(This article is part of a series on a proposed Convention on the Prevention and Punishment of Crimes Against Humanity, due to be considered in discussions now scheduled to resume on Oct. 13 in the Sixth Committee, the U.N. General Assembly’s primary forum for discussion of legal questions.)

A pre-trial chamber of the International Criminal Court (ICC) last month authorized the investigation of killings arising from Philippine President Rodrigo Duterte’s “war on drugs” for crimes against humanity. The investigation is taking place even though the Philippines withdrew from the Rome Statute, effective March 17, 2019, as the Court retains jurisdiction over crimes allegedly perpetrated prior to that time. When the U.N. General Assembly’s Sixth Committee resumes discussions on the International Law Commission’s Draft Articles on Prevention and Punishment of Crimes Against Humanity (ILC draft), atrocities such as those that have occurred in the Philippines should inform the debate. A treaty on crimes against humanity could also help counter a sense of impunity in the Philippines.

When the Philippines gave notice in March 2018 of its withdrawal from the Rome Statute, one domestic law figured prominently in the brief communiqué, though the statute remained unnamed. Republic Act No. 9851 (RA 9851), or the “Philippine Act on Crimes Against International Humanitarian Law, Genocide, and Other Crimes Against Humanity,” is a crucial element of the government’s insistence on its ability and willingness to prosecute the persons most responsible for the widespread killings. When a group of senators challenged the constitutionality of the executive’s unilateral treaty withdrawal before the Supreme Court, arguing that the action violated the separation of powers enshrined in the 1987 Philippine Constitution, the Court simply dismissed the petition for “mootness.” RA 9851 again figured prominently in the opinion of the Court to suggest that the treaty withdrawal – and therefore the Court’s own decision — was not so consequential. The Supreme Court’s opening line was telling: “Treaties may effectively implement the constitutional imperative to protect human rights and consider social justice in all phases of development — but so can a statute, as Republic Act No. 9851… does.”

Invoking RA 9851 is a common refrain, as I initially observed in 2018. The fact remains, however, that five years into the Duterte administration, and thousands of deaths later, justice is still elusive for the drug war victims and the families left behind. There is still no accountability for persons most responsible, least of all under RA 9851. The so-called “war” continues in a time of “peace.”

Strengthening Domestic Accountability

RA 9851 was enacted in 2009, two years before the Philippines became a party to the Rome Statute in 2011 and seven years before Duterte became president. The law, in large part, follows the definition of crimes against humanity in the Rome Statute; the existence of an armed conflict is not a contextual element of the crime. Indeed, the government has relied on RA 9851 to deflect the ICC proceedings. RA 9851 also requires courts to apply “the rules and principles of customary international law,” “judicial decisions of international courts and tribunals,” and “relevant and applicable international human rights instruments” in interpreting the provisions of the statute. The 1987 Constitution recognizes “generally accepted principles of international law” as part of the law of the land. These all demonstrate the applicability of RA 9851 to atrocities occurring during peacetime in the Philippines.

Nonetheless, a standalone treaty on crimes against humanity, if adopted, could serve to reinforce the protection offered by RA 9851. For instance, Article 3 of the ILC draft provides that no exceptional circumstances can be invoked by the State, such as “armed conflict, internal political instability or other public emergency,” to justify the commission of the crime. This is important in light of the enactment of the Anti-Terrorism Act of 2020, a law widely criticized by human rights groups as well as the U.N. Special Rapporteur on Counterterrorism and Human Rights due to its overbroad definition of “terrorism” and related offences, among others. Thirty-seven petitions were filed with the Supreme Court last year to challenge the constitutionality of the law, and the Supreme Court intends to rule on the petitions within the foreseeable future.

Under the Duterte administration, the rhetoric of “counterterrorism” and “national security” has gained traction alongside the waging of “war” against drug suspects. Civic space for any public discussion deemed by the government as criticism has shrunk, with many journalists harassed and a record-high number of lawyers killed. Some of the slain lawyers represented drug war victims; many human rights defenders were killed after being labelled as “terrorists” and/or “communists” (the two terms often conflated and often without substantial proof) by state actors, such as the military and spokespersons of the National Task Force to End Local Communist Armed Conflict.

Article 6(8) of the ILC draft also would require the State to establish liability for legal persons for their involvement in crimes against humanity, in accordance with national laws. This provision would strengthen corporate accountability for widespread human rights abuses in Philippine laws and jurisprudence, where it has yet to take root. Importantly, this may include technology companies that allow their products and services to be used in the commission of atrocity crimes, at the very least by not observing human rights due diligence, as what happened with Facebook in Myanmar concerning the persecution of ethnic Rohingya.

Strengthening the ILC draft

The ILC draft, while a major step forward, does have several shortcomings that human rights advocates have identified previously. One particular issue is the language of Article 12(3) of the ILC draft, which while making reparations available, lacks a procedural component and fails to incorporate the more general right to an effective remedy. The text should be strengthened to provide for the right to an effective judicial remedy, which might be bolstered by the availability of administrative mechanisms in the first instance. To illustrate, the Philippines enacted Republic Act No. 10368 (RA 10368) or the “Human Rights Victims Reparation and Recognition Act of 2013.” Though decades late, this law set up the Human Rights Victims Claims Board (HRVCB) to enable victims of atrocities during martial law (between Sept. 21, 1972 and Feb. 25, 1986), under then-President Ferdinand Marcos, to claim reparations. Since then, more than 11,000 claimants were able to obtain reparations. The HRVCB concluded its operations in 2018, five years after the passage of the law.

To facilitate the claims, the law conclusively presumed that the plaintiffs in the class suit and direct action in Human Rights Litigation Against the Estate of Ferdinand E. Marcos are human rights victims eligible to claim. The judgment had been rendered by the U.S. Federal District Court of Honolulu, Hawaii, in 1995 in favor of the plaintiffs, who were victims of torture, summary execution and enforced disappearance during martial law. The plaintiffs had sought damages against the Marcos estate. RA 10368 also took judicial notice of other victims.

This kind of legislation is not meant to replace criminal justice efforts, but offers a way to expand victims’ access to an effective remedy independent of developments in criminal accountability.

The ILC draft also does not expressly mention incitement of crimes against humanity, although it arguably falls under Article 6(2)(c), which encompasses “ordering, soliciting, inducing, aiding, abetting or otherwise assisting in or contributing to the commission or attempted commission of such a crime.” In the context of the Philippines, senior government officials, including Duterte, at the very least encouraged the killings during the anti-illegal drug campaign. The ICC Prosecutor had in fact issued a statement against incitement of mass violence in the months preceding the opening of a preliminary examination on the Philippines. Incitement to violence also figured in the prosecutor’s request for authorization to investigate.

Cautious Optimism and the Limits of Practicality

Among Southeast Asian states, only Cambodia and Timor-Leste remain parties to the Rome Statute. The Philippines was a state-party for eight years, Malaysia backtracked on its previously announced accession in 2019, and the rest have not made any significant effort to be a party to the treaty. The ICC investigation on Myanmar was only made possible by the territorial nexus of the alleged crimes to Bangladesh, a state-party to the Rome Statute.

A treaty on crimes against humanity would reinforce national laws and jurisdiction without the complementarity principle, which allows the ICC to step in when there is genuine inability or unwillingness of national jurisdictions to investigate or prosecute Rome Statute crimes. For other contributors in this Just Security series, this could convince some States opposed to the Rome Statute to support the ILC draft. It also could facilitate human rights accountability for atrocities involving powerful States, such as those implicating U.S. military forces in Afghanistan, the investigation of which is presently “deprioritized” at the ICC.

The impact of the treaty may be different for victims of other States. The impotence of RA 9851 is illuminating. The lack of significant action from Philippine justice institutions drives civil society support for the ICC investigation. Calls for an international investigation on the human rights situation in the Philippines also persist. A similar investigative mechanism already exists for Myanmar, to gather and preserve evidence on atrocities there, including potential crimes against humanity in the context of the military coup earlier this year.

The ILC draft’s potential for extraterritorial jurisdiction by third States might disincentivize member-States of the Association of Southeast Asian Nations (ASEAN) from supporting such a treaty. The mutual legal assistance provisions on matters of state-sponsored violence might be argued to clash with ASEAN’s policy of non-interference. Indeed, ASEAN’s weak response to the military coup in Myanmar has drawn backlash from local and regional civil society. This shows the limits of practicality as a strategy for gathering support for the ILC draft. It is impossible to accommodate all the competing postures of various states.

Nevertheless, a treaty on crimes against humanity could help dispel a culture of impunity by formally reaffirming the gravity of the crime and filling numerous gaps left by the Rome Statute. More importantly, it would renew the international community’s commitment to universal peace.

IMAGE: Relatives and friends attend the funeral of Sonya Gregorio and her son Frank Gregorio on December 27, 2020 in Paniqui, Tarlac province, Philippines. Sonya Gregorio, 52, and her 25-year old son Frank Gregorio, were both shot in the head by an off-duty police officer before Christmas after a row over noise. The incident was captured in what became a viral video that has provoked a wave of outrage directed at the government and a police force that many say acts with impunity. The shootings are the latest in a series of killings involving the Philippine National Police, which is currently the focus of an international investigation. A recent report by the International Criminal Court said there was reasonable basis to believe that crimes against humanity have been committed as part of President Rodrigo Duterte’s bloody war on drugs in the Philippines. (Photo by Ezra Acayan/Getty Images)