01. Contextual background
As of December 5, 2018, 52 communications regarding the Philippines had been received by the Office of the Prosecutor of the International Criminal Court (ICC). These included a request for a preliminary examination by Filipino attorney Jude Josue L. Sabio in his April 24, 2017 letter entitled “The situation of mass murder in the Philippines, Rodrigo Duterte: the mass murderer.” and one by a Global Coalition of NGOs and lawyers in a December 14, 2017 Open Sign on Letter to the International Criminal Court.  “The silence of the ICC and the UN is inviting a new era where violence and murders are normal, human rights violations are universal”, said Anand Chabungbam, Regional Coordinator of the Asian Network of People who Use Drugs (ANPUD) who presented the letter. “We, on behalf of our community [people who use drugs] implore the ICC to act on its mandate and help us save thousands of lives”.

Both communications give a stark description of the government sponsored mass killings of users of consciousness altering substances in the first year after the inauguration of Rodrigo Duterte as president. Now, two years later, the situation has only changed for the worst and last September 23, 2019, some of the finest people in the Philippine legal profession came together to reconvene the group Concerned Lawyers for Civil Liberties (CLCL) to protest president Duterte’s policies, which grossly violate constitutional rights and international law. “Not since the dark years of the (2006) Martial Law had civil liberties and fundamental rights been threatened and blatantly violated with such brazen impunity in their country”, the CLCL said¹. Its lawyers, who persevered in 2006 and achieved victory against then-president Gloria Macapagal Arroyo, indicated at the relaunch that they will confront Duterte with a similar zeal to defend all those being red-tagged for dissenting from his policies: the victims of martial law and of the territorial dispute with China over the West Philippine Sea, the indigenous peoples, the peasants and the farmers, the people from the press and the human rights defenders and, last but not least, the victims of Duterte’s bloody War on Drugs, “Oplan Tokhang”. This campaign of state-promoted extra-judicial killings of suspected drug users, which includes open calls for murder and promises of pardons and immunity for the killers, has made thousands of victims and continues unabated up to this day.

02. An evaluation of the campaign
The Oplan Tokhang campaign is the government organized execution by brutal force with impunity and without any time limit. It targets the poor and minority drug users and dealers and these victims’ social assistance environment like the press, the Church and human rights defenders. It uses the additional slaughtering power that this popular war provides to attack other allegedly undermining forces, like indigenous people and eco-activists with renewed vitality as well. The campaign is enveloped in complete opacity, except for the governments’ contradicting stories and statistics. It has been described and documented in the world media and has generated debate, condemnation and approval and provoked limited imitation in the region. The campaign managers, senior police officers, regularly appear to be involved in the drugs trade and are fired from the job. Together with other candidates for regularly vacated government jobs, caught and fired for corruption elsewhere, they form a permanent carousel of corrupt veteran newcomers. The overall impression is one of the competing factions of the Duterte clan running this obscure business: the prohibition machinery, the terrorizing killing machine and the market called Philippines. Duterte on top is directing the groups dynamics with slogans for policy formulations which he hopes will allow him to stay abreast of the executive line where the compromising orders are given. The DPI is of the feeling that the harsh persecution of socially neglected people is the quid pro quo from Filipino society to a criminal and corrupt elite to run all the acts of the national drugs show.

03. The qualification of ‘genocide’
The DPI views the Duterte drug war as a genocide: an act or acts intended to destroy a group, in whole or in part, by killing members of the group, by causing serious bodily or mental harm to members of the group and/or by deliberately inflicting on the group conditions of life calculated to bring about its physical destruction. These three acts, out of the five that have been defined as constituting elements of the crime of genocide by the UN Convention on the Prevention and Punishment of the Crime of Genocide (CPPCG), provide each in itself a criminal offense which signatory nations “undertake to prevent and punish.”

We wish to clarify two aspects that might otherwise give an excuse to exclude the Oplan Tokhang campaign from genocide. First, there is the required notion of ‘group’ vs. a simple collection of individuals. Drug users and dealers as such do indeed not feel of themselves as a group defined by a common feature which sets them apart from the rest of society. They do have a certain consumption preference not shared by all other members of their society, but so do all these other members of society. A specific consumption preference consequently does not invite, let alone force, people to unite as a group in order to defend a common interest other than their consumption of preference. When however, society discriminates the consumption of particular products, the consumers concerned may be obliged to collectively react in order to defend their common interest not only as consumers but equally as citizens and humans, depending on the sanctions reserved for them by society. In other words, if the group of drug users and dealers exists it is not by natural selection and not by the conscious and free choice made by its members but only in reaction to the discriminating decisions made by the perpetrator. As the UN prohibition machinery has set the collection of individual drug users and drug dealers as ‘group’ apart of the rest of society we trust that this qualification will still stand whenever others, including the perpetrator, might wish to dispute it

Secondly, there is the required ‘type’ of group. Experts have come to view the CPPCG definition of genocide as too restricted as it includes national, ethnical, racial or religious groups only and unjustly excludes other social and political groups as targets of genocide. Unjustly, because according to the UN Security Council the convention was adopted for humanitarian and civilizing purposes, to provide governments and civil society with a tool to hold the world to account when groups need to be protected. We therefore infer that it cannot be the intention of the Council to exclude groups that do not belong to the original 4 CPPCG-types of group from the application of the convention and that the notion of group should include ‘any group so defined by the perpetrator’ as proposed in the literature. We accept the definition of Chalk and Jonassohn of genocide as a form of one-sided mass killing in which a state or other authority intends to destroy a group, as that group and membership in it are defined by the perpetrator. As president Duterte has decided on the extermination of the group of drug users and drug dealers in his country, he falls within a UN-conceived concept of drug users and dealers as a ‘group’, which group, in our view, is included in the extended definition of ‘groups’ protected against genocide by international law.

04. Three acts of incitement
a. The first incitement was committed on Friday December 2, 2016 when the Philippine president called Trump to congratulate him on his election victory and Trump wished him “success” in his controversial crackdown, in which 4,800 people had been killed since July. President Duterte reported the call the next day, Saturday December 3, and told Mr. Trump was “quite sensitive” to “our worry about drugs.” and had said that the Philippines was conducting it “the right way.” Trump said he understands the Philippines' anti-drug campaign as a sovereign nation and that the country is "doing it the right way." "He (Trump) understood the way we are handling it and said that there's nothing wrong in protecting a country" said Duterte.

b. The second incitement was committed on Saturday April 29, 2017, when president Trump called his b. Filipino counterpart, Rodrigo Duterte, to congratulate him for doing “an unbelievable job on the drug problem” in the Philippines, where the government had sanctioned the extrajudicial killing of suspects. “What a great job you are doing, and I just wanted to call and tell you that.”
A transcript of the conversation was circulated on Tuesday May 23 by the Americas division of the Philippine Department of Foreign Affairs under a “confidential” cover sheet and published online by The Intercept. In Washington it was confirmed that the transcript was an accurate representation of the call between the two leaders.

c. The third incitement was committed on Monday November 13, 2017, when the US President had a bilateral meeting with Philippine President Rodrigo Duterte on the sidelines of the 31st Association of Southeast Asian Nations (ASEAN) Summit in Manila. Reporters saw the beginning of the leaders' bilateral meeting during which Trump praised Duterte's hospitality, the organization of the summit he was hosting and even Manila's weather. Trump said nothing about human rights and both leaders ignored shouted questions about the violent drug crackdown. Afterwards, White House press secretary Sarah Huckabee Sanders said that the 40-minute meeting focused on ISIS, illegal drugs, and trade. Human rights, she added, briefly came up in the context of the Philippines' fight against illegal drugs. That appeared to conflict with the Philippines' version of the meeting. Harry Roque, the spokesman for Duterte, said "there was no mention of human rights. There was no mention of extralegal killings." Duterte had said the week before the meeting that he would tell Trump to “lay off” if he talked about human rights. Harry Roque said that human rights were not discussed, although Duterte had explained his anti-drugs campaign to Trump, who nodded and “seemed to be in agreement”.

However, on Monday April 23, 2018, spokesperson Roque told a different story after the US State Department said in its 2017 country report on human rights practices in the Philippines that drug war killings and police impunity remain as top concerns in the Philippines: “Extrajudicial killings have been the chief human rights concern in the country for many years and, after a sharp rise with the onset of the anti-drug campaign in 2016, they continued in 2017,”

Roque, in his Palace press briefing that Monday morning, said that he found it hard to reconcile the report of the US State Department and the statement of Trump during the 31st ASEAN Summit in Manila in November last year. “I personally heard the discussion between President Trump and President Duterte when they were here in the Philippines during the ASEAN Summit and I think I heard words coming from President Trump praising President Duterte including the war on drugs. If I am not mistaken, President Trump said he (Duterte) knows what he’s doing in the Philippines,” Roque said.
“So I do not know how to reconcile the State Department report with the actual statement of the President. But for now, we’re going with the statement of President Trump that we all heard from the mouth of President Trump,” he added. “Given what we heard from President Trump, let’s just say it exists but we prefer to hold on to the words of President Trump. He is, after all, the President.”.

05. From incitement to cooperation?
Since the Trump visit to ASEAN in November 2017, the relations between the Philippines and the US seem to have improved considerably, even to the point that it is questioned, by sources that have to be protected given the sensitivity of the matter, if there does not exist an undisclosed cooperation plan between the two countries. Three indicators for the depth of mutual respect and appreciation described below also suggest such a possibility. The DPI search did not cover this aspect of the Trump administration involvement in the campaign, however.

a. Sunday, November 12, 2017, The Manila quid pro quo, a serenade for a genocide
It has to be assumed that the Trump approval with Oplan Tokhang had already been obtained before the ASEAN meeting, as it was consummated at the gala dinner on the eve of Sunday November 12, where contrary to traditional seating protocol, Duterte and Trump were seated next to each other and Duterte sang a hit Filipino love song for his friend. “On the orders of the U.S. commander-in-chief” Duterte jokingly explained, publicly suggesting that this flattery was not a coincidence but rather on request. And indeed, had it been known at that moment that Trump would effectively oppose Duterte’s murder campaign, he would most probably have been treated like his predecessor, “the son of a whore”. The Duterte serenade to his accomplice thus proved to be a lugubrious genocide anthem.

b. Sunday, April 8, 2018, Duterte advise to Trump
Duterte to Trump: Throw drug dealers into Atlantic Ocean
Duterte, in a speech at a dinner concert in Pasay City said that the decision still lies with the 45th President of the United States on how he will solve the surprisingly large-scale problem of the world superpower.
“Pasok kaagad si Trump (Trump immediately said), ‘I will follow Duterte if I can only kill.’ Do not, do not. You just kill. Presidente ka (You are the President),” Duterte said.
“Bahala ka na diyan kung anong gawain mo. Kalaki ‘yang Atlantic Ocean na ‘yan, eh ‘di doon mo itapon ‘yan (It’s up to you what you will do about the problem. The Atlantic Ocean is vast, you can throw them there),” he added. Duterte said Trump should learn to do what he thinks will be better for his country. “Mahirap sa kanya (It’s difficult for him) because they cannot kill. Ako (Me), I will kill you to preserve my nation,” Duterte said.

c. Thursday, September 20, 2018, Duterte welcomes Bolton’s attack on the ICC
Manila Bulletin : US swipe at ICC, ‘refreshing’ to PH – Duterte
“The latest blistering criticism of US National Security Adviser John Bolton against the International Criminal Court (ICC) was “refreshing to us,” President Duterte declared Thursday amid his renewed warning to the body “not to f*ck” with the country.
"It's good that there is international pressure on the ICC because Bolton's binull-shit them. He's really a very far right in America, Trump's boy. He has criticized the ICC but now," Duterte said during his visit to a military camp in Capas, Tarlac.
Bolton recently threatened the ICC officials with sanctions if they continue an investigation into the alleged war crimes by American troops in Afghanistan. He said the US would not cooperate with the ICC, adding the ICC was “already dead to us.”

06. The qualification of incitement to genocide
The overall picture of the approval from Mr. Trump of the anti-drug policy of extra-judicial mass killings of Mr. Duterte, is one of spontaneous statements, fear of the legal consequences, lack of coordination between the partners in crime, conflicting statements to reduce personal loss of face and obstruction of justice in anticipation of possible incrimination.

a. Spontaneous statements.
The different remarks made by Mr. Trump under points 04. were all made in circumstances where he was in a situation of free conversation with his interlocutors, i.e. that no apparent outside pressure was applied which might have forced Mr. Trump to utter words that went against his deepest convictions. This view is amply supported by the numerous statements made by Mr. Trump regarding his theory that the killing of drug users is the best solution for the drug problem.

b. Fear of the legal consequences.
A simple pattern behind these remarks of Mr. Trump is that he makes them in private conversations and that if they are made outside of the Philippines, they are made public afterwards by the interlocutor; if they are made in the Philippines they are not to be made public. The only and obvious reason being that remarks made in the Philippines will establish the jurisdiction of the ICC, even for USA nationals. As equally confirmed by the Duterte reaction to the Bolton speech against the ‘dead ICC’ (see 05.c.) the ICC seems very much on the perpetrators’ mind.

David Scheffer, who established the ICC on behalf of the US and served as the country’s ambassador-at-large for war crimes issues, said: “The Bolton speech today isolates the United States from international criminal justice and severely undermines our leadership in bringing perpetrators of atrocity crimes to justice elsewhere in the world. The double standard set forth in his speech will likely play well with authoritarian regimes, which will resist accountability for atrocity crimes and ignore international efforts to advance the rule of law. This was a speech soaked in fear and Bolton sounded the message, once again, that the United States is intimidated by international law and multilateral organizations. I saw not strength, but weakness conveyed today by the Trump Administration.” (The Guardian)

The fear of the legal consequences of their acts also translates into often repeated claims ad absurdo that, contrary to the accusations, the policy of extra-judicial mass killings is aimed at the protection of the human rights of citizens:

On May 5, 2018, the Manila Bulletin reported “Duterte brand of justice adheres to rule of law”. Malacañang said that despite the slant made by TIME magazine in featuring President Duterte in its cover together with other “strongmen” leaders in the world, Filipinos are satisfied by how the President runs the country and his brand of justice adheres to the rule of law.” On April 23, 2018, the Philippine Star reported “US: No conflict in rights reports, Trump – Duterte ties.” The latest annual US Country Report on Human Rights and President Donald Trump’s engagement with leaders who have been questioned for their human rights record, including President Duterte, are “complementary” and not two things in “conflict.” “Does that mean that (Trump) should never speak to these people? We’re trying to keep the report as the factual baseline for what we’re going to do in policy terms or sanctions as the (Secretary of State) was mentioning. "So we can learn a lot from this, and we can use it to formulate a policy,” said Ambassador Michael Kozak of the US State Department Bureau of Democracy, Human Rights and Labor. For his part, the Filipino Foreign Affairs Secretary Alan Peter Cayetano said last Saturday that the government’'s vigorous campaign against crime, most especially against the illegal drug trade, seeks to promote the welfare and protect the human rights of all Filipinos – to save lives, preserve families, protect communities and stop the country from sliding into a narco-state On November 10, 2017, Reuters reported that, while in Vietnam for the Asia-Pacific Economic Cooperation meeting, “Philippines’ Duterte offers to host ‘world summit’ on human rights.”

c. Lack of coordination.
The hiding of the talks exchanged between Mr. Trump and Mr. Duterte during their 40 minutes meeting in Manilla (see 04.a.) and the demand of Mr. Duterte that no human rights be discussed imply that the meeting could not be planned and prepared in a coordinated way. Indeed, on the one hand both partners know that their discussions are not in line with international ethical and judicial standards, on the other hand they both wish to pretend that such is nevertheless the case. No cover up strategy can therefore be discussed, only some general indications on how to handle the press can be issued. It leads to both parties providing a minimum of information in order to not contradict each other needlessly.
As Reuters reported: “Central to the rapprochement this week was Duterte holding his tongue, and Trump not expressing concern about Duterte’s centerpiece policy - the crackdown on drugs that has killed thousands of Filipinos”.
They both held their tongues in public, had contradictory press statements produced, and kept the world ignorant about the contents of what they had discussed. The fate of thousands of people predestined for extrajudicial trial was possibly settled in this meeting by an avowed serial killer and the leader of the most powerful democracy on earth, beyond any democratic control, with the objective to normalize a procedure to Extra-judicial Mass Killings (EMK) of drug users far beyond the Philippines.

d. Conflicting statements from both parties.
Once the Monday November 13, 2017 meeting was over, contradicting press declarations from the press officers of the two presidents were released. They only confirmed that Mr. Trump wanted to be seen as having brought up the human rights question without having condoned with so many words the Duterte EMK-policy and that Duterte wanted to project himself as the one who defended during 90% of the talks this policy without Mr. Trump objecting on the basis of his violation of human rights. Because it was up to Mr. Trump to show that the previous two incitements were not his last word on the subject, he lost all credibility here when his press officer's claim that he had discussed human rights with Duterte was not repeated by the Filipino press officer after it had been rejected by this press officerr. As a result, for all most another half a year the world and in particular the potential victims involved, were not to know what had been discussed. The lack of coordination would however result in the April 23, 2018 final lapsus of Harry Roque, whereby the full endorsement of Mr. Trump's Philippines' EMK during the November 13, 2017 meeting in Manilla, was as yet revealed.

e. Obstruction of justice.
The various comments made by Mr. Trump in the year 2018 do confirm his overall enthusiasm for a Duterte-like approach towards the drug problem, as witnessed in numerous reports and highlighted on special occasions by his “great friend” Duterte, who sympathizes with Mr. Trump, whose hands though are tied by legal constraints. To prevent a possible action from the International Criminal Court for committing the crime of genocide, Mr. Trump is creating his international fan base, which he hopes to energize the moment he needs it, no matter what the cost. He needs this base because he believes it will provide him political protection from the feared ICC/OTP. Simultaneously he has his national security adviser undermine the ICC legitimacy. Arm-twisting the world into injustice and his own impunity:

On March 3, 2018 the Manila Bulletin reported “Duterte elated with Trump’s PH drug war comment “: The President said Trump was right when he commented that the Philippines has no drug problem since those involved are killed. “Was it yesterday or the other day? Tignan mo ‘yung front page ng either Bulletin or ‘yung Philippine Star. (Look at the front page of either the Bulletin or the Philippine Star.) ‘Trump: we would like to follow Duterte because they have no problem in the Philippines, he just kills them” Duterte said with a grin during a police shoot fest in Davao City. “Tama ka talaga Trump. Bilib ako sa iyo. Nagsasabi ka ng totoo (You are right, Trump. I’m impressed with you. You are telling the truth),” Duterte added. President Duterte admitted that he prefers drug suspects to put up a fight, so they could be neutralized by arresting lawmen. On March 20, 2018 Slate reported: “Not only has Trump effusively praised Duterte, he has also reportedly expressed a fondness for Singapore’s approach, and in New Hampshire he hinted that the city-state or China might be his model: I’ve gotten to know the leaders of many countries. And I won’t mention names, but you know the countries I’m talking about. I go around, “How is your drug problem?” “We don’t have much of a drug problem.” “What do you mean you don’t have a drug problem?” “Well, we don’t have.” I say, “How come?” “We have zero tolerance for drug dealers.” I said, “What does that mean?” “That means we have the death penalty for drug dealers. We don’t have a drug problem.” The nonnegotiable “Global Call to Action on the World Drug Problem” launched by Mr. Trump at the September 2018 UN General Assembly meeting equally confirms his wish to realign international drug control policy with the failed policies of the past. Most disturbing was the arm-twisting that was used to get many of the 100 signatories to accept the call, which signaled the determination of Mr. Trump to force his punitive approach on the world community. (The Intercept) This arm-twisting of UN-members is also a favored approach of Mr. John Bolton, the former National Security Adviser of Mr. Trump, who already in 2002, when the ICC first opened its doors, “helped secure, in what he described on 10 September as one of his ‘proudest achievements’, around 100 bilateral agreements with other countries to prevent them from delivering US personnel to the ICC. Those agreements were often extracted under pressure, with the US threatening to cut off military and other aid to countries that refused to sign.” (Chatham House)