Do the actions committed within the Philippines’ so-called “war on drugs” constitute crimes against humanity? This is a timely and important question as the third anniversary of the election of President Rodrigo Duterte approaches, and it has been more than a year since the International Criminal Court (ICC) first announced its preliminary examination into the war on drugs campaign launched by the Philippine government.
The investigation centers on the thousands of drug users that have been killed in alleged “clashes between gangs” but also covers “extrajudicial killings in the course of police anti-drug operations.” Ascertaining precise data on deaths in the drug war is difficult, with estimates ranging from 5,000 up to 27,000 people. However, the Philippine Supreme Court ruled in early April 2019 that the government solicitor general must release documents on the killings to human rights groups, so a more precise total may yet come to light.
What Constitutes Crimes Against Humanity?
To assess whether crimes against humanity – as defined in the 1998 Rome Statute of the International Criminal Court – are taking place, four preconditions need to be met. As Leila Sadat explains, these are, “the commission of the crime as part of a ‘widespread or systematic attack’; against a civilian population; with knowledge of the attack” [directed against any civilian population]; and involving “a course of conduct involving the multiple commission of acts… against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack.”
Sadat argues such criteria “are non-controversial with the exception of the ‘State or organizational policy’ element.” On one hand, the role of the state or policy helps distinguish crimes against humanity from an ad-hoc accumulation of acts; but on the other, there is disagreement over whether the attacks need to be widespread or systematic or widespread and systematic.
As Darryl Robinson notes, the solution is set out in paragraph 2 (a) of the Rome Statute. This states that the “attack directed against any civilian population means a course of conduct involving the multiple commission of acts referred to in paragraph 1 against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack.”
The role of a government is therefore critical. As legal scholars argue, the actions must “form part of a policy by a government… or is tolerated, condoned, or acquiesced in by the aforementioned government.” Breaking this down through focusing on extrajudicial killings and vigilante justice, the process of dehumanization, and the exaggeration of threat, it can be argued that Duterte’s government has directed the attack against drug users.
Duterte’s current approach can be traced back to his time as mayor of Davao City. He has in fact invoked this legacy. On the eve of the 2016 election, Duterte told a 300,000 strong crowd, “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.” This is just one of many statements in which Duterte boasts of his “shoot to kill policy.” It is not just that the government is condoning murder; it is openly championing it.
When investigating disappearances and summary executions in 2006, UN special rapporteur Philip Alston noted that in Davao City – where Duterte was mayor at the time – a “death squad” operated with its members “routinely killing street children and others in broad daylight.” Independently of this, the Philippine Commission on Human Rights (CHR), which was chaired by long-standing critic of Duterte, Senator Leila de Lima, raised similar concerns to the Office of the Ombudsman. As of August 2016, the CHR had investigated 227 complaints of alleged extrajudicial or politically motivated killings, but as a mere fact-finding agency it was able to do little more than this, especially in light of Duterte’s threats to dissolve the body if it continued its criticism of his drug war. The sheer number of complaints would, if investigated properly, help evidence the requirement of “widespread” or “systematic” in the legal definition of crimes against humanity.
Duterte’s regime has routinely argued that the war on drugs cannot constitute crimes against humanity because drug users are not part of humanity. This helps legitimize the murder of drug users as they are depicted as subhuman. Responding to the allegations set forth by international human rights groups and the UN in 2016, Duterte asked, “What crime against humanity? In the first place, I’d like to be frank with you, are they [drug users] humans? What is your definition of a human being? Tell me.”
This sentiment has been restated throughout the war on drugs campaign. Speaking in 2017, Justice Secretary Vitaliano Aguirre II, claimed “drug lords, drug addicts” and “drug pushers” are “not humanity.” Political elites within the government have routinely upheld Duterte’s logic. Responding to the ICC’s preliminary examination in February 2018, Senate Majority Floor leader Vicente Sotto III stated, “I think that the charge can’t be. When you say ‘crimes against humanity,’ who is the humanity being mentioned? Are drug pushers and stubborn drug users considered part of humanity?” The statements underline that a central part of the government’s strategy is to challenge the idea that drug users are human.
Exaggeration of Threat
To further understand the “course of conduct” that underpins the “multiple commission of acts referred to in paragraph 1” it is important to analyze how Duterte exaggerates the threat posed by drug users. The suggestion that murdering those involved with drugs is the only solution to the problem has been justified by portraying drug users as a threat to the nation itself. Duterte said he had launched his bloody war on drugs “because the sheer number of people contaminated will pull my country down – it will destroy the next generation of Filipinos.”
The government creates a narrative of fear by portraying drug use as a disease that will spread throughout society to the point that it threatens the state’s very existence. At the same time, Duterte’s government manipulates statistics by conflating occasional users with addicts in order to exaggerate the threat. Duterte claims that 4 million drug “addicts” will “contaminate another 10 million” within four to six years. This forecast is based upon an estimate that there were 1.7 million drug users in the Philippines in 2016, complied by the Dangerous Drugs Board (DDB), which operates under the jurisdiction of the president. Duterte subsequently inflated this figure despite the fact that around a million of those identified in the original DDB estimate were marijuana users and therefore would be exempt from the figures if Duterte legalized it – as he proposed earlier in his presidency.
Moreover, according to the DDB survey, around a third of the 1.7 million users had consumed narcotics in the previous 13 months, so again can hardly be characterized as addicts. When considering the narrative being constructed around the threat posed by drug users, it is vital to note the relationship between dehumanization and exaggeration of threat. On one hand, the government tells the public that drug users are zombie-like and cannot be rehabilitated. On the other, it speaks of drug users contaminating non-drug users like a disease. These interrelated points reinforce the government’s message: in order to address this threat, drug users must be killed.
Tying the three themes together and considering the role of Duterte’s government in championing the murder of drug users, dehumanization, and the exaggeration of threat, it can be concluded that crimes against humanity are taking place. While there will understandably be debates over how many exactly have been killed, it is important to recall the understanding of crimes against humanity set out in the Rome Statute. As Darryl Robinson explains, “‘widespread’ is a high-threshold test, requiring a substantial number of victims and ‘massive, frequent, large-scale action,’ whereas the term ‘course of conduct’ and the reference to multiple acts were regarded as presenting a lower threshold.” This is particularly relevant as Duterte’s regime has directed the mass murder of drug users.
Adrian Gallagher is Associate Professor in International Relations at the University of Leeds and Co-Director of the European Centre for the Responsibility to Protect. His research centres on mass violence. Co-authors Euan Raffle and Zain Maulana are also based in the School of Politics and International Studies at the University of Leeds.
A detailed research paper which expands on these themes to investigate the international responses to the Philippines’ drug war is published in The Pacific Review. The Pacific review is a journal focused on the international interactions of the countries of the Pacific Basin. It covers transnational political, security, military, economic and cultural exchanges in seeking greater understanding of the region.