AS of this writing the confirmation of charges hearing is in progress before the International Criminal Court at The Hague. The prosecutors did a good job of outlining the case, and it should not be lost on the nation — especially those who continue to idolize Rodrigo Duterte — that he supplied the evidence himself now advanced by the prosecution to confirm the charges against him. There is no doubt that he uttered the words he did, blustering and full of confidence then — because he had the whole of the machinery of government at his command.
He made threats to kill without compunction and admitted to killing without batting an eyelash. And because these remarks of arrant criminality were made in public — and remained available to the public even after his administration through recordings, video clips and media reports — they were, correctly, used by the prosecutors to convince the Pre-Trial Chamber that the charges against Duterte were not confabulations.
Joel Butuyan — who even before his appearance at The Hague was already a recognized local advocate for human rights — harnessed rhetorical force as well as the power of legal argumentation. The chilling story he told of a man who was willing to strip to convince his killers that he had neither drugs nor weapons concealed in his person should have moved everyone with a conscience not yet numbed and callous. He was shot repeatedly, nonetheless, and he was then bodily thrown out of the second-floor window of the house where he lived. His murderers thought they had finished him off, but when the body reached the ground, he cried “aray” — he lived long enough to endure the final agony of being thrown from a window and hitting the ground hard.
Duterte is charged with murder in three counts: murders at the time of his mayoralty of Davao City, murders of “high-value targets” while he was president, and murders as well as attempted murders during “barangay clearance operations” in his time as president.
In international criminal law, murder is not merely the intentional killing of victims. Murder, as a means of committing a crime against humanity which is actually the heading under which Duterte is tried, must involve a nexus to a widespread or systematic attack against a civilian population. If the case were murder alone, or even multiple murder, there would be nothing to try before the ICC that would then lack jurisdiction “ratione materiae”... by reason of the subject matter. Murder is tried before our courts. But when murder is committed pursuant to a “widespread or systematic attack against a civilian population,” then one deals with a crime against humanity.
It will be important to remember that proceedings are still before the Pre-Trial Chamber, and the decision has yet to be made whether the cases go to trial or not. But it is important to know what the prosecution must show to convince the Pre-Trial Chamber that there is substantial basis for a trial.
It will be for the prosecution to establish either the “widespread” or the “systematic” character of the attacks against a civilian population. Of the latter, there is no doubt. Most — if not all — who were killed were civilians. In the Akayesu case tried by the International Criminal Tribunal for Rwanda, “systematic” was taken to require an operation or operations “thoroughly organized, following a regular pattern, on the basis of a common policy, involving substantial public or private resources.” For its part, the International Criminal Tribunal for Former Yugoslavia ruled in the Blaskic case that the “systematic” character of the attacks could be proved by demonstrating a “plan or objective,” the large-scale or continuous commission of linked crimes, the use of significant resources and the implication of high-level authorities. And so, it is understandable why the prosecutor had to introduce Bong Go, Ronald dela Rosa and Vitaliano Aguirre.
The Rome Statute is clear that for a crime against humanity to be substantiated, there must be shown “State or organizational policy to commit such attack.” It is ironic that Duterte’s handsomely paid counsel, Nicholas Kaufman, should have told the court that Duterte’s remarks were “hyperbole, bluster and rhetoric” — while admitting that what endeared him to the common tao was his no-nonsense speech, that he spoke the language of the street and that he did what none would dare to do. It should be noted that in the jurisprudence of international criminal tribunals, a “policy” need not be formally adopted or expressly declared. It can be the logical construal of a course of action adopted as advantageous or expedient and can therefore be inferred from the manner in which the acts occurred. In fact, merely showing the improbability of random occurrence would be sufficient.
Attacks are “systematic,” tribunal jurisprudence holds, when there is explicit or implicit approval or endorsement of actions — in this case, killing and attempts to kill — or when the conduct is “clearly encouraged” or “clearly fits within a general policy.” Quite importantly, international criminal tribunals have held that inaction designed to encourage the furtherance of criminal conduct sufficiently establishes its systematic character.
It will also be important to note that though the term “murder” is used in the Case Information Sheet against Duterte, the term does not have the meaning it has under the Revised Penal Code of the Philippines. “Murder” under the ICC’s Elements of Crimes, simply means willfully causing the death of the victim.
Butuyan was right: The proceedings — publicly viewed — serve another useful purpose: To provide an antidote to the incomprehensible fanaticism by which a sizable number of Filipinos still adulates him and considers his blood-soaked administration the era of Pax Roderica.
rannie_aquino@sanbeda.edu.ph
rannie_aquino@csu.edu.ph