Rappler Talk: Explaining crimes against humanity in Duterte’s context

Summary

In this episode of Rapler Talk, Professor Leila Sadat, a leading expert on crimes against humanity, discusses the legal framework surrounding the case of former Philippine President Rodrigo Duterte, who faces charges related to extrajudicial killings during his war on drugs. Professor Sadat explains how the International Criminal Court (ICC) establishes crimes against humanity, emphasizing the pattern of killings and the state-sponsored policy behind them. She also addresses the challenges of proving the case, the implications of Duterte’s rhetoric, and the ongoing debate about jurisdiction and accountability for the crimes committed under his leadership.

Takeaways

• 😀 Crimes against humanity are not based on a specific number of killings but on a widespread or systematic attack against a civilian population, conducted under a state or organizational policy.
• 😀 Establishing a policy of killing doesn't require a written directive; evidence of a repeated pattern or modus operandi can be used to show a policy was in place.
• 😀 The prosecutor must demonstrate that the killings took place pursuant to state or organizational policy and that the accused were aware of this policy.
• 😀 The pattern of killings under Duterte's leadership as mayor and president suggests a consistent policy, which strengthens the case for crimes against humanity.
• 😀 The prosecutor's challenge is to prove every element of the crime beyond a reasonable doubt at trial, but there is substantial evidence at the confirmation stage.
• 😀 Duterte's public statements, such as 'Shoot them dead,' could be crucial evidence in proving his involvement in orchestrating the killings.
• 😀 Indirect co-perpetration refers to top officials, like Duterte, who commit crimes through subordinates without directly carrying them out themselves.
• 😀 The ICC's jurisdiction remains valid for crimes committed while the Philippines was a party to the Rome Statute, even after the country's withdrawal from the court.
• 😀 Jurisdictional challenges in the case revolve around whether the preliminary examination initiated while the Philippines was still a member is enough to keep the ICC's authority over the case.
• 😀 Complementarity allows the Philippines to prosecute crimes domestically, but if the national process is not genuine, the ICC can still intervene.
• 😀 A global treaty on crimes against humanity is needed to strengthen international accountability, ensure enforcement, and integrate non-ICC states into a cohesive legal framework.

Q & A

What is the key criterion for establishing a crime against humanity according to Professor Leila Sadat?

The key criterion for establishing a crime against humanity is showing that there was a widespread or systematic attack against a civilian population. This can involve various acts as outlined in Article 7 of the Rome Statute, and the attack must be conducted pursuant to a state or organizational policy.

Does the number of killings play a crucial role in determining whether a crime against humanity has occurred?

No, the number of killings is not a crucial factor. What matters more is whether the killings are part of a systematic or widespread pattern of attacks, even if the exact number is not established.

How does the International Criminal Court (ICC) establish the presence of a policy of killing in a case like Duterte’s drug war?

The ICC establishes a policy of killing by showing that the killings followed a consistent pattern, with a certain modus operandi. Evidence like video footage, testimonies, and documentation of the killings can help prove that the killings were not random, but part of a deliberate strategy.

What is meant by the term 'indirect co-perpetrator' in the context of legal proceedings against Duterte?

An 'indirect co-perpetrator' refers to someone at the top of the chain of command, like Duterte, who is seen as controlling the crime through subordinates. This person may not physically commit the crime but directs or enables others to carry it out.

Why is the legal term 'indirect co-perpetrator' important for prosecuting top officials like Duterte?

It is important because it allows the court to hold high-ranking officials accountable for crimes they have orchestrated, even if they were not directly involved in carrying out the violent acts. This term ensures that individuals like Duterte can be prosecuted for crimes committed under their leadership.

How does the government of the Philippines defend the drug war in relation to crimes against humanity?

The Philippine government defends the drug war by framing it as a public order campaign against drugs and criminal activity, not as a state-sanctioned war. They argue that the killings were part of an effort to maintain public safety, although this does not justify extrajudicial executions.

What legal challenge does the Philippines face regarding the ICC's jurisdiction over Duterte's case?

The challenge involves whether the ICC can maintain jurisdiction after the Philippines withdrew from the Rome Statute. The ICC argues that as long as the crimes were committed before the withdrawal and there were proceedings under consideration, jurisdiction remains, as the court had already begun its preliminary examination.

Why is the issue of jurisdiction in the Philippines' case still being debated?

The debate centers around whether the Philippines' withdrawal from the Rome Statute affects the ICC’s ability to prosecute crimes that were committed while the country was still a member. The ICC asserts that its jurisdiction remains intact because the crimes were committed before the withdrawal and were under preliminary examination at the time.

How does the ICC respond to criticisms that it targets individuals for high-profile cases like Duterte's?

The ICC responds by emphasizing that its processes are judicial and not based on targeting individuals for the sake of publicity. The prosecutor's office follows a thorough and judicial process, and arrest warrants are confirmed by a pre-trial chamber. Criticism is often leveled against the court, regardless of the situation.

What is Professor Sadat's stance on the need for a global treaty on crimes against humanity?

Professor Sadat advocates for a global treaty on crimes against humanity because it would help address gaps in international law. A treaty would provide a framework for prosecuting these crimes universally, ensuring that states have the mechanisms to prevent and punish crimes, and enhancing international cooperation in enforcement.