- Internal Code :
- Subject Code : LAWS8991
- University : University of NSW
- Subject Name : Criminal Law
Human Rights Conditions
To: Mr XYZ
From: Mr ABC
Re: Legal advice
As per the report of the United Nations High Commissioner for Human Rights on the situation of human rights in the Philippines, at its forty-fourth session, had submitted a thorough report to the Human Rights Council on the situation of human rights conditions in the Philippines. The report illustrates issues like the current ongoing issues related to human rights. The data collected by the Office of the United Nations High Commissioner for Human Rights (OHCHR), has been scrutinized and cross-checked from all kinds of governmental and non-governmental sources.
The details given in Part III of the report does or does not count for crimes against humanity as per the International Criminal Court (ICC).
(a) Looking at the crime against humanity, this goes back to the IInd world war after which the human rights took an evolution. It was in the Nuremberg trial when people got to see another side of human evolution where humans became enemies of humans itself. According to section 7 of the Rome Statute, which defines crimes against humanity, so murder, extermination, slavery, forceful deportation, imprisonment or deprivation of physical liberty, torture, rape, enforced prostitution, forced pregnancy, sexual violence, persecution, enforced disappearance of persons, apartheid.
Part III of the Report of the United Nations High Commissioner for Human Rights on the situation of human rights in the Philippines gives a detailed overview about the atrocities that the people of Philippines had to face after the election campaign of 2016 when the president focused on getting rid of criminals and to fight against the illicit drug trafficking.1 A report by The United General Assembly in 2008, a special rapporteur named Philip Alston had mentioned that there were a huge number of extra-judicial killings that took place in the realm of the then-president.2
Alleged Widespread and Systematic Killings-
It was in 2016 when the president launched a campaign named, Double Barrel. Tokhang was one of its components, which was initiated to do away with the illegal drug trafficking in the smallest of units, the barangays, by the house to house visitations to sway the suspects to not indulge in this business. This thing gave the government the authority to conduct such visitations without any warrants and was done on the basis on 'drug watch lists' which had the names of the dealers. The data of police shows that 42,286 visitations were conducted from July 2016 to November 2017, out of which only 1.2 were based on arrest warrants as per Petitioner v Dela Rosa et al (1991).
3 these house visitations coerced the suspects to confess their crimes and make self-incriminating statements. According to the Philippine Drug Enforcement Agency, the Double Barrel launch in July till January 2020, the police had killed 5,601 people. There has also been a large number of unidentified vigilantes killings in the name of drug eradication. The Administration 2017 Year-end Report says that 16,355 homicides took place in investigations justifying the fight against the illicit drug trafficking. The Supreme Court of the Philippines held all of them to be State-sponsored. From July 2016 to November 2017, there were 20,322 deaths of unidentified people, due to which the apex court called for an explanation. According to data, the homicides related to drugs trafficking had been misreported by the police.4
Obligation to Investigate
Despite the allegations put against the legal authority and the government not much of nay heed was paid to this extra-judicial killings. The government stated in the Police Internal Affairs Services (IAS) automatically comes into picture once there is any killing conducted by the police. So he had conducted about 4583 investigations from July 2016 to May 2019 and to the surprise only one case that if of a 17-year-old Kian Delos Santos was notified where the police were held liable for drug-related killings. As per the OCHR report, where there is any human right violation and that to such an extent it is expected that more than administrative sanctions, some legal sanctions are also taken.
Then comes the reporting procedure where the victims near relatives, mostly female are not given the liberty to file document their complaints. Things like surveillance, harassment, threats, happen with these people.
Deprivation of Liberty
International law condemns arbitrary arrests and detention, yet the statistics say differently. According to The United Nations Committee against Torture, in 2016, mentioned there is about 85-90 per cent of pre-trial detainees of the detained population.5
To conclude, so yes the Part III of the report do justifies the information there does amount to a crime against humanity as per section 7 of the international statute.
(b) Given the fact that there has been a significant number of cases in the Philippines regarding the drug-killings and human right violations. In June 2019, the special rapporteurs called for an independent Human Rights Council to have a fair investigation on the alleged allegations.6 Therefore the International Criminal Court is doing their own investigation in this matter.
Part V of the report gives that the High Commissioner is asking from the government of the Philippines to repeal their PNP command memorandum circular no 2016-16 which talks about the project Tokhang. In is lieu of the allegations made regarding the extra-judicial killings, arbitrary detentions, and to stop the propaganda of the 'drug watch list.' They asked them to have an in-bound review of the legislation on narcotics and improvise the drug penalties. They want them to have some recourse to the conviction and punishments based on the human-rights views. Along with this, they have asked them to be cooperative with the families of the victims like providing financial orbits of help or legal help and psycho services.
For the national security policies and all, they have them to repeal the memorandum order 32. This is in relation to providing emergency services which are adequate and time-bound those who urgently require it. They want the government to disperse the private and paramilitary groups backed by the state. Along with this, the executive order 70 got to be reviewed again with a new outlook. It got to be consistent with the rule of law and international standards of human rights. The political and socio-economic ill-treatment should be given a more tender consultation.
The committee guides the government to have an impartial, independent body for a transparent investigation in the killings and into all of the human rights violations. To have a system that could publish the actual report and not the fake reports. To have more harmony between the human rights commission and law enforcement body, to toughen the investigation and forensics of their country, etc.
The High Commissioner asks the Human Rights Council to have more cooperation between the government and OHCHR and make sure that they follow the guidelines. It gives authority to OHCHR to continuously keep a look and document the human rights situations in the Philippines and to report back to the Council. If the OHCHR finds any discrepancy, they are obligated to impose the international sanctions on the country for their violation of human rights. Shore up the execution of the Guiding Principles on Business and Human Rights and to have a more stringent due diligence of human rights, in relation to infrastructural projects, extractive industries.
Therefore, as per the report, the Human Rights Council is going to be more indulged into the governance of the Philippines as the report tells that it is becoming very aggressive and violent against humans. As per the report of International Criminal Court, during the reporting period where the office shall understand the atrocities against the humans in the Philippines and recommend them the changes to be made, as per 15(3) of the statute, they shall decide that whether any further action is necessary or not. In 2020 the office shall run a preliminary examination7 which shall determine that it is right to impose open investigation by the Prosecutor to mitigate the situation in the Philippines. 8 as per this, the Prosecutor shall see the jurisdiction whether being temporal, territorial or personal, admissibility of the offences and the justice system of the country. However, not all atrocities may amount to having jurisdiction in that country.9 Regional and geographical balance is no grounds to conduct an investigation. Hence, ceratin offences shall lie beyond the jurisdictional ambit of the statute. This can only be rectified if that state agrees to become a party to the statute or make a declaration of being governed by the statute or gets referred from the United Security Council.10
(c) Being a former prosecutor himself, Philippine president Rodrigo Duterte brag about being immune from the prosecution by ICC. The Rome statute has developed dits own independent court to prosecute people who impose genocides, war crimes and crimes against humanity. The Philippines had ratified that. They having their domestic law the Philippine Act on Crimes Against International Humanitarian Law, Genocide, and Other Crimes Against Humanity (RA 9851), gives the authority to prosecute Duterte before the Philippine court, while his tenure. For this, the government do not have to carry any impeachment or wait for him to complete his term. Under section 9(a ) of RA 9851, the president of Philippine is immune from being heaved to any court while he is sitting as a president.
The Rome statute lacks in this arena where it has no counter-measure to contradict section 9(a) of RA 9851. As per article 5 of the statute, it is latent on the part where the immunity can be granted to the heads of the state for the 'core crimes.' This explains the fact for crimes like genocide, war crimes etc there should not be any immunity. This is what article 27 para 2 says that according to the preamble of the statute such crimes are “unimaginable atrocities that deeply shock the conscience of humanity.”11 Hence it can be concluded that no one, who is barbaric enough to conduct such heinous crimes, can be granted immunity as per international law.
The only major turmoil that could happen is because of the collision between section 9(a) of RA 9851 and Art 27 of the statute. The former one immune the president to be hauled by any court while he is in his term of office while the latter does not give such immunity. But if one is to deduce the actions of the Philippines government, they had ratified the Rome statute. This means they have given their intent and consent to become a part of this organization and work as per the provisions of this statute. Therefore, ratification itself imposes the Philippines government, and by extension the president to abide by the provision of Article 27. This act automatically annuls their domestic RA 9851.not even their Constitution can supersede the statute. Section 2, Article II of the Philippines constitution gives this privilege to the president of immunity, so that too gets negated after ratification. The Rome statute acts as a jus cogens meaning stating the norms of customary international law which cannot be shaken off.
Therefore the immunity of Duterte as per RA 9851, is void ab initio. Anyone, not just the head of the state shall not and should not be given any immunity as per international law as then the whole significance of it gets ruptured. This is was the main reason why the Nuremberg trial is considered a failure in the history of human rights. There were favouritism and injustice and that was the sole reason why international criminal law gains prominence since then. But sadly, until now there hasn't been much of the justice done to the victim because of the extradition policies. Countries are not willing to extradite any international acclaimed defaulter to save their international relations. They, in fact, provide them refuge in their country as long as they like.
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