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MEL STA.MARIA | 8,000+ EJKs a crime against humanity indictable at the ICC
The online news portal of TV5

Atty. Mel Sta. Maria is the Dean of the Far Eastern University Institute of Law and Professor at the Ateneo de Manila School of Law.

In a radio interview on March 11 over government-owned Radyo ng Bayan, presidential spokesman Ernesto Abella dismissed any attempt at elevating the matter of extrajudicial killings in the Philippines to  the International Criminal Court. 

He claimed that the Philippines has no EJKs, and genocide, he insisted, is “quite far” from what is happening in the country. “We are not fighting against ethnic, racial or religious groups” -- the attributes that qualify mass killing as genocide. 

But what Secretary  Abella does not seem to know is that the ICC does not only acquire jurisdiction over genocide but also over any  crime against humanity, including any form of mass killing, even if not motivated by ethnic, racial, and/or religious considerations.

The Philippines is a signatory to the Rome Statute, the binding treaty creating the International Criminal Court or ICC, which provides that murder “committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack,” is a crime against humanity.

“Attack directed against any civilian population,” in turn, means a “course of conduct involving the multiple commission of,” among others, murder “against any civilian population, pursuant to or in furtherance of a state or organizational policy to commit such attack.” 

And such “policy” includes both express and implied policies as the treaty does not distinguish.

There is no question that extrajudicial killings, which are murders, are already widespread. They occur as systematic attacks with an automatic excuse -- “nanlaban” -- mostly committed by state actors, including rouge personnel of the Philippine National Police. It is directed against a sector of the “civilian population” -- alleged drug addicts and pushers but also many who may in fact have nothing to do with drugs and are, therefore, innocent.  

The fact that, in a number of towns, many drug-connected persons voluntarily surrendered for fear of extermination suggests that they have “knowledge of the attacks.” News reports, in print, broadcast and social media, abound that all of us, including President Duterte, cannot but know about these attacks. 

Likewise, the murders constitute multiple commissions as they happened and are still happening every day. It is reported that there are now more than 8,000 EJKs and counting -- very appalling levels.

Because EJK is a crime, every time President Duterte says, " I will kill you," or when he said he would be “happy to slaughter” 3 million drug addicts, he, the head of state, conveys a deadly message discordant with the rule of law -- a presidential call to violence that may be interpreted or misinterpreted as an indirect but effective exhortation to kill, especially addressed to rogue cops.

It is truly uncanny that there has been a rapid surge in the death of thousands of drug suspects after the presidential candidate and, thereafter, the incumbent president publicly expressed and continues to express his ardent desire to eliminate them. This is too much of a coincidence.

To many critics and concerned international organizations, the pronouncements of the president may suggest a state policy, implied at least, of extrajudicial killings. Significantly, under international law and as decided by the International Court of Justice, acts or intentions can be proven by circumstantial evidence as in the Corfu Channel case and that, as in the South West Africa cases, direct statements often prove improper motive if they involve unwarranted acts expressed by an authority with such discretionary power to be able to do or order these.

And to further support this suggestion of implied policy, President Duterte’s assurances of pardon for killer-law enforcers may be considered significant. At a meeting with fellow San Beda College of Law alumni in Malacañang, he said he would have many “pre-signed” forms for pardon which can be shown upon arraignment.

And even if he stated that he will pardon only those who are wrongly accused, this suggests outright impunity. The killing of Albuera, Leyte Mayor Rolando Espinosa Sr. -- a local official suspected of drug connections -- could be an advance preview.

The National Bureau of Investigation, after a thorough investigation, determined that Espinosa’s death was a rubout committed by the police. And yet, President Duterte, in defense of the involved policemen, without any thorough independent investigation and  saying, “whatever the police says, for us, is the truth,” publicly commented that he would rather believe the “nanlaban” version than the NBI’s determination.

This mindset may have been echoed previously by Solicitor General Jose Calida, when, after Senator Leila de Lima indicated that she would open an inquiry into EJKs, he said: “We will not allow anybody to derail this effort of the PNP and its officers to implement the order of our President, to stop this drug trafficking and drug menace in our society.”

“I am here to encourage the PNP not to be afraid of any congressional or senate investigations. We will defend them,” he added. Again, a public pronouncement that would suggest a policy.

Coming from no less than the country’s highest executive tasked with enforcing the law, President Duterte’s public declaration that “when you kill criminals, it is not a crime against humanity; the criminals have no humanity, goddamn it,” may be taken as the underlying-philosophy of his directives, capable of creating a twisted psychological belief among the police of a license to kill without due process. This may have further explained his previous emphatic statement: “I don’t care about human rights, believe me.” 

This “no humanity” notion appears to have been previously referred to by another of his subalterns, Justice Secretary VitalianoAguirre, when he explained before the Commission on Appointments his statement, which he claims was misquoted, that criminals are not humans. He told the CA: “I did not say that they are not humans, but you could not equate these drug pushers as humanity. In other words, these criminals can’t be equated with humanity.”

The President’s uninhibited declarations on “killings” and the ensuing 8000 plus EJKs appear to have a causal connection. And the link may have been fortified by President Duterte’s latest utterance in a press conference in Cagayan de Oro.  

He was quoted by the Philippine Star (March 5, 2017 issue) as saying: “I never denied that I ordered the operations. I declared war on drugs. I take full responsibility, legal or otherwise, for that order.” 

What is incriminating is the phrase “legal or otherwise.” The word “otherwise” connotes any other result or effect that may include illegal ones. It is a   statement against interest, which has a high probative value in the determination of criminal liability. Being a lawyer, President Duterte, surely understands the meaning of all these.

If it does happen after his term, President Duterte’s indictment before the International Criminal Court (ICC) for crimes against humanity will be unprecedented in the annals of the Philippines. Though he will be presumed innocent until proven guilty, his pronouncements and those of his subalterns may be the damaging evidence establishing the nexus between policy and the thousands of extrajudicial killings in the country.

I hope the present administration starts constructively recognizing all the observations coming from both local and foreign human rights experts and advocates.

President Duterte should not immediately attribute malice, ill-motive or a destabilization threat with respect to all these animadversions. Instead of berating, bad-mouthing and ridiculing them, he must work with them to see what can be effectively done.

There is still time to reverse the emerging local and global reputation of the Philippines becoming an area of international concern -- alongside Sudan, South Sudan, Somalia, Syria, and North Korea -- for mass killing and barbarism. 

Professor Taner Ackam, a noted historian and psychologist, said:  “In general, those who resort to mass murder on a collective scale always put forward that they acted on behalf of the nation.” 

This was true of Hitler, Mussolini, Tojo, Stalin and many other tyrants and their cohorts. And most recently, in the Rwanda genocide/mass killing case -- the international suit  known as the “Words-that-Kill-Media-case -- even media people, both in the public and private sectors, were also indicted for encouraging  mass  killings, directly or subtly,  in their broadcasts and/or commentaries, allegedly for the sake of the nation. 

How President Duterte, his Cabinet members, and some media people will fare shall depend on how they will respond to this emerging local and global reputation of the Philippines’ leadership over the mass killings and the barbarism.

Take it from the great Genghis Kahn who caused the murders of thousands. He said “violence  never settles anything.”  

And, if the killing spree accompanying this violent anti-drug campaign is not halted, it is highly probable that this present leadership and its connivers might just see themselves haled before the ICC six or seven  years from now. The reach of justice, sooner or later, will catch up.