by Marjorie Cohn
Marjorie Cohn is professor emerita at Thomas Jefferson
School of Law, former president of the National Lawyers
Guild, deputy secretary general of the International
Association of Democratic Lawyers and a member of
advisory board of Veterans for Peace.
most recent book is
Drones and Targeted Killing:
Legal, Moral, and Geopolitical Issues.
President Donald Trump
with Philippines President Rodrigo Duterte
a special gala celebration dinner for
Association of Southeast Asian Nations in Manila
November 12, 2017.
Athit Perawongmetha / AFP / Getty Images
Declares Trump and Duterte Guilty of Crimes Against Humanity
Philippine President Rodrigo Duterte and his government
committed war crimes and crimes against humanity, aided and abetted
by U.S. President
Donald Trump and his
administration, according to a recent ruling from the
International Peoples' Tribunal on the Philippines.
The tribunal, which was held in Brussels, Belgium, on September 18
and 19, 2018, rendered its
84-page decision on these crimes on
March 8. Conveners of the tribunal included the,
Association of Democratic Lawyers
Association of Lawyers for Democracy and World Human
of Socialist Lawyers
Coalition for Human Rights in the Philippines
A panel of eight jurors
...heard testimony from
31 witnesses, including me (Marjorie Cohn).
These jurors ordered the defendants to make reparations; to provide
compensation or indemnification, restitution and rehabilitation; and
to be subjected to possible prosecution and sanctions for their
Although the tribunal
does not have the power to enforce those measures, its findings of
facts and conclusions of law could be used to bolster the
preliminary examination of crimes by the Duterte regime currently
pending in the International Criminal Court (ICC).
"The Tribunal has
finally rendered its historical and comprehensive decision,"
Edre Olalia, president of the National Union of Peoples' Lawyers
(NUPL) in the Philippines, who also served as clerk of the
tribunal, told Truthout in an email.
"It is extensive in its presentation of the facts and evidence"
and contains "an incisive elaboration of the nexus between the
acts and omissions of Defendants and their accountability under
a plethora of international instruments."
Edre Olalia added
that the decision,
"sends out a message
loud and clear: a people continually victimized by authoritarian
and repressive governments and exploitative entities will seek
justice wherever they can before those who are willing to give
them a fighting chance."
Finally, Olalia said,
"the decision remains
ever more relevant to this day and time when the Filipinos are
still struggling to ride out the storm of tyranny, brutality,
corruption, misogyny and repression."
Much of this tyranny,
brutality and corruption has been endorsed, whether implicitly or
explicitly, by the United States.
The unholy alliance
between the Philippine and U.S. governments is long-standing.
For the past 18 years,
Obama and Trump, the
United States has continued to provide assistance to the Philippine
government, which enables it to commit war crimes and crimes against
humanity against its own people and deny them their legal right to
After the 9/11 'attacks',
Bush declared the Philippines a second front in the war on terror,
calling it "Operation Enduring Freedom-Philippines."
The Philippine government
used Bush's campaign as an opportunity to escalate its vicious
counterinsurgency program against Muslims and individuals and
organizations that oppose its policies.
The Philippine government labels specific people and groups as
"terrorists," which makes them targets of the regime.
The government also
engages in "red
tagging" - political vilification. These labels can lead
to harassment, assault, detention, torture and even murder.
Targets are frequently,
Indeed, attorney Benjamin Ramos, secretary general of the
National Union of Peoples' Lawyers,
was assassinated on November 6,
2018, two months after the tribunal proceedings.
"Atty. Ramos was a
leading human rights lawyer in Negros, who passionately
advocated for genuine agrarian reform and peasant rights," the
NUPL said in a statement.
Ramos was the 34th
lawyer killed by the Duterte regime. Two more have been killed
The tribunal found Defendants Rodrigo Duterte and his regime, and
Donald Trump and his administration guilty of gross
and systematic violations of,
economic, social and cultural rights,
...and the rights of the
people to national self-determination and development.
tribunal does not have the power
to enforce those
its findings of
facts and conclusions of law
could be used to
bolster the preliminary examination
of crimes by the
Duterte regime currently pending
International Criminal Court (ICC)...
Duterte is responsible for the crimes of his administration under
the doctrine of
Commanders are criminally
liable for murders and other crimes committed by their subordinates
if they knew or should have known they would be committed and they
did nothing to stop or prevent it.
Liability for the Trump administration was based on its role as
accomplice to Duterte's crimes.
Rome Statute of the ICC includes
aiding and abetting liability for
An individual can be
convicted of a war crime in the ICC if he or she "aids, abets or
otherwise assists" in the commission or attempted commission of
"providing the means for its commission."
The U.S. government
supplied the Duterte regime with
$175 million in foreign military
financing in 2017 and 2018, and
$111 million in 2019.
Civil and Political Rights
The tribunal found the Duterte regime responsible for,
"mass murder, gross
violations of the right to due process, unabated killings,
attacks, terrorist-tagging and criminalization of human rights
defenders and political dissenters, muzzling of the right to
free expression, impunity to the hilt, general situation of
unpeace, and the utter contempt for human rights."
Duterte is perpetrating a
ruthless "war on drugs," which has taken the form of a violent war
on suspected drug users.
Most victims of the drug
war are poor people from the slums. A police memo ordered that
suspected drug users be "neutralized" or killed.
The government admits to
killing at least
4,410 people suspected of drug use
as of July 31, 2018. Independent sources
put the number at 23,000.
The police claim that
they acted in self-defense.
Enduring Freedom-Philippines": The U.S. Aids and Abets War Crimes in
But, tribunal prosecutor Neri Colmenares, the chairperson of
the National Union of Peoples' Lawyers, argued,
including eyewitness's accounts, CCTV and others show that the
police, themselves, killed the victims [who were] not fighting
They have been
killing the victims while the victims were kneeling and pleading
for their lives."
Colmenares noted the
brazenness of these killings, saying,
"They were committed
in broad daylight, in public places, in front of many witnesses…
even near police stations showing that the perpetrators were
never afraid at all at being accosted by the authorities."
There is a culture of
impunity for officials in the Philippines.
Police officers who carry
out illegal killings are not brought to justice. They are
promoted to higher posts. Many
lawyers are afraid to defend drug suspects for fear they might be
Since Duterte took office
on July 1, 2016, the regime has illegally killed,
killings have also intensified against human rights defenders
and the progressive sections of Philippine civil society who
have criticized the current undemocratic and anti-people
policies and systems," the tribunal wrote.
"As of June 2018, 169
leaders of the progressive movement have been victims of
extrajudicial-killings (EJKs) and an additional 509
political prisoners are illegally jailed, subjected to
trumped-up criminal charges and planted evidence."
Duterte is unapologetic.
On September 27, 2018, he
"My only sin is the
outside the law....
Fatou Bensouda, chief prosecutor of the International
wrote in an October 2016 statement
about the situation in the Philippines that extra-judicial killings
may fall under the jurisdiction of the ICC,
"if they are
committed as part of a widespread or systematic attack against a
civilian population pursuant to a State policy to commit such an
That is the definition of
a crime against humanity.
Witnesses testified at the tribunal that suspects and prisoners
endure physical and psychological torture. Janry Mensis, a
miner in Mindanao, testified via video.
He described how he and
his brother were arrested, detained and tortured.
They were tied and
detained inside an ambulance for nine days. Then they were
hogtied and their mouths covered with packing tape.
The soldiers then
strangled them. When the brothers pretended to be unconscious,
they were thrown into a pit with wood and oil and set afire.
They dragged themselves out of the pit after the soldiers left
them for dead.
They both suffered
third-degree burns and other injuries from the torture.
Duterte declared Martial
Law in Mindanao on May 23, 2017, purportedly in response to an
invasion in one city by an alleged ISIS-inspired group (ISIS is also
known as Daesh).
His government has used
the Martial Law to conduct illegal arrests and detentions, enforced
disappearances, forced displacement and arbitrary deprivation of
property, destruction of mosques and schools, and arbitrary denial
of humanitarian aid to civilians caught in the crossfire.
After considering this evidence, the tribunal found violations of
Covenant on Civil and Political Rights
Declaration of Human Rights
Convention on the Elimination of All Forms of Racial
against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment;
UN Declaration on
Human Rights Defenders
Murder, torture and cruel
treatment constitute war crimes under the Rome
Statute and the Geneva Conventions.
Murder or torture committed as part of a widespread or systematic
attack directed against any civilian population, with knowledge of
the attack, constitute crimes against humanity under
the Rome Statute.
Economic, Social and Cultural Rights
The Philippine and U.S. governments were not the only entities on
trial at the tribunal.
Other defendants included
the International Monetary Fund (IMF),
World Bank, the World Trade
Organization (WTO), and transnational corporations and foreign
banks doing business in the Philippines.
policies result in the deprivation of genuine government service
as they divert public funds to corruption and big ticket
projects demanded by Defendants World Bank, IMF, WTO and
transnational corporations," the tribunal wrote.
The tribunal determined
anti-democratic and exclusionary economics and governance as he
dramatically perpetuates neoliberal policies imposed or
influenced by Defendant actors and transnational entities doing
business in the Philippines by the systematic violation of
fundamental human rights as exemplified in the mining
Moreover, the tribunal
"This aggravates even
more systemic violations of the people's social, economic and
Witnesses testified to,
"the impact of an
exploitative system that has deprived millions of Filipinos of
their livelihood, demolished the shanties of the marginalized
poor, grabbed lands of the peasants and condemned workers to
eternal poverty through perpetual contractualization and the
exportation of labor, many of whom are victimized abroad,"
The evidence revealed the
system which has reduced the Philippines into a producer of raw
material for industries; reduced the Philippines into a mere
source of cheap labor and a lucrative and pliant market for
This is called
The tribunal concluded that the Duterte regime,
failed to provide the basic rights to work; to living wages and
regular employment; to land; to an adequate standard of living;
and to health, housing and education."
The tribunal also faulted
the regime for imposing,
"new taxes that hit
primarily the poor; and forced displacement of poor families to
install tourism projects on their lands."
"Farmers are deprived of the lands they have tilled for ages and
are attacked; workers are exploited and their strikes violently
dispersed; the urban poor remain homeless and threatened when
they assert their rights; education is commercialized and
inaccessible to the great majority," the tribunal noted.
"thousands are forced
to migrate daily, including nurses, under a labor export policy;
the right to livelihood is curtailed; and distressed overseas
workers are neglected and abandoned."
The tribunal found
violations of the,
Covenant on Economic, Social and Cultural Rights
Declaration of Human Rights
Concerning Freedom of Association and Protection of the
Right to Organize
Convention on the
Right to Organize and Bargain Collectively
Convention on the
Elimination of All Forms of Discrimination Against Women
Convention on Protections of Rights of All Migrant Workers
and their Families
the Rights to National Self-Determination and Development
essentially demonstrated his allegiance to US imperialist goals
in Asia-Pacific region," the tribunal concluded.
"also overturned anew
the victory of the people in removing US military bases."
The tribunal explained
how the U.S. bases in the Philippines facilitate Duterte's
"US presence and the
permanent and expanded basing of US troops are further
emboldening the Defendant Duterte government in implementing the
counterinsurgency program Oplan Kapayapaan patterned after the
2009 US Counterinsurgency Guide and financed by Defendant US
assistance to the Duterte government includes the provision of,
funding, orientation, training and arms to promote and pursue
its economic and geopolitical interests in the region."
The tribunal adopted my
testimony as follows:
"US military aid to
the Philippine government facilitates its commission of war
crimes and crimes against humanity against its own people.
leaders, US political and military leaders could be liable in
the International Criminal Court as aiders and abettors of war
crimes and crimes against humanity."
The Filipino people have
the right to self-determination, which includes the right to
As stated in the
Declaration on the Right to Development, it is "by virtue of"
self-determination that peoples,
"have the right
freely to determine their political status and to pursue their
economic, social and cultural development."
The people have the,
"inalienable right to
full sovereignty over all their national wealth and resources."
widespread and systematic attacks on indigenous peoples and national
minorities, and the use of white phosphorous gas and enforced
disappearances, which amount to crimes against humanity.
"Philippine and US
political and military leaders do not enjoy impunity for their
Achieving justice for
the Filipino people is not just a matter for people in the
Philippines. Americans and other people throughout the world
have a responsibility to bring the criminals to justice," the
tribunal wrote, adopting my testimony.
"The Filipino people
continue their valiant struggle for national liberation and
accountability for the crimes of Philippine and US officials
will help to deter them from committing additional crimes."
In February 2018,
opened a preliminary
into possible crimes committed since at least 1 July, 2016, in the
context of the "war on drugs" campaign launched by the Philippine
A preliminary examination
is an initial step to determine whether there is a reasonable basis
to proceed with a full investigation.
The following month, in March 2018, the Philippine government
submitted a withdrawal from the
Rome Statute. It takes effect one
"A withdrawal has no
impact on on-going proceedings or any matter which was already
under consideration by the Court prior to the date on which the
withdrawal became effective."
Even if the ICC does not
ultimately investigate and prosecute war crimes and crimes against
humanity committed by military and police officials of the
Philippine government, other countries could bring the offenders to
justice under the well-established principle of universal
Any country can try a foreign national for war crimes and crimes
against humanity when the suspect's home country is unable or
unwilling to prosecute, and Duterte has proved unwilling to
prosecute those responsible for the heinous crimes against the