The “war on drugs” campaign of Rodrigo Duterte and appropriate transitional justice to meet the investigation of the crimes
Author: Jenny Brömel
This is Jennilyn Olayres holding her partner Michael Siaron, 30. He was “a pedicab driver, who was shot dead and killed by unidentified riding in tandem suspects” (Lerma, 2016) in the streets of Manila on July 23, 2016. “A placard was left beside the victim’s body with words, ‘Pusher ako, wag tularan.’ (I’m a pusher, do not copy me.)” (Lerma, 2016).
This photo by Filipino photographer Raffy Lerma is a “symbol of the suffering of the primarily poor population of the Philippines under the violent policies of President Rodrigo Duterte” (NKV, 2018), a state anti-drug strategy also referred to as the drug war (Wikipedia, Drogenkrieg, 2021).
Kine (2017) writes in his Harvard International Review article: “The extraordinary brutality of the Duterte drug war is undeniable. Many of the victims are found in back alleys or street corners wrapped in packing tape, their bodies bullet-ridden or bearing stab wounds and other signs of torture” (Kine, 2017).
According to Human Rights Watch, various human rights groups estimate that between 12,000 and 30000 people have been murdered in this drug war (HRW, 2022). Perpetrators include police officers and “unidentified gunmen” (Kine, 2017) or “vigilantes” (Kine, 2017).
Two hitmen told Amnesty Philippines (2021) in an interview that they receive up to 15,000 pesos for killing a “drug pusher,” a person accused of drug use (Amnesty Philippines, 2021). ” Their boss is an active-duty police officer” … “Before Duterte, they said, they had one or two “jobs” a month; now they have 3-4 a week” (Amnesty Philippines, 2021).
Duterte has been the mayor of Davao City in Mindanao, an island in the southern Philippines, since 1987 (Amnesty International, 2005). Since then, “the city has experienced an unprecedented series of killings” (Amnesty International, 2005) and the number of extrajudicial executions by so-called ‘death squads’ has increased dramatically.
They do not necessarily meet with resistance in society, since the victims are mainly petty criminals, drug addicts and street children who are not missed by anyone except their relatives and non-governmental organizations (Amnesty International, 2005). In addition, many offenders voluntarily turn themselves in for fear of the death squads (Stormer, 2016), resulting in overcrowded prisons with inhumane conditions (Bodewein, 2017).
In early October 2021, Duterte announced that he would step down after his term as president (Stöhr, 2021). Re-election is ruled out under the Philippine Constitution (Stöhr, 2021). His presidency ended on June 30, 2022, and transitional justice could be possible ways to deal with the crimes of the past years.
But what transitional justice is even suitable to deal with such an internal conflict in such a case? What transitional justice is suitable to deal with the crimes? To what extent can justice provide a safeguard against accusing oneself of a crime? And what evidence is available to prove corresponding crimes?
The death squad system and the command to kill
“If I make it to the presidential palace, I will do just what I did as mayor. You drug pushers, holdup men, and do-nothings, you better get out because I’ll kill you” (HRW, 2017; Kine, 2017). According to Human Rights Watch (2017), these were the words of Rodrigo Duterte in a speech on the evening of the presidential election (HRW, 2017). He had already promised during the election campaign to “allow police to shoot criminals selectively” (brk/dpa, 2016) and called for killings in a Manila slum on the evening he won the presidential election (The Guardian, 2016).
Kuntz (2017) published a report in the German news magazine ‘Der Spiegel’ about Edgar Matobato, who accused the president under oath before the Senate Judiciary Committee in September 2016 of “building an army of killers during his time as mayor of Davao City” (Kuntz, 2017), … “who now operate nationwide” (Kuntz, 2017).
He himself had been a founding member of the death squads and had “killed more than 50 people. … Hundreds more he had kidnapped, tortured, dismembered, thrown into the sea, and buried” (Kuntz, 2017). Kuntz (2017) goes on to describe that evidence was destroyed before the bodies were disposed of, especially since many of the death squads worked for the police. Duterte, who sometimes oversaw this process, selected the victims and gave the kill orders. And the death squads also allegedly kidnapped women. “Before they were killed, my colleagues raped them,” Matobato recounts (Kuntz, 2017).
Between July 2016 and the end of May 2019, “at least 6,600 ‘drug personalities’ were killed in police anti-drug operations” (Amnesty International Campaign, 2019, p.5), according to data from the Philippine National Police, Amnesty International wrote in a 2019 campaign report. Human Rights Watch reports cases in which suspects were taken into police custody and later found shot dead (Kine, 2017), not infrequently using the pretext of self-defense by the PNP.
For example, Amnesty International (2019) writes that in these so-called “buy-bust” cases, “police tried to justify the killing by claiming that the person fought back, requiring the use of deadly force” (Amnesty International Campaign, 2019, p.6). Also, a report by the Independent Commission of Investigation Into Human Rights Violations in the Philippines (Investigate PH) indicates, that the PNP must be involved in covering up the killings, intimidating witnesses, and obstructing the Department of Justice’s (DOJ) review of the killings (Kine, 2017; Sarao, 2021).
The ICC investigation between 1 November 2011 and 16 March 2019
Under the principle of complementarity, the International Criminal Court (ICC) is “a court of last resort. The court is intended to supplement, not to supplant national jurisdictions” argues Cryer (Cryer et al., 2020, p.153). Thus, the preamble to the ICC Statute states that each state has its own responsibility to try international crimes and that the ICC only becomes competent when the state is “unwilling or unable to carry out proceedings genuinely” (Cryer et al., 2020, p.154).
Thus, in her brief to the pre-trial chamber of the ICC, Prosecutor Bensouda (2021) also assumes that crimes against humanity in the form of murder under Article 7(1)(a), (2)(a) Rome Statute are committed by the State here and not prosecuted. Bensouda (2021) argues that “there is a reasonable basis to believe that the crime against humanity of murder has been committed on the territory of the Philippines between 1 July 2016 and 16 March 2019 in the context of the Government of Philippines ‘war on drugs’ campaign” (Bensouda, 2021).
She states that “my office also reviewed information related to allegations of torture and other inhumane acts, and related events early as 1 November 2011” (Bensouda, 2021). In her request, Bensouda (2021) also addresses the issue of the ICC’s jurisdiction, given that the Philippines withdrew from the Rome Statute on March 17, 2019 (Bensouda, 2021). Duterte’s reasoning for withdrawing at that time was that although the Rome Statute was ratified on November 1, 2011, it “was never published in the Official Gazette of the Philippines” (Lissowsky & Heinze, 2019). Since this is a prerequisite for effectiveness, “they were therefore never truly members” (Lissowsky & Heinze, 2019).
In a press release dated September 15, 2021, Pre-Trial Chamber I of the ICC grants the Prosecution’s request. The Court confirms that, pursuant to Article 15(4), there is “a reasonable basis to proceed with an investigation” (ICC Press Release, 2021) of crimes against humanity in the form of murder under Article 7(1)(a) of the Statute in relation to killings in the Philippines in connection with the “war on drugs” between July 1, 2016 and March 16, 2019, and in the Davao region between November 1, 2011 and June 30, 2016 (ICC Press Release, 2021).
In support, the Court states that the available evidence indicates “that a widespread and systematic attack against civilians occurred in the course of or in furtherance of a State policy, within the meaning of Article 7(1) and (2)(a) of the Statute” (ICC Press Release, 2021).
Moreover, the Court finds that it has jurisdiction over the aforementioned periods because the Philippines was a State Party to the Rome Statute from November 1, 2011 to March 16, 2019, inclusive (ICC Press Release, 2021). However, the Pre-Trial Chamber considers jurisdiction beyond that date inadmissible because the “alleged crimes identified in the Article 15(3) Request are limited to those” (ICC Press Release, 2021) committed “during the period when the Philippines was a State Party to the Statute and was bound by its provisions” (ICC Press Release, 2021).
According to the news magazine Spiegel, an initial reaction to the court’s announcement was that “the government there will not cooperate” (jok/dpa, 2021) and will refuse ICC investigators entry into the country (jok/dpa, 2021). Moreover, the ICC “no longer has jurisdiction over Philippine affairs” (sda, 2021), stressed Salvado Panelo, President Duterte’s lawyer. “We are quite capable and willing to prosecute those who abuse their power and commit crimes against citizens” (sda, 2021).
Transitional justice – possibilities of a reappraisal
“The state in the Philippines” has “become a criminal itself under Duterte,” Kuntz (2017) writes in his report in the news magazine Spiegel. Witnesses such as the Matobato death squad are declared untrustworthy by Duterte’s allies in the Senate. “The justice minister, who by his own admission does not consider criminals to be human beings, said Matobato was spreading ‘lies’. … The Judiciary Committee, before which Matobato had testified, stopped its work on the issue” (Kuntz, 2017).
Amnesty International, in a 2017 campaign, reported on a witness who was advised against further prosecution of her husband’s killing by investigators from the National Bureau of Investigation and titled as futile (Amnesty International Campaign, 2017, p.7).
Citing Prosecutor Bensouda’s motion (2021), the PNP has been implicated in the unlawful killing of thousands of civilians (Bensouda, 2021), and Amnesty International wrote in a 2019 report that “serious crimes under international law and other human rights violations resulting from anti-drug operations” (Amnesty International Campaign, 2019, p.5) have been documented by national and international human rights groups.
“In the context of mass atrocities and large-scale human rights violations, criminal justice cannot be addressed using the same approach, and limited resources, of the ordinary justice mechanisms” (ICTJ), writes the International Center for Transitional Justice (ICTJ) on its homepage, approaching the concept of transitional justice with a holistic approach.
Andrews (2019) argues that “transitional justice mechanisms are widely believed to reinforce accountability” (Andrews, 2019, p. 202), with the goal of “the recognition of victims and the promotion of peace, reconciliation, and democracy” (Herrmann, 2012, p.91) after a conflict ends. They are “non-judicial bodies set up by governments after armed conflict or internal political violence” (Andrews, 2019, p. 201).
To address the reconciliation of perpetrators and victims and enable sustainable peace, one option for addressing crimes could be a dedicated ad hoc tribunal. Such an international criminal tribunal is empowered by statute to try international crimes and is an organ of the UN Security Council (Cryer et al., 2020, p.123).
However, past experience has shown that international institutions such as the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) “tend to be large and expensive” (Cryer et al., 2020, p.181). “Their capacity is limited to a few cases and they have hitherto been located away from the State in question for security or other reasons” (Cryer et al., 2020, p.181). Therefore, due to the large number of cases and the different crimes, it cannot be assumed that in the case of the Philippines an ad hoc tribunal would be suitable to fully address the crimes and thus ensure peace and security in the country in the long term.
Another possibility for a reappraisal that combines domestic criminal proceedings with international criminal proceedings would be the establishment of a hybrid criminal court on the territory of the Philippines. Hybrid criminal courts “use both national and foreign officials and apply a combination of domestic and international law. They fill an impunity gap, serving as backstops when international tribunals lack jurisdiction or are overwhelmed by atrocities but national courts cannot or will not fill the need” (Bibas & Burke-White, 2010, p.656). A prerequisite here would be the approval of the new government.
Thus, in cooperation with the United Nations, a statute could be drafted that would authorize such a court to try the crimes contained therein. However, even a hybrid tribunal would involve immensely high costs and would be limited to the crimes contained in the Statute.
Domestic prosecution along the lines of the Gacaca courts and a truth and reconciliation commission as an opportunity
In cooperation with a new Philippine government, thought could also be given to establishing local community courts along the so-called lines of the Gacaca courts in Rwanda. 11,000 courts at that time were established by the government to expedite a sentencing for the 1994 genocide trials and reduce the prison population (Herrmann, 2012, p.90).
Herrmann (2012) argues in her essay that they “complement each other, contributing, more effectively to the reconstruction of the entire society” (Herrmann, 2012, p.91) as a whole “than a single institution” (Herrmann, 2012, p.91). Moreover, they link “multiple political, social, and legal institutions” (Herrmann, 2012, p.91) together and are thus suited to promote peace, reconciliation, and democracy.
Since 2002, 1.9 million cases have been adjudicated through this jurisdiction using plea bargaining, which was developed for this jurisdiction (Herrmann, 2012, pp. 95-96). In this regard, plea bargaining was “a unique approach of gacaca aiming at encouraging offenders to confess in exchange for substantially reduced sentences” (Herrmann, 2012, p.96).
Through this principle, fundamental rights, such as freedom of expression, can be strengthened and offenders, such as Matobato, would be more willing to testify in court, provided some witness protection could be guaranteed. In addition, compensation payments to victims could be ordered by the courts, bringing them closer to reconciliation and forgiveness.
However, as the Gacaca trials in Rwanda have shown, such acts of revenge have not been absent, and false statements have been made out of fear or despair, especially since the crimes have been dealt with only legally. In the case of the drug war, however, these courts can be seen as an opportunity to restore the destroyed trust in the state apparatus, provided that the crimes are dealt with appropriately, with legal assistance and psychological support.
They can help “promote community participation and empowerment, which are concepts closely related to democracy” (Herrmann, 2012, p.99). The disadvantage of these domestic prosecutions is that they only focus on certain crimes due to the large number of cases, leaving little room for other investigations because the goal here is to expeditiously process as many trials as possible based on the same offenses.
Another option for transitional justice would be to establish a Truth and Reconciliation Commission along the lines of the one created in South Africa to investigate the politically motivated crimes of apartheid (Wikipedia, Wahrheitskommission, 2022).
According to Andrews (2019), truth commissions are “victim-centered, non-judicial inquiries, established by governments in the aftermath of conflicts and war, to ascertain the facts and evidence of human rights violations. They are designed as an alternative to criminal trials to allow for victim reparations and amnesty for perpetrators” (Andrews, 2019, p. 201).
A major advantage of such a commission, as with the Gacaca Courts, is that because it is based in the victims’ own country, they are able to participate in the trials, face the perpetrators, and thus forgive the perpetrators. In addition, the commission is not limited or focused on investigating specific crimes, and perpetrators could be promised amnesty on the model of South Africa if they make full confessions.
In addition, victims could be promised financial assistance from the state apparatus (Wikipedia, Wahrheitskommission, 2022) to achieve the goal of reconciliation between victims and perpetrators. In this regard, as with the gacaca courts, state cooperation under a new government is inevitable.
The above findings show that sufficient evidence has been collected in recent years by both human rights organizations and the International Criminal Court to address the drug war in the Philippines after Duterte’s presidency. However, not every transitional mechanism is also suitable for doing justice to the compromise between the parties to the conflict in search of justice for the victims and establishment of peace (Andrews, 2019, p. 201).
While an investigation by the ICC for crimes against humanity regarding Duterte and other superiors is certainly understandable, it is not suitable for achieving reconciliation between victims and perpetrators due to the killings by the death squads.
Moreover, it is questionable whether sustainable peace can be achieved in the Phillipines, because peace is not only “the absence of violence or evil, the presence of justice” (Abdalla & Sender, 2019, p.11), but also “the wholeness created by right relationships with oneself, other persons, other cultures, other life, Earth, and the larger whole of which all are a part” (Abdalla & Sender, 2019, p.11).
Based on this essay, this is most likely to be achieved with domestic prosecution or a truth and reconciliation commission, but in each case requires a high level of government interest in addressing the crimes. Perhaps then perpetrators like Matobato can ask for and receive forgiveness.
List of References
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Author’s Short Bio
Jenny Broemel studied law at the Friedrich Schiller University of Jena, Germany, majoring in Criminal Justice and graduated with the 1st State Examination. She is currently enrolled at the University for Peace (UN-mandated) and is pursuing a Master’s degree in International Law and Diplomacy, which is conducted in cooperation with the United Nations Training Institute UNITAR. She will earn her master’s degree in June 2023. She is also trained as an intercultural mediator according to the German Mediator Training Ordinance. Her research focuses on intercultural mediation, international criminal law, illicit trade and transnational organized crime. She can be contacted at email@example.com.