Original: English Date: 04/15/2019

INTERNATIONAL CRIMINAL COURT

THE CASE CONCERNING THE PHILIPPINES’ WAR ON DRUGS

MEMORIAL FOR THE REPUBLIC OF THE PHILIPPINES

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TABLE OF CONTENTS

TABLE OF CONTENTS i
QUESTIONS PRESENTED iv
STATEMENT OF FACTS v
PLEADINGS 1
I. THE PHILIPPINES’ WITHDRAWAL PREVENTS THE 1
OFFICE OF THE PROSECUTOR (“OTP”) FROM
CONTINUING WITH THE PRELIMINARY EXAMINATION
AND FROM CONDUCTING AN INVESTIGATION.
A. DEFENSE’S EFFECTIVE WITHDRAWAL BARS THE CONTINUATION OF 1
THE PRELIMINARY EXAMINATION.

1. No criminal investigations have yet been authorized. 2

2. A preliminary examination is not a proceeding which the 2
Defense has a duty to cooperate with.
3. The situation in the Philippines is not a matter already 3
under consideration by the Court.
B. THERE IS NO REASONABLE BASIS TO PROCEED WITH AN 4
INVESTIGATION.

1. There is no reasonable basis to believe that a crime within 4

the jurisdiction of the Court has been or is being
committed.
2. The case is inadmissible under Article 17. 5
a.The situation is being investigated or prosecuted by 5
Defense’s national judicial system.
i. Defense is not unwilling genuinely to carry out 6
the investigation or prosecution.
ii. Defense is not unable genuinely to carry out the 7
investigation or prosecution.
b.The situation is not of sufficient gravity to justify 7
further action by the Court.

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3. There are substantial reasons to believe that an 8

investigation would not serve the interests of justice.
II. THE ACTS DO NOT FALL WITHIN THE JURISDICTION OF 9
THE COURT BECAUSE THEY CONSTITUTE NEITHER (A)
WAR CRIMES, NOR (B) CRIMES AGAINST HUMANITY.
A. THE “DRUG WAR” IS NOT A “WAR CRIME” UNDER ARTICLE 8 OF 9
THE STATUTE.

B. THE OPERATIONS UNDER THE “DRUG WAR” DO NOT CONSTITUTE 10

CRIMES AGAINST HUMANITY UNDER ARTICLE 7 OF THE STATUTE.

1.The incidents of death under the “Drug War” are not Murder. 11
a. The “Drug War” operations are not unlawful acts or 11
omissions.
b. The intention to kill is lacking. 12
i. Use of force in police operations is a recognized 12
rule.
ii. Incidents of deaths are pursuant to legitimate use of 13
force in police operations.
2. There exists no policy of an attack directed against any 13
civilian population.
3. The required nexus and knowledge are lacking. 14

a. There is no nexus between the isolated acts and the attack. 14

b. Knowledge of the acts being part of the attack is required 15

4.The situation is neither widespread, nor systematic. 16

a. The alleged attack is not widespread. 16

b. The alleged attack is not systematic. 16

i. There are no organized activities. 16

ii. There is no organized group. 17

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III. IN ANY CASE, THE PRESIDENT CANNOT BE HELD AS 17

INDIRECT CO-PERPETRATOR NOR RESPONSIBLE AS
SUPERIOR FOR THE ALLEGED CRIMES.

A. THE PRESIDENT IS NOT RESPONSIBLE AS AN INDIRECT CO- 18

PERPETRATOR.

1. The Doctrine of Indirect Co-Perpetration is not a mode 18

of imputing responsibility under international law.

2. In any case, no joint control exists. 19

B. THE PRESIDENT IS NOT RESPONSIBLE AS AN INDIRECT 19

PERPETRATOR.

1. The hierarchical organizational structure is not 20

intended to order the commission of crimes; nor is
there fungibility.

2. Philippine National Police is instituted for lawful 21

purposes.

C. THE PRESIDENT IS NOT RESPONSIBLE AS A CO-PERPETRATOR. 21

1. There is no common plan to commit a crime. 21

2. The President’s role is not essential in the commission 22

of the crime.

D. THE PRESIDENT IS NOT RESPONSIBLE AS A SUPERIOR UNDER 22

ARTICLE 28 OF THE STATUTE.

1. The President has no knowledge that his subordinates 22

are committing crimes or is about to commit crimes.

2. The President has no effective responsibility and 23

control over the crimes committed.

3. The President has not failed to prevent, punish or 23

repress the crimes.

CONCLUSION/PRAYER FOR RELIEF 25

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QUESTIONS PRESENTED

I. Analyze the effect of the Philippines’ withdrawal from the ICC on the preliminary

investigation already undertaken by the Office of the Prosecutor of the ICC.

II. Despite plausible evidence that more than 2,000 individuals have been killed in the

Philippines with the support of the government, these killings do not satisfy the

‘widespread or systematic attack directed against any civilian population’ chapeau

requirement for crimes against humanity under Article 7 of the Rome Statute. In the

absence of an armed conflict they equally cannot constitute war crimes, even if the

government rhetorically claims to be fighting a ‘war against drugs.’ Accordingly, the

ICC is without jurisdiction with respect to this situation, no matter how tragic. Discuss.

III. Even if the substantive elements of crimes against humanity or war crimes were met,

President Duterte could not be qualified as ‘indirect co-perpetrator’ Thus, he may not

be prosecuted for said acts.

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STATEMENT OF FACTS

THE PRESIDENT’S WAR ON DRUGS

On June 2016, the Republic of the Philippines welcomed the new administration of

President Duterte (“the President”), and a nationwide campaign to eradicate the illegal drugs

problem, loosely called “War on drugs” was launched, with the Philippine National Police (“PNP”)

spearheading the operation.

A month into the drug campaign, the PNP promulgated Command Memorandum

Circular No. 16-2016 (“CMO”), thereby laying the guidelines for the campaign’s operations to

ensure, amongst others, the protection of suspects’ basic rights. The CMO also enrolled as a key

pillar of the campaign, the “Internal Cleansing” of the PNP at the national level, particularly by (i)

the “arrest and prosecution of PNP personnel who are engaged in unlawful activities," and (ii) “the

continuous drug testing of all PNP personnel.”

In 2016 alone, the campaign had yielded over 68,859 drug cases with a success rate

of 52.5%; and within two years, the case count had risen to 152,741. Latest information report

over 123,000 anti-drug operations conducted and over 176,000 drug personalities arrested.

INTERNATIONAL IRE, A PRELIMINARY EXAMINATION,

AND THE EFFECTIVE WITHDRAWAL
Campaign operations however were imperfect. Abuses by rogue cops ensued, some

resulting even to deaths.

On September 2017, addressing the Department of Justice (“DOJ”), the President

instructed and warned officers and employees “to operate within the bounds of the law.” The

month following, to further curb abuses, the President signed a memorandum ordering the

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Philippine Drug Enforcement Agency to take over anti-drug operations. Upon such occasion, the

PNP Chief vowed to clean up the PNP ranks and tighten “internal cleansing.”

Still, as the campaign persisted, the number of allegedly drug-related casualties

steadily rose, though DOJ investigations would consequently reveal that of the rising numbers,

only 11.34% were drug-related, the rest being non-drug-related or of unknown motives.

Nonetheless national and international criticism remained unabated.

On February 2018, the Office of the Prosecutor (“OTP”) of the International Criminal

Court (“ICC”) announced the opening of a preliminary examination into crimes allegedly

committed in the Philippines in the context of the “war on drugs.”

Subsequently, the Philippines deposited its notice of withdrawal from the Rome

Statute (the convention creating the ICC) to the United Nations Secretary-General; and on 17

March 2019, the withdrawal became effective. While the OTP had previously insisted that the

withdrawal would not halt the preliminary examination, as at the date of the submission of this

Memorial, no criminal investigation on the situation in the Philippines was ever authorized to

proceed.

The Philippines had been a member of the Rome Statute since 2011.

LAW AND JUSTICE CONTINUES

As the campaign continued, so had the judiciary’s role. On April 2019, the Philippine

Supreme Court ordered the release of all drug war-related police reports and relevant information

to human rights groups and victims challenging the constitutionality of the said campaign. Writs

of Amparo were also issued in favor of the victims’ families, while Temporary Protection Orders

against said operations are already for resolution.

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PLEADINGS

I. THE PHILIPPINES’ WITHDRAWAL PREVENTS THE OFFICE OF THE

PROSECUTOR FROM CONTINUING WITH THE PRELIMINARY
EXAMINATION AND FROM CONDUCTING AN INVESTIGATION.
The Rome Statute1 (“Statute”) is a fruit of State consent.2 It cannot bind non-State Parties,3

nor States which have effectively withdrawn therefrom before any investigation commenced. 4

Defense submits that the Office of the Prosecutor (“OTP”) cannot proceed with an

investigation since [A] the Defense’s effective withdrawal prevents the OTP from continuing with

its preliminary examination, and [B] in any case, there is no reasonable basis to proceed with an

investigation.

A. DEFENSE’S EFFECTIVE WITHDRAWAL PREVENTS THE OTP FROM CONTINUING

WITH ITS PRELIMINARY EXAMINATION.

The OTP cannot investigate where it has no statutory basis therefor. 5 Relatedly, Article

127 of the Statute is categorical in identifying the circumstances unaffected by a State’s

withdrawal.6 The list is exclusive.7

The OTP cannot continue with the preliminary examination given that [1] no criminal

investigations have been authorized, [2] a preliminary examination is not a proceeding which the

1
Rome Statute of the International Criminal Court (last amended 2010), ISBN No. 92-9227-227-
6, (1998). [hereinafter Statute]
2
Hans-Peter Kaul, International Criminal Court (ICC), Oxford Public International Law (2019),
¶2.
3
Vienna Convention on the Law of Treaties, 1155 U.N.T.S. 331 (1969), Article 34. [hereinafter
VCLT]
4
Statute, Article 127(2).
5
MARK KLAMBERG, COMMENTARY ON THE LAW OF THE INTERNATIONAL CRIMINAL
COURT (2017), ¶418.
6
Ibid. 4.
7
Id.
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Defense has a duty to cooperate, and [3] the situation in the Philippines is not a matter already

under consideration by the International Criminal Court (“Court”).

1. No criminal investigations have been authorized.

A preliminary examination is not an investigation8 but an initial step to determine whether

there is a reasonable basis to proceed with one. 9 At the preliminary examination stage, the OTP

enjoys only limited10 and not investigative powers.11

The OTP’s continuation of the preliminary examination in Burundi12 is inapplicable to the

Defense. Whereas in Burundi, authorization to proceed with an investigation was issued two days

prior to the effectivity of Burundi’s withdrawal;13 here, as of the effectivity of Defense’s

withdrawal,14 no such investigation has yet been authorized. Thus, Defense is no longer bound to

the jurisdiction of the Court.15

2. A preliminary examination is not a proceeding which the Defense has

a duty to cooperate.
As a general rule in treaty interpretation,16 the “text must be presumed to be the authentic

expression of the intentions of the parties”; hence, a textual approach to interpretation excludes

preliminary examination from such proceedings. 17

8
ICC, ICC Statement on The Philippines’ notice of withdrawal: State participation in Rome
Statute system essential to international rule of law, ICC-CPI-20180320-PR1371 (2018).
9
KLAMBERG, supra note 5.
10
Statute, Article 54; Decision Pursuant to Article 15 of the Rome Statute on the Authorization
of an Investigation into the Situation in the Republic of Kenya, ICC PT. Ch. II, ICC-01/09
(March 2010), ¶27. [hereinafter Kenya]
11
ICC-OTP, Policy Paper on Preliminary Examinations (2013), ¶85.
12
Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation
into the Situation in the Republic of Burundi, ICC PT. Ch. III, ICC-01/17-X-9-US-Exp (October
2017). [hereinafter Burundi]
13
ICC-OTP. Report on Preliminary Examination Activities, (2017), ¶289.
14
ICC-OTP. Report on Preliminary Examination Activities, (2018), ¶46.
15
VCLT, Article 42(2).
16
VCLT, Article 31(1).
17
ILC, Draft Articles on the Law of Treaties with commentaries, ¶11.
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A State is bound to cooperate in criminal investigations and proceedings which had arisen

prior to the effectivity of withdrawal from the Statute;18 the latter specifically referring to only

those “in relation to which the withdrawing State had a duty to cooperate.” 19 Notably, a preliminary

examination is not included.20 In fact, the OTP cannot invoke the forms of cooperation during this

stage21 and the general obligation to cooperate only relates to investigation and prosecution of

crimes, not a preliminary examination.22

Had preliminary examinations been contemplated amongst those unaffected by States’

withdrawals, the same would have been expressed in Article 127.

3. The situation in the Philippines is not a matter already under

consideration by the Court.
Withdrawal shall not “prejudice in any way the continued consideration of any matter

which was already under consideration by the Court.”23

“Court” excludes matters before the OTP,24 while “any matter” pertains to situations where

nationals are already placed under the jurisdiction of the Court itself, not the OTP.25 Clearly, an

investigation is presupposed,26 which, however, is absent in this case.

18
Ibid. 4.
19
Id.
20
Statute, Part 9.
21
Ibid. 11.
22
Statute, Article 86.
23
Ibid. 4.
24
See Statute, Article 42(1).
25
KLAMBERG, supra note 5, ¶882.
26
Statute, Article 13.
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B. THERE IS NO REASONABLE BASIS TO PROCEED WITH AN INVESTIGATION.

Even assuming that the preliminary examination may continue, nevertheless, the OTP

cannot initiate an investigation, since [1] there is no reasonable basis to believe that a crime within

the jurisdiction of the Court has been or is being committed; [2] the case is inadmissible under

Article 17; and [3] there are substantial reasons to believe that an investigation would not serve

the interests of justice.27

1. There is no reasonable basis to believe that a crime within the

jurisdiction of the Court has been or is being committed.
For the Court to have jurisdiction, all28 conditions must be met, namely (i) jurisdiction

ratione materiae, (ii) jurisdiction ratione temporis, and (iii) either jurisdiction ratione loci or

ratione personae.29 For jurisdiction ratione materiae or subject-matter jurisdiction to lie, the acts

must fall within the category of crimes30 in the Statute.31

Here, there is no subject-matter jurisdiction. The ongoing preliminary examination focuses

on crimes allegedly committed in the Philippines since at least July 1, 2016, in the context of the

so-called “war on drugs”.32 Considering however that – as will be elaborated in Section II of the

Pleadings – the so-called “war” constitutes none of the crimes specified in the Statute, 33 the

condition on subject-matter jurisdiction is not satisfied. Thus, the acts do not fall within the

jurisdiction of the Court.

27
Statute, Article 53(1)(a)-(c).
28
Ibid. 11, ¶36.
29
Id.; Kenya case, ¶39; Prosecutor v Thomas Lubanga Dyilo, Judgment, Appeals Chamber, ICC-
01/04-01/06 (2006), ¶21. [hereinafter Lubanga Dyilo]
30
Statute, Article 5-8.
31
Kenya, ¶39.
32
Ibid. 14, ¶51.
33
Ibid. 30.
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2. The case is inadmissible under Article 17.

The OTP must consider whether the case is or would be admissible under Article 17 34

which requires an assessment of both complementarity and gravity. 35 The case is inadmissible

because the situation is [a] being investigated or prosecuted by Defense’s national judicial system;

and [b] is not of sufficient gravity to justify further action by the Court.

a. The situation is being investigated or prosecuted by Defense’s

national judicial system.
Anent the principle of complementarity,36 a case is inadmissible if the State which has

jurisdiction over it investigates, prosecutes and tries the same individual in relation to substantially

similar conduct as alleged before the Court.37

Here, since investigations and prosecutions are in fact underway,38 unless it can be shown

that the State is [i] unwilling or [ii] unable to genuinely carry out the investigation or prosecution,

the OTP cannot proceed with an investigation.39

34
Statute, Article 53(1)(b).
35
Ibid. 11, ¶42; Kenya case; Situation in the Republic of Côte d’Ivoire, ICC PT. Ch. III, ICC-
02/11-01/15-405 (January 2016). [hereinafter Côte d’Ivoire]
36
Mohamed El Zeidy, THE PRINCIPLE OF COMPLEMENTARITY IN INTERNATIONAL
CRIMINAL LAW, 127.
37
Prosecutor v. William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang, ICC-
01/09-01/11 OA (April 2016), ¶1.
38
Agreed Facts, ¶17.
39
Statute, Article (1)(a).
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i. Defense is not unwilling genuinely to carry out the

investigation or prosecution.
Unwillingness contemplates of the shielding the person concerned,40 unjustified delay,41 or

proceedings that are not conducted independently or impartially. 42

Here, perpetrators are not shielded. The Philippine Supreme Court (“SC”) recently ordered

the release of all drug war-related information to human rights groups and victims challenging the

constitutionality of the said campaign.43 Conviction of policemen also “debunks the myth that there

is a culture of impunity in the government’s war against drugs.”44

There is no such unjustified delay in the proceedings as shown by the granting of Writs of

Amparo and Temporary Restraining Orders.45

There is no such impartiality. Separation of powers, an element of any democratic

government,46 is observed by the Philippines,47 and the judiciary is independent of the branch

enforcing the campaign.48

40
Statute, Article 17(2)(a).
41
Statute, Article 17(2)(b).
42
Statute, Article 17(2)(c).
43
Agreed Facts, ¶12.
44
Dexter Ganibe et. al., Statement of Justice Secretary Menardo Guevarra, in 3 cops found
guilty of murder over Kian delos Santos slay, ABS-CBN News (29 November 2018).
45
Agreed Facts, ¶19.
46
See 2004 report of UN Secretary General, “Part III Structural Principles, Ch.20 Democracy
and Rule of Law”, ¶3-4.
47
1987 Philippine Constitution, Article 2, §1. [hereinafter Constitution]
48
Constitution, Article 7, §1; Article 8, §1.
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ii. Defense is not unable genuinely to carry out the

investigation or prosecution.
Inability considers: (1) a total or substantial collapse or unavailability of the national

judicial system, and (2) whether, as a consequence, the state is unable to obtain the accused or the

evidence and testimony, or otherwise unable to carry out proceedings. 49

Here, both considerations do not adhere. As manifested by the line of investigated, pending,

and decided cases, the judicial system remains functional welcoming over 152,741 drug-related

cases in the courts’ dockets, 8,051 of those resolved and a prosecution success rate of 52.5%.50

b. The situation is not of sufficient gravity to justify further action by

the Court.
When upon consideration of the scale, nature, manner of commission of the crimes, and

their impact,51 the case is not of sufficient gravity, the Court cannot conduct any further action.52

In Mavi Marmara,53 although the PTC requested the OTP to reconsider its findings, the OTP—

with whom alone the ultimate decision to proceed lies 54—concluded that the preliminary

examination be closed55 owing to the limited nature of the referred situation.56

Here, any potential case would not meet the required gravity threshold since the situation

referred is limited in number of victims and is with limited countervailing qualitative

considerations.

49
Statute, Article 17(3).
50
Ibid. 38.
51
ICC, Regulations of the Office of the Prosecutor, ICC-BD/05-01-09 (2009), Regulation 29(2).
52
Statute, Article 17(1)(d).
53
Situation on the Registered Vessels of the Union of the Comoros, the Hellenic Republic and
the Kingdom of Cambodia, ICC PT. Ch. I, ICC-01/13-34, (July 2015). [hereinafter Mavi
Marmara]
54
Ibid. 24; Mavi Marmara case, Appeals Chamber, ICC-01/13 OA2, (11 February 2019), ¶47.
55
ICC-OTP, Situation on Registered Vessels of Comoros, Greece and Cambodia: Article 53(1)
Report (6 November 2014), ¶151.
56
Ibid., ¶143.
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3. There are substantial reasons to believe that an investigation would not

serve the interests of justice.
Notwithstanding affirmative findings on the two aforementioned requirements, the OTP

must determine whether there are, nonetheless, substantial reasons to believe that an investigation

would not serve the interests of justice in light of the gravity of the crime and interests of the

victims.57

Here, an investigation would not serve the interests of the victims. Defense has the legal

machinery to guarantee the rights and protection and carry out domestically the obligation to

prosecute, try, and punish perpetrators of crimes cognizable under the Statute, as enshrined in RA

9851.58 It gives a broader application of the principles under the Hague 59 and Geneva

Conventions60 which form part of national law pursuant to the doctrine of incorporation.61 Also,

victims can avail of several other domestic laws that safeguard human rights. 62

57
ICC-OTP, Policy Paper on the Interests of Justice, (2007).
58
See Republic Act (RA) 9851 – Philippine Act on Crimes Against International Humanitarian
Law, Genocide, and Other Crimes Against Humanity.
59
Hague Peace Conferences (1899 and 1907).
60
International Committee of the Red Cross (ICRC), Geneva Convention Relative to the
Protection of Civilian Persons in Time of War (Fourth Geneva Convention), 75 UNTS 287 (12
August 1949).
61
Constitution, Article 2, §2.
62
See RA 10353; RA 9745; EO 163; AO No. 35; SC MO No. 33-10.
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II. THE ACTS DO NOT FALL WITHIN THE JURISDICTION OF THE COURT
BECAUSE THEY CONSTITUTE NEITHER (A) WAR CRIMES, NOR (B)
CRIMES AGAINST HUMANITY.
The crimes cognizable by the Court are reserved to the most serious crimes of concern to

the international community as a whole.63 This reservation justifies the lex stricta principle

requiring a strict construction of the definition of crimes.64 Thus, while the required “reasonable

basis”65 as to the existence of subject-matter jurisdiction66 is not expected to be ‘conclusive’, 67 an

affirmative finding68 of all material elements is nonetheless required.

Here, there is no reasonable basis for the existence of either [A] War crimes, or [B] Crimes against

humanity because the respective material elements thereof are not satisfied.

A. THE “DRUG WAR” IS NOT A “WAR CRIME” UNDER ARTICLE 8 OF THE STATUTE.
War Crimes69 are to be interpreted within the framework of the international law of armed

conflict.70 In international law, “war” refers to “armed conflict,”71 and may either be [i]

international armed conflict, or [ii] non-international armed conflict.72

The “Drug War” is not an international armed conflict involving the armed forces of two

or more states as it is confined only within a single state.73 Neither is it a non-international armed

63
ICC, Elements of Crimes (2011), 5. [hereinafter Elements]
64
KENNETH GALLANT, THE PRINCIPLE OF LEGALITY IN INTERNATIONAL AND
COMPARATIVE CRIMINAL LAW (2009), 11.
65
Statute, Article 53(1)(a).
66
Lubanga Dyilo, ¶21-22.
67
Kenya, ¶27-28.
68
Kenya, ¶26.
69
Statute, Article 8.
70
Elements, 13.
71
The Statements by the Permanent Representative of Israel to the Security Council, (26 July
1951), S.C.O.R.,549th Mtg., ¶40-41.
72
ANDERS HENRIKSEN, INTERNATIONAL LAW (2017), 287.
73
Agreed Facts, ¶14.
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conflict since it does not involve conflicts against rebel or insurgent groups. 74 Instead, “the War

on Drugs is a phrase used to refer to a government-led initiative that aims to stop illegal drug use,

distribution and trade by enforcing penalties for offenders.”75

As the “Drug War” is not an armed conflict under international law, no War Crimes could

exist.

B. THE OPERATIONS UNDER THE “DRUG WAR” DO NOT CONSTITUTE CRIMES

AGAINST HUMANITY UNDER ARTICLE 7 OF THE STATUTE.
Following lex stricta, all elements laid down in Article 776 of the Statute, in consonance

with its corresponding Elements of Crimes77, must concur for a reasonable basis on the existence

of Crimes Against Humanity to lie.

Defense submits that there is no reasonable basis, relative to the contextual elements 78

thereof, viz: [1] the incidents of death under the “Drug War” are not Murder; [2] there exists no

policy of an attack directed against any civilian population; the required [3] nexus and [4]

knowledge are lacking; and [5] the situation is neither widespread nor systematic.

74
Dietrich Schindler, “The different types of armed conflicts according to the Geneva Conventions
and Protocols (Vol. 163)”, in COLLECTED COURSES OF THE HAGUE ACADEMY OF
INTERNATIONAL LAW (1979), 131.
75
PAULA MALLEA, THE WAR ON DRUGS: A FAILED EXPERIMENT, 12.
76
Statute, Article 7.
77
Elements, Article 7.
78
Côte d’Ivoire, ¶78.
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1. The incidents of death under the “Drug War” are not Murder.
The killings may most probably be, without conceding thereto, attributed as Murder under

Article 7 of the Statute.79 The defense, however, submits that murder is not present.

Although undefined in the Statute, in Akayesu,80 “murder” was defined as consisting of

three elements [1] “the victim is dead; [2] the death resulted from an unlawful act or omission; and

[3] at the time of the killing, the accused had the intention to kill.”

Following this definition, the incidents of death under the “Drug War” do not constitute

“murder” since, anent the second and third requirements, [i] the “Drug War” operations are not

unlawful acts or omissions, and [ii] the intent to kill is lacking.

a. The “Drug War” operations are not unlawful acts or omissions.

The program follows guidelines81 and due process –e.g. required presence of human rights

officers and advocates during operations.82 These guidelines were promulgated to ensure a

“bloodless” war on drugs83 pursuant to the Defense’s Chief Executive President Duterte’s (“the

President”) assurance to the public of his administration’s nontolerance to abuses by law

enforcers.84

79
Statute, Article 7(1)(a).
80Prosecutor v. Akayesu, Trial Judgment, ICTR-96-4-T (1998), ¶580. [hereinafter Akayesu]
81
Command Memorandum Circular No. 16-2016 (1 July 2016), 17(e). [hereinafter CMC 16-
2016]
82
Agreed Facts, ¶13.
83
Ibid.
84
Agreed Facts, ¶10.
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b. The intention to kill is lacking.

The campaign puts premium on peaceful means, such as encouraging voluntary

surrender.85 There is no such order to kill. On the contrary, the guidelines 86 itself provide for

“internal cleansing,” prosecuting Philippine National Police (“PNP”) personnel engaging in

unlawful activities during operations.87

Absent the intent to kill, the incidents of death cannot qualify as murder.

i. Use of force in police operations is a recognized rule.

The use of force in police operations is not per se illegal.88 It is a widespread and

established state practice, and Governments are required to adopt rules and regulations on the

subject.89 Police officers are allowed to shoot for self-defense, or to prevent a suspect from

escaping.90

85
See CMC 16-2016, 3.
86
Ibid.
87
Agreed Facts, ¶2.
88
PNP, PNP HANDBOOK PNPM-DO-DS-3-2-13, Rule 7(7.1), 5.
89
See Eighth UN Congress on the Prevention of Crime and the Treatment of Offenders, Basic
Principles on the Use of Force and Firearms by Law Enforcement Officials (1990), ¶11.
[hereinafter Basic Principles on the Use of Force and Firearms]
90
Dara Lind, Statement of David Klinger from University of Missouri St. Louis in When is it
legal for a cop to kill you?, VOX Media (6 July 2016).
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ii. Incidents of deaths are pursuant to legitimate use of force in

police operations.
Police officers protect people from violence, and if a violent person is fleeing, should it be

objectively reasonable,91 they can shoot them to stop their flight.92

Here, the incidents of death are pursuant to legitimate use of force by law enforcers, such

being justified since a threat to the life and safety of law enforcers must be seen as a threat to the

stability of society.93 The use of force being legitimate, claims of intent to kill are thus negated.

2. There exists no policy of an attack directed against any civilian

population.
An “attack” requires a course of conduct involving the multiple commission of acts

pursuant to a “State or organizational policy” to commit such attack.94 This indicates a “systemic

aspect” necessitating evidence linking individual acts which are “only possible as a consequence

of a policy.”95

Here, the policy is to enforce domestic laws through institutionalizing the Philippine Anti-

Illegal drugs strategy. 96 It does not give license to commit murder.

There is also no active promotion or encouragement97 of the same. The President, head of

the campaign, specifically instructs officers “to operate within the bounds of the law.”98 Notably,

drug campaign arrests are 3300% more than incidental deaths. 99 Had there been such a “policy”

and “active promotion” of an attack, the numbers would have been reversed.

91
Scott v. United States, 436 U.S 128 (1978), ¶137-139.
92
Tennessee v. Garner, 471 U.S. 1(1985), ¶11.
93
Basic Principles on the Use of Force and Firearm, ¶2.
94
Statute, Article 7(2)(a).
95
Decision on the confirmation of charges against Laurent Gbagbo, ICC-02/11-01/11 (June
2014), ¶209. [hereinafter Gbagbo]
96
Executive Order No.66, (2018).
97
Elements, 5.
98
Agreed Facts, ¶10.
99
See PNP Official Report (2019).
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 WRITTEN SUBMISSIONS ON BEHALF OF THE REPUBLIC OF THE PHILIPPINES

3. The required nexus and knowledge are lacking.

Anent the element of attack above, the “systemic aspect” thereof presupposes the existence

of “links and commonality of features” 100 between each incident. The acts, naturally or

consequentially, must objectively be a part of, or has a nexus with, a greater scheme of things –

the attack.101

Intimately, such [a] nexus would, require each perpetrator’s [b] knowledge102 of his conduct

being part of such an attack.

Defense submits that both elements are lacking.

a. There is no nexus between the isolated acts and the attack

Acts not perpetrated and designed to be part of an attack do not fall under the purview of

crimes against humanity. 103

The nexus element necessarily excludes isolated or random acts. 104 An isolated act is one

so far removed that such cannot be reasonably said to be part of the attack.105

Where the drug campaign does not adopt a policy to kill and the deaths are incidental to

legitimate law enforcement,106 the deaths incidental thereto are effectively removed from the

definition of crimes against humanity.

Accordingly, if at all, the incidents which could fall within the ambit of such Crime,

granting that they do, are only those outside the legitimate operations – i.e. deaths from ultra vires

100
Gbagbo, ¶209.
101
Prosecutor v. Naletilić and Martinović, Judgement, IT-98-34-T (31 March 2003), ¶234.
102
Elements, Article 7, ¶2.
103
Prosecutor v. Kapreskic, Judgment, IT-95-16-T (January 2000), ¶550.
104
Prosecutor v. Tadić, Judgement, IT-94-1-T (May 1997), ¶648.
105
Prosecutor v. Kunarac, Appeals Judgement, IT-96-23-T (June 2001), ¶100.
106
Agreed Facts, ¶13.
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 WRITTEN SUBMISSIONS ON BEHALF OF THE REPUBLIC OF THE PHILIPPINES

acts of policemen, or perpetrated by vigilantes, amongst others – which, rationally, are isolated

from each other.

Indeed, a case-to-case107 analysis would reveal that only 11.34% of the killings are drug-

related, the rest being non-drug-related or of unknown motives. Discounting even further from

the 11.34% legitimate enforcement incidents would leave a wide array of isolated acts without

commonalities, thereby failing the nexus element.108

b. Knowledge of the acts being part of the attack is required

Article 7109 requires knowledge of the attack, specifically, that the perpetrator knew that

the conduct was part of or intended to be part of110 the attack.

Here, as above-argued, since the acts remaining to plausibly qualify as a crime against

humanity consist of an array of isolated attacks, the respective perpetrators thereof could not have

intended to further such an attack,111 as they are only random acts.

107
Côte d’Ivoire, ¶16.
108
Agreed Facts, ¶15.
109
Statute, Article 7.
110
Elements, ¶3.
111
Decision on the confirmation of charges in the case of The Prosecutor v. Germain Katanga
and Mathieu Ngudjolo Chui, ICC-01/04-01/07 (September 2008), ¶401–402. [hereinafter
Katanga]
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 WRITTEN SUBMISSIONS ON BEHALF OF THE REPUBLIC OF THE PHILIPPINES

4. The situation is neither widespread, nor systematic.

Finally, the situation fails to constitute crimes against humanity, as it is neither [a]

widespread, nor [b] systematic.

a. The alleged attack is not widespread.

The geographical scope of the attack and the number of victims partake the main
112
considerations in determining the widespread character of an attack. In Katanga,113

“widespread” connotes the large-scale nature of the attack and the number of targeted persons.

Here, considering the quantitative standard, the required “widespread” character fails, since

evidence accounts the victims as a mere 0.0019% of Philippine population.114

b. The alleged attack is not systematic.

Systematicity refers to the organized nature of the acts of violence, 115 and a systematic

policy of a certain scale and gravity. 116 There can therefore be no such systematic attack where

there are no organized activities, and no organized group exists.

i. There are no organized activities.

The remaining illegitimate acts do not manifest a thoroughly organized, regular pattern117

nor show that they are carried out pursuant to a preconceived policy or plan, 118 since, as above-

elaborated, these acts are random and isolated.

112
KLAMBERG, supra note 5, 33.
113
Katanga, ¶394.
114
Agreed Facts, ¶21.
115
Katanga, ¶394.
116
Prosecutor v. Charles Taylor, Appeals Judgment, SCSL-03-01-A (September 2013), ¶383.
117
Akayesu, ¶580.
118
Prosecutor v. Kayishema, Judgment, ICTR-95-1-T (21 May 1999), ¶123.
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 WRITTEN SUBMISSIONS ON BEHALF OF THE REPUBLIC OF THE PHILIPPINES

ii. There is no organized group.

In ascertaining the systematic character, it is necessary that the character of the entity, as

in a network,119 organizing it must be properly established.

The language in Article 7120 exhibits that an organized attack must either come from the

State or from a state-like organization, with the latter bearing the capacity and means available to

attack any civilian population on a large scale.121

Here, the character of the organization is not properly established as there is no organized

group, the acts being random. Thus, the alleged attack could not be systematic.

III. IN ANY CASE, THE PRESIDENT CANNOT BE HELD CRIMINALLY

RESPONSIBLE AS AN INDIRECT CO-PERPETRATOR OR AS A SUPERIOR
FOR THE ALLEGED CRIMES.
International Criminal Law was established to ensure that perpetrators who commit

egregious crimes are held liable.122 This does not warrant, however, the deviation from the

principle of due process and legality. 123

The Defense submits that even assuming that the elements of crimes against humanity or

war crimes were met, the President could not be held criminally liable as [A] an ‘indirect co-

perpetrator,’ [B] an indirect perpetrator, [C] a co-perpetrator, or [D] a responsible superior.

119
Kenya, ¶118.
120
Statute, Article 7(2)(a).
121
Dissenting Opinion by Judge Hans-Peter Kaul, "Decision on the Prosecutor's Application for
Summons to Appear for Ruto, Henry Kosgey and Sang”, ICC-01/09-01/11 (15 March 2011), ¶12.
122
HENRIKSEN, supra note 72, 306.
123
GEORGE FLETCHER AND JENS OHLIN, RECLAIMING FUNDAMENTAL PRINCIPLES
OF CRIMINAL LAW IN THE DARFUR CASE, JOURNAL OF INTERNATIONAL CRIMINAL
JUSTICE (2005), 540.
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 WRITTEN SUBMISSIONS ON BEHALF OF THE REPUBLIC OF THE PHILIPPINES

A. THE PRESIDENT IS NOT RESPONSIBLE AS AN INDIRECT CO-PERPETRATOR.

The Doctrine of Indirect Co-Perpetration appears to be an amalgamation of the doctrines

of co-perpetration and indirect perpetration.124 Co-perpetrators are indirect perpetrators in the

sense that they exercise control over their respective organization and co-perpetrator as they are

part of a common plan for the commission of crimes.125

The President cannot be held criminally responsible as an Indirect Co-Perpetrator because

[1] such is not a mode of imputing responsibility under international law, and [2] in any case, no

joint control exists.

1. The Doctrine of Indirect Co-Perpetrator is not a mode of imputing

responsibility under international law.
A strict textual interpretation126 would reveal that the Statute expresses no such Doctrine

of Indirect Co-Perpetration. Indirect Co-Perpetration, though emerging, 127 is challenged as an

expanded interpretation of Article 25(3)(a), running contrary to the principle of individual

culpability,128 This mode of liability has neither support in customary international law nor in

settled ICTY jurisprudence.129

124
Hector Olasolo, THE CRIMINAL RESPONSIBILITY OF SENIOR POLITICAL AND
MILITARY LEADERS AS PRINCIPALS TO INTERNATIONAL CRIMES (2010), 266; Harmen
Van Der Wilt, The Continuous Quest for Proper Modes of Liability, in Journal of International
Criminal Justice (2009), 313; see Objective Elements of Indirect Perpetration Requirements.
125
Lubanga Dyilo, ¶21-22.
126
Katanga, ¶491.
127
Claus Roxin, Crimes as Part of Organized Power Structures, 9 Journal of International
Criminal Justice 191, 193–205.
128
FLETCHER AND OHLIN, supra note 123, 539-561.
129
Prosecutor v. Milomir Stakić, Trial Judgment, IT-97-24-T (July 2003), ¶440. [hereinafter
Stakić]
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 WRITTEN SUBMISSIONS ON BEHALF OF THE REPUBLIC OF THE PHILIPPINES

2. In any case, no joint control exists.

Although applied in Kenyatta, the Doctrine’s application was grounded on the existence of

a joint control.130 Here, while the President has control over the PNP through the National Police

Commission (“NAPOLCOM”),131 he has no established relationship with any other indirect

perpetrator as co-perpetrator. Thus, even assuming arguendo that international law sanctions this

Doctrine’s application, sans the element of joint control, the President still cannot be held

responsible under this mode.

B. THE PRESIDENT IS NOT RESPONSIBLE AS AN INDIRECT PERPETRATOR.

Indirect Perpetration is not applicable where the physical perpetrator is held criminally

liable.132 Here, police officers are prosecuted for criminal liability. 133

Under the Organisationsherrschaft doctrine,134 indirect perpetration is possible regardless

of whether or not the other person (used by the indirect perpetrator to commit the crime) is

criminally responsible.135

Here, however, such is not applicable as there is no concurrence in its elements of

apparatus, fungibility, and detachment from the law.136

130
Situation in Kenya, Prosecutor v Uhuru Muigai Kenyatta, Francis Kirimi Muthaura and
Mohammed Hussein Ali, Decision on the Confirmation of Charges, ICC-01/09-02/11 (January
2012); Situation in Darfur, Sudan, Decision of the Prosecution’s Application for a Warrant of
Arrest against Omar Hassan Ahmed Al Bashir, ICC-02/05-01/09 (March 2009).
131
EO 379, Realigning the Functions of Supervision and Control over the Integrated National
Police, (1989).
132
H. H. Jescheck and T. Weigend, LEHRBUCH DES STRAFRECHTS– ALLGEMEINER
TEIL (1996), 664.
133 Agreed Facts, ¶2.
134
Claus Roxin, Täterschaft und Tatherschaft (1994), 245.
135
Albin Eser, Individual Criminal Responsibility, in Antonio Cassese et al. (eds.) THE ROME
STATUTE OF THE INTERNATIONAL CRIMINAL COURT: A COMMENTARY (2002),
768.
136
Henning Radtke, MITTELBARE TDTERSCHAFT KRAFT
ORGANISAIONSHERRSCHAFT IM NAIONALEN AND INTERNAIONALEN
STRAFECHT, 153 GOLTDAMMER'S ARCHIV FTIR STRAFRECHT (2006).
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 WRITTEN SUBMISSIONS ON BEHALF OF THE REPUBLIC OF THE PHILIPPINES

1. The hierarchical organizational structure is not intended to order the

commission of crimes, and the element of fungibility is wanting.
The apparatus or organization must be predicated on a clear hierarchical structure whereby

subordinates act on orders from the leaders of the organization.137 The leader must exercise

authority and his control should be mobilized to secure compliance with orders that include the

commission of crimes within the Court's jurisdiction.138

As to the element of fungibility, it should be established that the leader’s control is such

that when one subordinate does not comply, they can be easily replaced. Fungibility presupposes

the first element of apparatus.139

The President exercises control over the PNP through the NAPOLCOM. 140 However, his

power of control pertains only to the faithful execution of law.141 And notwithstanding his

impulsive142 expressions of the contrary, 143 the President has likewise specifically ordered the

officers to “operate within the bounds of the law.”144 As above-elaborated, this mandate is

embodied in the operations guidelines.

137
Otto Triffterer and Kai Ambos (eds.), THE ROME STATUTE OF THE INTERNATIONAL
CRIMINAL COURT: A COMMENTARY (2018), 71.
138
Claus Roxin, Crimes as Part of Organized Power Structures, 9 Journal of International
Criminal Justice 191, 193–205.
139
KAI AMBOS AND C.H.BECK, COMMENTARY ON THE ROME STATUTE (2008), 73.
140
See RA 6975, An Act Establishing the Philippine National Police Under a Reorganized
Department of the Interior and Local Government, And For Other Purposes (1990).
141
Constitution, Article VI, §17.
142
Agreed Facts, ¶13.
143
Agreed Facts, ¶7.
144
Agreed Facts, ¶10.
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 WRITTEN SUBMISSIONS ON BEHALF OF THE REPUBLIC OF THE PHILIPPINES

2. The PNP is instituted for lawful purposes.

Organisationsherrschaft applies to organizations that are detached from the legal order.145

The PNP is, however, instituted for a lawful purpose 146 and mandated only to obey lawful orders.147

Critics say that legal orders form the basis of state sanctioned crime as when crimes are perpetrated

in the name of the law148, such is not the case as The Philippine Senate Committee on Justice and

Human Rights found no proof that the drug-related killings were state-sanctioned.149

C. THE PRESIDENT IS NOT RESPONSIBLE AS A CO-PERPETRATOR.

The concept of Co-Perpetration is based on joint control.150 None of the members of the group

singularly control the commission of the crime as they all depend on one another. 151 In contrast,

the President exercises supervisory control.152

1. There is no common plan to commit a crime.

The co-perpetrators must have formed a common plan to commit the offence.153 As such,

they are of equal footing because each of them could frustrate the commission by not carrying out

his task.154 The President wielding control,155 the PNP follows his lawful orders, which negates

joint control.

145
Neha Jain, The Control Theory of Perpetration under International Criminal Law, Chi. J. Int'l
L. (2011), 159.
146
Constitution, Article XVI, §6.
147
PNP, Ethical Doctrine Manual Chapter III, §2-14 (1984).
148
Kai Ambos, Article 25: Individual Criminal Responsibility, in Otto Triffterer (ed.),
COMMENTARY ON THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL
COURT: OBSERVERS' NOTES, ARTICLE BY ARTICLE (2008), 243.
149
Agreed Facts, ¶10.
150
Lubanga Dyilo, ¶ 342.
151
Stakić, ¶440.
152
See RA 6975, An Act Establishing the Philippine National Police Under a Reorganized
Department of the Interior and Local Government, And For Other Purposes.
153
Lubanga Dyilo, ¶343.
154
Stakić, ¶440.
155
Constitution, Article VII, §17.
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 WRITTEN SUBMISSIONS ON BEHALF OF THE REPUBLIC OF THE PHILIPPINES

2. The President’s role is not essential in the commission of the crime.

Each co-participant must have an essential role in the common plan.156 The co-perpetrator’s

role is essential when: if he refuses to participate, the operation is frustrated.157

Here, as elaborated in Section II of the Pleadings, where the illegitimate deaths are caused

by isolated acts, the President’s role could not have been essential thereto.

D. THE PRESIDENT IS NOT RESPONSIBLE AS A SUPERIOR UNDER ARTICLE 28 OF THE

STATUTE
Article 28 provides that a civil leader is liable of the acts committed by his subordinates if

the following elements concur: knowledge, control, and failure to punish. 158

1. The President has no knowledge that his subordinates are committing

or is about to commit crimes.
Knowledge is defined as awareness that a circumstance exists or a consequence will occur

in the ordinary course of events. 159 Constructive knowledge is not enough.160 Actual knowledge

with regard to all material elements of the crimes is required. 161 The President, therefore, cannot

be presumed to have known of the crimes by his mere occupation of presidency without indirect

or direct evidence162 of actual knowledge.

156
Lubanga Dyilo, ¶999.
157
Claus Roxin, TÄTERSCHAFT UND TATHERRSCHAFT, Perpetration and Control over
the Act, 6th Edition (1994).
158
Statute, Article 28
159
Statute, Article 30.
160
KAI AMBOS, TREATISE ON INTERNATIONAL CRIMINAL LAW, 181.
161
Chantal Meloni, Command Responsibility: Mode of Liability for the Crimes of Subordinates
or Separate Offence of the Superior?, 5 Journal of International Criminal Justice (2007), 634.
162
Prosecutor vs Pavle, Trial Judgment, ICTY IT-01-42-A (July 2008), ¶368.
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 WRITTEN SUBMISSIONS ON BEHALF OF THE REPUBLIC OF THE PHILIPPINES

In Blaškic,163 if a commander has exercised due diligence in the fulfilment of his duties yet

lacks knowledge that crimes are about to be or have been committed, such cannot be held against

him. Here, due diligence was exercised and adequate guidelines and safeguards were put up.164

Further, constructive knowledge should not be evaluated retrospectively in relation to

information available afterwards.165 Awareness of a general form of criminality is also not

enough.166 Thus, while it is undebated that the President now holds knowledge of such acts, said

knowledge being merely after-the-fact, the President cannot be held responsible thereby.

2. The President has no effective responsibility and control over the

crimes committed.
Both ICTY and ICTR provides that an official position is not determinative for superior

responsibility.167 Giving orders may indicate being a superior, but if such are not obeyed, it seems

to prove the opposite.168 As elaborated in Section II of the Pleadings, the President instructs

officers to operate within the bounds of the law. 169 Hence, actions in defiance of those orders is

beyond control of the President.

3. The President has not failed to prevent, punish or repress the crimes.
The superior’s obligation to prevent or to take necessary and reasonable measures is a due

diligence obligation.170 Pursuant to due diligence requirement, guidelines171 were crafted to

prevent the commission of abuses during the course of operation. The duty to punish is likewise

satisfied as police personnel were investigated, dismissed and demoted for violating the

163
Prosecutor v. Tihomir Blaškić, ICTY IT-95-14-T (March 2000), ¶332. [hereinafter Blaškić]
164
Agreed Facts, ¶13.
165
Prosecutor v Ignace Bagilishema, ICTR ICTR-95-1A-A (July 2002), ¶42 .
166
Prosecutor v. Milorad Krnojelac, ICTY IT-97-25-A, (November 2003), ¶155.
167
Prosecutor v Zejnil Delalic and Others, ICTY IT-96-21-A (February 2001), ¶186-198.
168
Blaškić, ¶69.
169
Agreed Facts, ¶10.
170
Rene Vark, Superior Responsibility, 15 ENDC Proceedings (2012), 143–161.
171
Agreed Facts, ¶13.
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 WRITTEN SUBMISSIONS ON BEHALF OF THE REPUBLIC OF THE PHILIPPINES

operational procedures.172 PNP was even enjoined to leave drug operations to the Philippine Drug

Enforcement Agency in order to give way for PNP’s internal cleansing. 173

172
Agreed Facts, ¶10.
173
Agreed Facts, ¶11.
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 WRITTEN SUBMISSIONS ON BEHALF OF THE REPUBLIC OF THE PHILIPPINES

CONCLUSION/PRAYER FOR RELIEF

The Republic of the Philippines respectfully requests the Court to adjudge and declare that:

1. The preliminary examination by the OTP be terminated for lack of jurisdiction

and for lack of reasonable basis to proceed with an investigation.

2. The situation in the Philippines constitute neither War Crimes nor Crimes Against

Humanity.

3. The President cannot be held criminally responsible as an indirect co-perpetrator

or as a superior for the alleged crimes.

Respectfully submitted,

AGENTS FOR THE REPUBLIC OF THE PHILIPPINES

25
 AGENTS FOR THE REPUBLIC OF THE PHILIPPINES

EH405

ACBAY, Franc Joshua EBO, Mel Domini

AUGUSTO, Evith JURADO, Joanne
BERINGUEL, Jarleine MATA, Geremae
BILAGANTOL, Angelique Mhar NAGAMORA, Jamairah
BOLANIO, Adrian OBAOB, Laurence
CALVO, Fidel Gabrielli OMAMALIN, Jani
CORREOS, Zayra Blanche OUANO, Joshua Felix
DAHAN, Leah Eden SIERRA, Vincent Mitchel
YUGI, Miki