trial are still debated, a more

direct approach involves another relevant thread of legal argument on something more widely and

easily accepted as a peremptory norm: prohibition of genocides and crimes against humanity. Some

argue that the damage accrued from the Philippine war on drugs can already be categorized as the

equivalent of genocidal activity, which holds ​jus cogens​ status. Since the prohibition against

genocide is openly cited as a peremptory norm by multiple sources wherein absolutely no derogation

can be permitted, 16 and if the Philippine drug war is successfully proved to be the equivalent of a

genocide, then the Duterte administration and the perpetrators of the extrajudicial killings can be

legally bound by the International Criminal Court for crimes against humanity. As mentioned earlier,

the ICC has already taken legal action towards the Duterte administration’s role in the Philippine

drug war, and this debate can become the basis of its next approach, especially in convincing the UN

Security Council to step in. This will be discussed in the third segment of this paper.

16
Jan Wouters and Sten Verhoueven, “The Prohibition of Genocide as a Norm of Jus Cogens and Its
Implications for the Enforcement of the Law of Genocide,”​ International Criminal Law Review​ 5, no. 1
(2005): 401-416, accessed November 11, 2018, ​heinonline.org/HOL/LandingPage?handle=hein.journals
 6

The Philippine State’s Obligations, UN Membership, and Domestic Laws

As demonstrated above, the Philippine drug war violates crucial aspects of customary

international law related to human rights. By default, states are expected to uphold their

constituencies’ human rights and to protect them by obeying the international guidelines of human

rights laws. As the UDHR provides, states are responsible for preserving, respecting and satisfying

human rights in three ways: (1) by preventing from or diminishing the enjoyment of human rights;

(2) by deterring individuals and groups from harm to fight against human rights abuses and; (3) by

upholding the human rights basis through executing action positively. 17

Therefore, it is the obligation of states to protect their constituencies’ human rights, especially when

they are United Nations members.

Human rights are composed by several aspects of life and society, enabling people to enjoy

rights protecting human dignity, freedom, equality, justice and peace, regardless of race, gender,

language, religion, and political affiliation. 18 The United Nations also upholds that states ought to

“ensure that a human being will be able to fully develop and use human qualities such as intelligence,

talent, and conscience and satisfy his or her spiritual and other needs.” 19 Similar to the rights to

presumption of innocence and fair trial, these principles have greatly informed international and

domestic laws alike. That is, it is customary law that human rights ought to be protected by states

while concurrently executing their political affairs and administrative orders.

The Philippine drug war is an example of blatant disregard for human rights amidst the

fulfillment of administrative orders carried out by the Philippine state, indicating a clear violation of

its legal obligations as a United Nations member. In this section, we will discuss the Philippine

17
​"Human Rights Law," United Nations, accessed November 2, 2018.​ ​un.org/en/sections/universal- 
declaration/human-rights-law/index.html
18
"Human Rights Basis," The Advocates for Human Rights, accessed November 2, 2018.
theadvocatesforhumanrights.org/human_rights_basics#Why%20are%20HR%20Important
19
Ibid., para. 5.
 7

state’s obligations in protecting human rights, as illustrated by the conflicts between the Duterte

administration and the international human rights organizations that have attempted to intervene.

Domestic Laws and State Obligations to Uphold Human Rights

As a state party of the United Nations since its conception in 1942, the Philippines has a long

history of commitment to upholding human rights. As a result, domestic laws have been written and

ratified by the encouragement of the International Bill of Human Rights, further consolidated by the

Universal Declaration of Human Rights, International Covenant on Civil and Political Rights and

International Covenant on Economic, Social and Cultural Rights. 20

For instance, the Philippine Bill of Rights, as enshrined in Article III of the 1987 Philippine

Constitution, contains 22 sections of unalienable rights enjoyed by Filipino citizens. Philippine

domestic laws itself hold that in the context of the Philippine drug war, alleged criminals’ lives ought

to be protected and respected. 21 The Philippine Commission on Human Rights (CHR) is the

department at the forefront of upholding the human rights of alleged criminals most vulnerable to the

drug war. The CHR is strongly against the extrajudicial killings on the basis of sections under the

Philippine Constitution, such as Article III of Section 1 and Article II of Section 11, which provide

that (1) “no person shall be deprived of life, liberty or property without due process of law nor shall

any person be denied the equal protection of the laws” and (2) “the State values the dignity of every

human person and guarantees full respect for human rights” respectively, thus forbidding the

extrajudicial killings of suspected drug personalities. 22 23

Similar to most other international and domestic human rights declarations, the Philippines’

universal guidelines on human rights protection are plagued by the problem of ambiguity and

20
UN General Assembly, “Universal Declaration of Human Rights,” ​International Bill of Human Rights
(1948), ​ohchr.org/documents/publications/compilation1.1en.pdf​.
21
​Jodesz Gavilan, "Things to know: Human rights in the Philippines," Rappler, last modified September 19, 
2017, r​ appler.com/newsbreak/iq/114698-human-rights-philippines​.
22
Ibid., para. 29
23
Ibid., para. 30
 8

tendency for inactionable principles susceptible to misuse. 24 However, there also exists more specific

laws tailored to protect accused persons in Philippine domestic laws. For instance, Section 19 of the

Philippine Constitution provides that for prisoners and detainees, there ought to be “no cruel,

degrading or inhuman punishment may be inflicted - even death” during emergency situations,

including those that warrant martial laws. 25 As discussed earlier, the drug war was not even

recognized as a real national emergency by international bodies and local departments alike. Thus,

the Philippines has the state responsibility to ensure its administrative orders do not overstep human

rights based on its long practice of protecting and upholding them even under emergency conditions,

as enshrined by the Constitution and consolidated by domestic laws on human rights. Hence, the

Duterte administration’s decision to neglect these basic principles is a violation of the Philippine

state’s deeply ingrained responsibility to uphold its constituencies’ human rights.​ 26 ​As Pres. Duterte

has stated about his stance in the issue: “When it comes to human rights, or whoever rapporteur it is,

my order to you: Do not answer, do not bother.” 27

Human Rights Organizations

The Philippine extrajudicial killings have been thoroughly documented from the grassroots

level by human rights organizations, most notably by the Human Rights Watch (HRW). However,

there have been three major obstacles to the HRW’s efforts:

i. Trustworthiness of evidence

First, there’s the issue of subjectivity. The Philippine National Police (PNP) has cited the lack

of trustworthiness of the personal testimonies collected by the HRW, which are the primary basis of

their claims that the police are ​intentionally ​carrying out extrajudicial killings. Moreover, the PNP’s

24
Peter Stork, “The Ambiguity of Human Rights in the Face of Escalating Violence” (presentation, ANU
Emeritus Faculty Meeting, Oct 17, 2007)
25
Phil. Constitution art. VI, § 29.
26
"‘Do Not Answer’: Duterte tells police, soldiers not to cooperate in any drug war probe," Interaksyon,
last modified March 2, 2018, accessed November 2, 2018. ​interaksyon.com/breaking-news/2018/03/02/
121576/do-not-answer-duterte-tells-police-soldiers-not-to-cooperate-in-any-drug-war-probe/
27
Ibid., para. 3.
 9

official response is that all the extrajudicial killings that have taken place so far were carried out as

acts of self-defence. 28 That is, all the Filipino policemen who carried out the killings and are now

facing prosecution, they all claim to have acted out of self-defence since the drug suspects who were

ordered to arrest, were armed and threatened to inflict harm, in which case polices have the legal

right to shoot first. Controversially, it exists counterfactual evidences that suggests most of the police

actually plant evidences near the corpses of the suspects they killed “out of self-defence” to

consolidate their claims. 29

Given that these killings transpire in slums where evidence can be erased or planted, and

corpses are as easy to frame as either the victim or the criminal, it’s increasingly difficult for the

press, local citizens, and international bodies to distinguish and assess the trustworthiness of these

conflicting testimonies, triggering disputes between the two parties. In light of the highly polarized

debates, the Duterte administration continues to operate in this gray area, refusing to entertain

international intervention and consistently repudiating the claims against the illegality of the national

police’s actions. 30 Thus, a consensus towards an actionable human rights goal is hardly ever reached.

ii. Threatening International and Domestic Human Rights Advocates

Since the launch of the drug war policy, Pres. Duterte opposed interference from international

parties, most notably the UN special human rights rapporteur. The Duterte administration is actively

creating a dangerous, intimidating atmosphere for human rights specialists and advocates to express

their concerns about the drug war. For instance, Pres. Duterte has threatened to initiate the murder of

human rights activists who have negative comments toward his policy, 31 telling them: "I will include

you [human rights activists in the death toll] because you are the reason why [drug suspect] numbers

28
“Philippines’ Duterte tells police, soldiers not to cooperate in any drug war probe,” Arab News, last
modified March 2, 2018, ​arabnews.com/node/1257526/world
29
“Duterte: Not EJK if killing is in self-defense,” ABS-CBN News, last modified December 27, 2016,
/news.abs-cbn.com/news/12/27/16/duterte-not-ejk-if-killing-is-in-self-defense
30
​Tom Miles, "Nothing to see here, Philippines tells U.N. Human Rights Council," R ​ euters​, May 8, 2017 
reuters.com/article/us-philippines-un/nothing-to-see-here-philippines tells-u-n-human-rights
31
​Robert Muggah, "Duterte's drug war." T ​ he Guardian​.
 10

swell." 32 Other remarkable examples of the Duterte administration successfully shutting down its

biggest critics are discussed in the “ICC Intervention and Local Political Hurdles” segment.

Interventions Through International Human Rights Laws

As a response to the widespread violence of the Philippine drug war and the incumbent

political regime’s failure to uphold its state obligations, international human rights laws should be

applied to cease the relentless extrajudicial killings. Last June, the Philippine government was urged

to cooperate with the UN by thirty-eight UNHRC member-states calling for an objective,

UNHRC-led evaluation of the drug war regarding the state of human rights. The Philippine police

have only declared a total of 4,000 “collateral damage” deaths as of June 2018 which local human

rights groups deemed a gross understatement compared to other reliable statistics and the robust body

of witness accounts. 33 On these grounds, the thirty-eight member-states have urged the Duterte

administration to cooperate with the UN without any prerequisites or obstructions that can impede or

skew the objective assessment of the phenomenon. 34

Although the Philippine drug war has been raised to the level of an international human rights

concern, the actualization of the investigation process is full of obstacles. Despite the collective

petitions from domestic human rights organizations, foreign governments, and international parties

alike, the UN and the ICC have suspended their attempts at investigating because of tarrying progress

and burdensome workloads, mostly due to the resistance of a Duterte-ruled Philippine state to be

micromanaged. Furthermore, permanent UN Security Council member-states such as Russia and

China have strong international treaty relations with the Duterte administration, and have refused to

participate in urging the Philippines to cooperate with the UNHRC. Thus, the success of using

32
​Joseph Hincks, "Human-Rights Defenders Are Now in the Philippine President's Crosshairs," TIME, 
November 29, 2016: para. 4 t​ ime.com/4584478/dutere-threatens-to-kill-human-rights-activists/
33
​"3
​ 8 UNHRC member-states urge PH to cooperate in human rights assessment," ABS-CBN News, 
accessed November 2, 2018. ​news.abs-cbn.com/news/06/23/18/38-unhrc-member-states-urge-ph 
-to-cooperate-in-human-rights-assessment
34
Ibid.
 11

international human rights laws to stop the killings are still largely politicized. A stronger approach is

needed to frame the phenomenon as something that can be escalated to the level of intervention that

warrants the exercise of a peremptory norm - or the creation of one - that can override these

impediments.

ICC Intervention and Local Political Hurdles

The Duterte administration has successfully curbed its local critics’ attempts at domestic

prosecution by claiming presidential immunity. The doctrine was provided in the 1973 Philippine

Constitution (Article VII, Section 7), stating that the president is “immune from suite during his

tenure”. This provision was not retained in the most recent 1987 constitution which was ratified after

the Philippines was freed from dictatorship.35 However, the Duterte administration’s rationale for

claiming presidential immunity today is “to assure the exercise of presidential duties and functions is

free from any hindrance or distraction”, quoting from the 1988 case Soliven v. Makasiar in which

high-profile politicians were allowed to claim immunity given special circumstances.36 For the same

reasons Duterte’s claim to a “national emergency” is regarded as flawed and misinformed, his claim

to presidential immunity is highly criticized. Still, Duterte has successfully avoided prosecution

because​ impeachment is a constitutional prerequisite to put an incumbent Philippine president on

trial for his crimes.​ To impeach an incumbent president, at least two-thirds of the lower and upper

legislative chambers should move for the president’s removal from office.

Critics have argued that this prerequisite should only apply to hearings related to basic

presidential duties. They argue that since the drug war and the extrajudicial killings are not part of

Duterte’s official duties as president, he should be immediately prosecutable for them without having

to be impeached first. However, because separation of powers and rule of law are highly imbalanced,

35
“VERA Files Fact Check: ICC can strip off Duterte’s immunity,” ​VERA Files​, last modified March 19,
2017, ​verafiles.org/articles/vera-files-fact-check-icc-can-strip-dutertes-immunity​.
36
Soliven v. Makasiar, 167 SCRA 393, G.R. No. 82585 (November 14, 1988),
lawphil.net/judjuris/juri1988 /nov1988/gr_82585_1988.html​.
 12

both legislative bodies are dominated by presidential allies, making it nearly impossible for critics to

file an official complaint without receiving threats, let alone to get two-thirds of both chambers to

move for the president’s impeachment. In fact, when Pres. Duterte’s most outspoken critic, former

senator Leila De Lima, publicly criticized his claims to presidential immunity, she was faced with

legal charges based on “collective testimonies” from former drug addicts that she herself was

involved in the drug cartel business. With all local human rights advocates successfully silenced or

imprisoned by the Duterte administration, she called for the international community to intervene,

posing the question: “Is the international community prevented from stopping this smaller but

unraveling Holocaust in a Third World country, until the number of killed reaches 10,000, or 50,000,

or 100,000, simply because President Duterte is immune from suit?”37

The principle of complementarity states that the ICC may only begin investigations and

prosecutions when the “national jurisdictions are unable or unwilling to do so genuinely”. 38 As of

late 2018, the ICC decided to exercise international jurisdiction over the Philippine state by putting it

on preliminary investigation, deeming it unable to perform fair domestic trials due to deteriorating

rule of law. More importantly, the ICC is investigating multiple claims on grounds of an unfolding

“crime against humanity” under the Duterte administration. The ICC is legally allowed to prosecute

an entity found to be committing any of the four crimes (genocide, crimes against humanity, war

crimes, crimes of aggression) 39 whose prohibition are broadly acknowledged as ​jus cogens.​ 40 The

killings fit the definition of crimes against humanity which by definition are “serious violations

committed as part of a large-scale attack against any civilian population”. 41

37
Leila De Lima, “Putting a president behind bars,” ​Rappler​, March 11, 2017, ​rappler.com/thought-
leaders/163870-president-duterte-immunity-suit-behind-bars​.
38
International Peace Research Institute, “The principle of complementarity and the exercise of universal
jurisdiction for core international crimes” (seminar, Forum for International Criminal and Humanitarian
Law, Oslo, September 4, 2009).
39
“How the Court works,” ​International Criminal Court (ICC)​, accessed November 11, 2018.
icc-cpi.int/about/ how-the-court-works
40
Wouters and Verhoueven, “Prohibition of Genocide”,​ International Criminal Law Review​ 5,
41
“How the Court works,” ​ICC​, 3.
 13

However, there is no guarantee that the ICC investigations will lead to any immediate action

that can​ ​prevent​ ​the extrajudicial killings from transpiring. One very important distinction to make in

this debate is ​prohibition versus prevention.​ While the prohibition of the four crimes are​ jus cogens,​

the prevention of has yet to carry the same breadth of acceptance in international law. Moreover, the

ICC itself does not have its own enforcement body and so it depends on collaborations with other

countries when making arrests and transferring detainees to the ICC detention center in Hague. 42

Thus, as former Sen. De Lima pointed out, without the urgency for actual preventive measures, the

extrajudicial killings would transpire and most likely end in genocide-level human rights violations.

In recent decades, there has been a growing body of research arguing that the​ prevention ​of

crimes against humanity has ​jus cogens s​ tatus. The Rwandan Genocide of 1994 reopened this

discussion and strengthened the impetus for a new peremptory norm wherein international bodies

ought to intervene to ​prevent​​ mass murders that have escalated to genocidal activity despite the

refusal of some states to politically acknowledge it as a genocide or crime against humanity.43 A

recent study found the Philippine drug war already exhibits the characteristics of genocidal activity at

all levels of “classification, symbolization, dehumanization, organization, polarization, preparation,

extermination and denial”. 44 While the prevention of crimes against humanity remains highly

debated and urgent action is not guaranteed, the Philippine drug war adds to the growing evidence

that the lack of ​jus cogens​ to prevent crimes against humanity often perpetuates them. From this

angle, one can argue that the non-prevention of these crimes conflicts with the​ jus cogens​ to prohibit

them in the first place.

Case Study as Comparison

42
Ibid., 14.
43
Dahlia Simangan, “Is the Philippine “War on Drugs” an Act of Genocide?”, ​Journal of Genocide
Research​ 20, no.1 (2018): 68-89, ​www-tandfonline-com.ccl.idm.oclc.org/doi/full/10.1080/14623528.2017.
1379939​.
44
Ibid., 88.
 14

Lastly, we will briefly discuss the necessity for the Philippines to cease the drug war by

comparing it to an analogous case study: the Mexican drug war. In 2006, the Mexican government

launched an intensive anti-drug campaign, escalating into the homicide of an estimated 130,000

people regardless of their involvement in the drug cartels. The President waged war against the drug

cartels with the assistance of the United States, commanding Mexican military forces to execute only

drug suspects but what transpired were large-scale human rights violations including rape and

torture. 45 Many international analysts have likened the Philippine drug war to Mexico’s, with the

former’s death toll predicted to approach the latter’s by the end of the Duterte administration.

Regardless of the nuances of their respective political contexts and international relations with the

United States and focusing instead on the breadth of human rights violations,​ we believe there are

similarities between the Philippine and Mexican drug wars based on the prevalence of extrajudicial

killings and the role of enforcers in perpetuating them. Therefore, the failure of deterring the

Philippines drug war could escalate into a larger human rights concern akin to an international armed

conflict.

In Bangladesh, an emerging anti-drug campaign allegedly modeled after the Philippine drug

war is instigating fear of large-scale extrajudicial killings. So far, there have been 50 drug suspects

killed by the police force. 46 The growing trend of drug war extrajudicial killings should be seriously

considered by international lawmaking bodies to prevent the detriment of human rights as

authoritarianism gains traction even in long-standing liberal democratic states. While the Philippine

drug war has not yet ceased, there is a possibility that international bodies with military powers and

other international agents will interfere with the campaign out of their own political interests,

45
​Brianna Lee and Danielle Renwick, "Mexico's Drug War," Council on Foreign Relations, last modified May 
25, 2017, accessed November 3, 2018,​ ​cfr.org/backgrounder/mexicos-drug-w​ar​.
46
​Michael Safi and Shaikh Azizur Rahman, "Bangladesh's Philippines-style drugs war creating 
'atmosphere of terror'," The Guardian, May 25, 2018, 
theguardian.com/world/2018/may/25/bangladeshs-philippines 
-style-drugs-war-creating-atmosphere-of-terror​.
 15

increasing the seriousness of the disputes between the government and drug suspects, escalating the

violation of human rights. Furthermore, the replication of the same trend in other countries should be

a cause for concern for international law, because as extrajudicial killings ensue without preventive

measures, so will the escalating violations on all human rights.

Conclusion

To summarize, we argue that the Philippine drug war has led to large-scale violations of

human rights enshrined by customary international laws and domestic laws alike. As the ICC’s recent

intervention shows, the Philippine drug war can be condemned by international bodies due to the

widely accepted peremptory norm of prohibition. However, a stronger case needs to be made for

urgent preventive action to transpire. Further complicating these legal processes are local and

international political stakeholders, as the case study of Mexico embodies. Moreover, the Philippine

drug war is arguably a product of the more authoritarian, strongman politics introduced by the

Duterte administration. The recent increase in illiberal democracies characterized by deteriorating

rule of law can make societies like the Philippines more susceptible to widespread human rights

violations and should be a cause of concern to international law.

 16

Works Cited

"38 UNHRC member-states urge PH to cooperate in human rights assessment.” ABS-CBN

News. Accessed November 2, 2018. ​news.abs-cbn.com/news/06/23/18/38-unhrc-member

-states-urge-ph-to-cooperate-in-human-rights-assessment

Baldwin, Clare and Marshall, Andrew R.C. “As death toll rises, Duterte deploys dubious data in

‘war on drugs’.” ​Reuters​. October 18, 2016. Accessed November 11, 2018.

https://www.reuters.com/investigates/ special-report/philippines-duterte-data/​.

Cepeda, Mara. “PH 'salvaging' self through drug war, Cayetano tells U.N.” ​Rappler.​ September

30, 2018. Accessed November 11, 2018. ​https://www.rappler.com/nation/213170

-cayetano-speech-united-nations-general-assembly-2018-philippines-drug-war​.

De Lima, Leila. “Putting a president behind bars.” ​Rappler.​ March 11, 2017. Accessed

November 11, 2018. ​https://www.rappler.com/thought-leaders/163870-president-duterte

-immunity-suit-behind-bars​.

"‘Do Not Answer’: Duterte tells police, soldiers not to cooperate in any drug war probe."

Interaksyon. Last modified March 2, 2018. Accessed November 2, 2018.

interaksyon.com/breaking-news/2018/03/02/121576/do-not-answer-duterte-tells-police-soldie

rs-not-to-cooperate-in-any-drug-war-probe/​.

“Duterte: Not EJK if killing is in self-defense.” ABS-CBN News. Last modified December 27,

2016. Accessed November 11, 2018. ​https://news.abs-cbn.com/news/12/27/16/duterte

-not-ejk-if-killing-is-in-self-defense​.

Gavilan, Jodesz.”Things to know: Human rights in the Philippines.” Rappler. Last modified

September 19, 2017. Accessed November 2, 2018.​ rappler.com/newsbreak/iq/11469

8-human-rights-philippines.

Hincks, Joseph. “Human-Rights Defenders Are Now in the Philippine President's Crosshairs.”
 17

TIME.​ November 29, 2016. Accessed November 2, 2018.​ ​time.com/4584478/dutere

-threatens-to-kill-human-rights-activists/​.

“How the Court works,” ​International Criminal Court.​ Accessed November 11, 2018.

https://www.icc-cpi.int/about/how-the-court-works

"Human Rights Basis.” The Advocates for Human Rights. Accessed November 2, 2018. ​theadvo

catesforhumanrights.org/human_rights_basics#Why%20are%20HR%20Important.

"Human Rights Law." United Nations. Accessed November 2, 2018.​un.org/en/sections/universal-

declaration/human-rights-law/index.html​.

International Committee of the Red Cross (ICRC). “Section C. Presumption of Innocence” In

Practice Relating to Rule 100 Fair Trial Guarantees. ​Customary International Humanitarian

Law​ (2013). Accessed November 11, 2018. ​https://ihl-databases.icrc.org/

customary-ihl/eng/docs/v2_cha_chapter32_rule100_sectionc​.

International Peace Research Institute, “The principle of complementarity and the exercise of

universal jurisdiction for core international crimes” Paper presented at the Forum for

International Criminal and Humanitarian Law, Oslo, Norway, September 4, 2009. Accessed

November 11, 2018. ​https://www.fichl.org/fileadmin/fichl/activities/090904_

Seminar_complementarity_and_universal_jurisdiction__Seminar_Concept__as_of_091023.p

df​.

Lee, Brianna and Renwick, Danielle. “Mexico's Drug War.” ​Council on Foreign Relations​. Last

modified May 25, 2017. Accessed November 3, 2018.​ ​cfr.org/backgrounder/mexicos

-drug-war​.

Miles, Tom. "Nothing to see here, Philippines tells U.N. Human Rights Council.” ​Reuters.​ May

8, 2017. Accessed November 2, 2018.​ ​reuters.com/article/us-philippines-un/nothing

-to-see-here-philippines-tells-u-n-human-rights-council-idUSKBN184134​.
 18

Morales, Neil Jerome. “Philippines Duterte tells U.N. human rights expert: ‘Go to hell’.”

Reuters.​ June 3, 2018. Accessed November 11, 2018. ​http://www.reuters.com/article/us-

philippines-duterte-un/philippines-duterte-tells-u-n-human-rights-expert-go-to-hell-idUSKC

N1IZ063​.

Muggah, Robert. ”Duterte's drug war in the Philippines is out of control, he needs to be stopped."

The Guardian.​ January 5, 2017. Accessed November 2, 2018. ​theguardian.com/global

-development-professionals-network/2017/jan/05/rodrigo-dutertes-drug-war-in-the-philippine

s-is-out-of-control-he-needs-to-be-stopped.

“Philippines’ Duterte tells police, soldiers not to cooperate in any drug war probe.” ​Arab News.​

Last modified March 2, 2018. Accessed November 11, 2018. ​http://www.arabnews.com/

node/1257526/world​.

“Philippines: Duterte’s 100 Days of carnage.” ​Amnesty International.​ Last modified October 7,

2016. Accessed November 11, 2018. ​https://www.amnesty.org/en/latest/news/2016/10/

philippines-dutertes-hundred-days -of-carnage/

“Philippines: The police’s murderous war on the poor.” ​Amnesty International​. Last modified

January 13, 2017. Accessed November 11, 2018. ​http://www.amnesty.org/en/latest/news/

2017/01/philippines-the-police-murderous-war-on-the-poor​.

Posner, Eric. “The case against human rights.” ​The Guardian​. December 4, 2014. Accessed

November 11, 2018. ​https://www.theguardian.com/news/2014/dec/04/-sp-case-against

-human-rights​.

Robinson, Patrick L. “The Right to a Fair Trial in International Law, with Specific Reference to

the Work of the ICTY.” ​Berkeley Journal of International Law​ 3, no. 1 (2009): 1-11.

Accessed November 11, 2018. ​https://bjil.typepad.com/Robinson_macro.pdf​.

Safi, Michael and Rahman, Shaikh Azizur. "Bangladesh's Philippines-style drugs war creating
View publication stats

19

'atmosphere of terror’.” ​The Guardian,​ May 25, 2018. Accessed November 2, 2018.

theguardian.com/world/2018/may/25/bangladeshs-philippines-style-drugs-war-creating-at

mosphere-of-terror​.

Simangan, Dahlia. “Is the Philippine “War on Drugs” an Act of Genocide?” ​Journal of Genocide

Research​ 20, no.1 (2018): 68-89. Accessed November 11, 2018. ​https://www-tandfonline

-com.ccl.idm.oclc.org/doi/full/10.1080/14623528.2017.1379939​.

Soliven v. Makasiar. 167 SCRA 393, G.R. No. 82585 (November 14, 1988). Accessed

November 11, 2018.​ ​https://www.lawphil.net/judjuris/juri1988/nov1988/gr_82585_

1988.html​.

Stork, Peter. “The Ambiguity of Human Rights in the Face of Escalating Violence” ​Paper

presented at the ​ANU Emeritus Faculty Meeting, Canberra, Australia, Oct 17, 2007.

Accessed November 11, 2018. ​http://www.anu.edu.au/emeritus/events/docs/Ambiguity

_of_Human_Rights.pdf

UN General Assembly. “Universal Declaration of Human Rights.” ​International Bill of Human

Rights​ (1948). Accessed November 11, 2018. ​ohchr.org/documents/publications/compila

tion1.1en.pdf

Wouters, Jan and Verhoueven, Sten. “The Prohibition of Genocide as a Norm of Jus Cogens and

Its Implications for the Enforcement of the Law of Genocide.”​ International Criminal

Law Review​ 5, no. 1 (2005): 401-416. Accessed November 11, 2018. ​https://heinonline

.org/HOL/LandingPage?handle=hein.journals/intcrimlrb5&div=27

“VERA Files Fact Check: ICC can strip off Duterte’s immunity.” ​VERA Files​. Last modified

March 19, 2017. Accessed November 11, 2018. ​http://verafiles.org/articles/vera-files

-fact-check-icc-can-strip-dutertes-immunity