State policy to systematically kill citizens

"The term “systematic” reflects the organized nature of the violent acts."


What are the contextual elements of crimes against humanity under the Rome Statute? Crimes against Philippine President Rodrigo Duterte for the atrocities he and his administration allegedly committed in the name of the war on drugs? 

For better understanding of the crime against humanity of which President Rodrigo Duterte is accused, there is need to fully understand the connotations of certain terms and familiarize ourselves with its elements. What is the meaning of “attack”, or “multiple commission of act”? When does such an attack graduate into a State Policy? What are the determining factors when such an attack becomes a State policy? These and more will be discussed in this part of the series.

As pointed out by the Chamber in its decision, the contextual elements of crimes against humanity are derived from a combination of the ‘chapeau’ of Article 7(1) of the Rome Statute and the definition of ‘attack’ provided by Article 7(2) of the same Statute.

As defined in the Rome Statute establishing the International Criminal Court, an “attack” within the meaning of Article 7(1) of the Statute means a “course of conduct involving the multiple commission of acts referred to in [Article 7(1)].” It likewise provides that the requirement that the acts form part of a ‘course of conduct’ indicates that Article 7 is meant “to cover a series or overall flow of events, as opposed to a mere aggregate of random or isolated acts.”

Under the Statute, “multiple commission of acts” sets a quantitative threshold involving a certain number of acts falling within the course of conduct and the course of such conduct must be “directed against any civilian population,”  namely a collective, as opposed to individual civilians. In other words, “multiple commission of acts” contemplates a civilian population as the primary target of the attack and not merely an incidental victim thereof. However, one must understand that the presence within a civilian population of individuals not necessarily falling under the definition of the term “civilians” does not deprive the population of its civilian character.

Further, it must also be understood that although the attack is to be directed against a civilian population, it is not required that the individual victims of crimes be civilians; they need only be “persons” under the Elements of Crimes.

In the decision, the Chamber also notes that a sufficient nexus to an attack against a “civilian” population must be sufficiently established and the “course of conduct involving the multiple commission of acts” must take place “pursuant to or in furtherance of a State or organizational policy to commit such attack” within the meaning of Article 7(2)(a) of the Statute. As understood, the ‘“policy to commit such attack” requires that the […] organization actively promote[s] or encourage[s] such an attack against a civilian population’. For the purposes of this decision, only the “State policy” prong is relevant.

As an Element of the Crime, a “State policy” to commit an attack does not necessarily mean that it has been conceived “at the highest level of the State machinery.” Hence, even regional or even local organs of the State which adopt such policy could satisfy the requirement of a State policy. As the term “pursuant to” or “in furtherance of” implies, the policy requirement is meant to ensure that the multiple acts forming the course of conduct are connected and that acts which are unrelated or committed randomly are excluded.

A State policy may include “a pre-established design or plan, but it may also crystallise and develop only as actions are undertaken by the perpetrators.”  

A variety of factors may suggest the existence of such policy, and as enumerated by the Chamber, they may include: (a) a recurrent pattern of violence; (b) the existence of preparations or collective mobilisation orchestrated and coordinated by the organisation;  (c) the use of public or private resources to further the policy; (d) the involvement of organizational forces in the commission of crimes; (e) statements, instructions or documentation attributable to the organization condoning or encouraging the commission of crimes; and (f) an underlying motivation.

The systematic manner in which attacks are carried out strongly suggests the existence of such an organizational policy.

To determine the elements of the crime, one must also take into account the qualifiers of “widespread” or “systematic” which, as defined, characterize the “attack” itself. It is understood that the term “widespread” suggests the “large-scale nature of the attack and the number of targeted persons.”

The assessment of whether the attack is widespread is neither exclusively quantitative nor geographical, but must be carried out on the basis of all the relevant facts of the case.

The term “systematic” reflects the organized nature of the violent acts, referring often to the existence of “patterns of crimes” and the improbability of their random or accidental occurrence.

As noted in the Chamber decision, “Crimes against humanity must have been committed as part of a widespread or systematic attack directed against a civilian population. When assessing such a nexus, due regard must be given to the characteristics, aims, nature and consequences of the acts concerned.”

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Topics: Rodrigo Duterte , Rome Statute , International Criminal Court , Elements of Crimes
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