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Position Paper The Case For The Alleged Liability Under Article

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11 views3 pages

Position Paper The Case For The Alleged Liability Under Article

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jonzpumz26
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© © All Rights Reserved
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Position Paper: The Case for the Alleged Liability Under Article 28 of the Rome Statute for Responsibility

by Commanders and other Superiors

Introduction

The doctrine of command responsibility is articulated in Article 28 of the Rome Statute of the ICC,
imposing individual criminal responsibility on military commanders and other superiors for crimes
committed by forces under their effective command and control. In light of this, the present position
paper postulates on the issue of whether President Rodrigo Duterte and his subordinates met the
elements and criteria of having violated Article 28 in relation to the extrajudicial killing policy in the
Philippines during the years 2016 to 2018.

Facts of the Case:

1. Public Statements and Policies


It was in this year that President Duterte himself launched a campaign for law and order, wherein he
specifically said he wanted to "fatten the fish in Manila Bay with the corpses of criminals." This set a very
visible backdrop against which further actions would be taken by enforcers of the law.

2. Extrajudicial Killings:
In 2016-2018, some 30,000 people have reportedly lost their lives to the Philippine National Police's
"Oplan Tokhang" operations. Many of the killing incidents are tagged "nanlaban," where the victims
purportedly fought back.

3. Accusation of the ICC


The say goes to the effect that President Duterte had committed Crimes Against Humanity under the ICC,
specifically anchored under the Doctrine of Command Responsibility.

4. Philippine Withdrawal from ICC:


Weeks after the ICC announced its preliminary examination into extrajudicial killings, the President
initiated the Philippines' exit from the ICC in what can only be reasonably considered an attempt to
evade international justice.

5. Article 28 of the Rome Statute:


This article establishes the Responsibility of Unit Commanders and Other Superiors for Crimes
Committed by Forces under Their Effective Command and Control.

6. Command Responsibility:
Under Article 28, a military commander is individually criminally responsible for murder, torture, rape,
and any sexual or other forms of violence during a war, which the forces that are under his command
commit.

7. Role of President Duterte:


As Chief Executive and absolute superior to all officers of the PNP, President Duterte can be considered
as a de facto head of a military organization. His inaction to prevent, repress, and report such crimes
committed by his police subordinates may render him one under the doctrine of command
responsibility.

Analysis

Legal Framework

According to Article 28 of the Statute of Rome, a military commander or person otherwise effectively
acting as such can be held criminally responsible if he knew, or owing to circumstances at the time
should have known that the crimes were being committed; in such a case, the failure would be to take all
measures at his or her disposable and as reasonable within his or her power to avoid and suppress the
acts.

Command Responsibility

Effective Control:

President Duterte, as head of state, was in a position to exercise authority over the PNP and over all
other law enforcement agencies that were in the strength of the war on drugs ; on many occasions,
public utterances and orders by the President directed the violent character of the campaign.

Knowledge of Crimes:

In fact, the very publicity nature of the campaign and wide media coverage of extrajudicial killings
further point to the fact that President Duterte was well aware or, at the least, should have been aware
of the actions taken by law enforcers under his command.

Failure to prevent or punish:

Available evidence shows that he failed to take sufficient actions to prevent killings or to investigate and
prosecute those responsible for them. Statements by Duterte appeared to encourage further
continuation of the campaign.
Evidentiary Support

Public Statements and Policies: Announcements and orders from Duterte reflected the fact that he was
sanctioning violent acts done in the course of the drugs war by his people.
Statistical Data: Those 30,000 deaths reported have a quantifiable measure in how expensive the
campaign has been in human lives and, thus, shows the extent of the crimes putatively committed.

Conclusion

Base on this available information and evidence, there is a substantial basis for a conclusion that
President Duterte and his subordinates violated Article 28 of the Rome Statute under the Doctrine of
Command Responsibility. This he can show by way of effective control rendered by Duterte over the
recorded events; awareness of the extrajudicial killings and their perpetrators; as well as taking of no
appropriate preventive or punitive measures against these perpetrators.

Recommendation

What is important, though, is that the ICC picks up that allegation with all seriousness, provides evidence
and investigates impartially the actions of President Duterte and his administration.

In addition, the Philippine government should be urged to reinstate its ICC membership, while it will be
in complete support for all legal proceedings being conducted by international governments in their
purpose of finally bringing justice and accountability to the victims of extrajudicial killings in the War on
Drugs.

PSSG MARC ANGELO T. PUGOY


PSJLC 2024-02 DELTA

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