Abstract
AbstractPresident Rodrigo Duterte won on a law-and-order campaign promise to fatten the fish in Manila Bay with the corpses of criminals. By the time the Philippines withdrew from the Rome Statute, the body count stood at a reported 30,000, a fifth of whom were openly killed in Philippine National Police (PNP) anti-drug operations. Duterte has since been accused of Crimes Against Humanity,inter alia, as “a person effectively acting as a military commander” under Article 28(a) of the Rome Statute for failing to prevent, repress, and report the crimes of his police subordinates. This study tests the veracity of that claim. It seeks to determine whether Duterte, as the Chief Executive and overall superior of the PNP – statutorily, a civilian group – may be held liable as a military-like commander under the doctrine of command responsibility. At the core of this query lies a singular concern far from simple: the meaning of military-likeness.
Highlights
Y “The common sense of mankind demands that law shall not stop with the punishment of petty crimes by little people
By the time the Philippines withdrew from the Rome Statute, the body count stood at a reported 30,000, a fifth of whom were openly killed in Philippine National Police (PNP) anti-drug operations
Despite the absence of any express finding that Yamashita knew of the crimes of his subordinates,[8] he was held to a strict liability standard and was found criminally responsible for having: unlawfully disregarded and failed to discharge his duty as commander to control the operations of the members of his command, permitting them to commit brutal atrocities and other high crimes against people of the United States and of its allies and dependencies, the Philippines.[9]
Summary
What confers “armed police units” military-likeness? Nora Karsten explores four possibilities: (i) the mandate to use lethal force; (ii) the command structure of the entity; (iii) the nature and scope of the superior’s authority; and (iv) the entity’s “deployability”.51 Each test is briefly surveyed:. The “deployability” test assumes that the sole purpose of a military group is to engage in armed conflict This approach, fails to consider the reality that what is essentially military and non-military deviates from one jurisdiction to the other. What affords militaries “special character” separate from civilian life[74] is not the function in which they engage in, but the values they espouse.[75] The mark of military character is neither weaponry, structure, nor purpose, but disposition – the “military-mind”.76 Both police and military units share in the state’s “monopoly of force”, yet they subscribe to different rules. Military arms, structures, and practices may be indicative of militarization, but “do not as such unequivocally determine the military or civilian status of the unit or the superior”.84 That change in function is no threshold per se, but a product of the essential military characteristic: the military mind
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