In search of Justice – Should Duterte and friends be afraid of the Alien Tort Statute?


In search of Justice – Should Duterte and friends be afraid of the Alien Tort Statute?

By: Anthony Po

Extrajudicial killings in the Philippines have been estimated to be as high as 9,000 to as low as 6,000 in less than a year Duterte became president.  There will be discrepancies here and there.

Evidence clearly show, however, that Duterte (a lawyer himself) favours the short cut solution of ridding Philippine society of criminals by simply killing them.  I need not list the previous pronouncements of Duterte as he repeatedly went on record commanding state agents to do whatever is necessary to carry out his “war on drugs” and criminality. 

It is strange that the Philippine Commission on Human Rights and the Senate have kept silent to initiate investigations on extrajudicial killings. 

In its report to the UN Human Rights Council, the Philippine government denied any state backed policy on extrajudicial killing. John Fisher, Geneva director at Human Rights Watch, subsequently issued a statement that “(T)he government’s denial and deflection of criticism shows it has no intention of complying with its international obligations.”

In April 2017, a Filipino lawyer brought charges of mass murder and crimes against humanity against President Duterte and other Philippine officials at the International Criminal Court (ICC) in The Hague.

Duterte apologists are quick to dismiss the filing of the criminal charges as a publicity stunt that would get nowhere.  They argue that there is no basis to the complaint for mass murder because whatever killings that occurred (even if true) were the result of Duterte’s campaign to rid society of criminal elements. This is the classic affirmation of the ends justifying the means.

Further, the government submits that alleged victims and their families have recourse to the Philippine Courts.  The ICC is the court of last resort and complaints are to be entertained only if there is a showing that the Philippine judicial system has failed or is not genuine.  Now, who would argue that our Philippine courts are not genuine and are not functioning?  Even after the end of the dictatorship of Marcos, the Philippine Supreme Court website never officially pronounced that the courts stopped functioning and failed to dispense “justice” and uphold the “rule of law” during the Martial Law years (despite overwhelming evidence that the Supreme Court during those dark years of the Marcos rule upheld the draconian powers of the dictator).

I view the filing of the case at the ICC as a positive step in the long game to bring to the attention of a wider audience the Duterte government’s war on drugs and criminality that seemed to accept extra judicial killings as part of state policy.

And then there is the United States law that helps to protect basic human rights.

The Alien Tort Statute (ATS) which was enacted by the US Congress in 1789 was originally conceived to provide foreign citizens with a right of action in American courts so that they could sue for violations of the law of nations and bring their abusers to justice. 

Historically, the ATS was enacted to provide a civil remedy (i.e. damages) to an alien (not a citizen of the US) in US courts who suffered an injury resulting from a violation of the law of nations.  In 1789, the law seemed only to provide protection from the actions of “privateers and pirates”. 

It was unimaginable at that time that torture and murder committed by state agents will extend to violations of established norms of international law and the law of nations.  It took about 190 years.

In 1980, the US Court of Appeals did the unimaginable in the landmark case of Filártiga v. Peña-Irala. It became the precedent for US courts to punish non-American citizens for violations of the law of nations (i.e. in Filartiga, the acts of torture, murder, violations of human rights, etc. happened in Panama) and award damages to the victim. The Filartiga case opened the door to human rights lawyers to help victims of human rights. 

It is interesting that Philippine victims of the Marcos regime successfully sued the deposed president and his family in Hawaii. 

US Supreme Court Justice S. Breyer writes:

“Let us consider, in particular, a lawsuit brought by the mother of Archimedes Trajano. Archimedes had attended a public meeting held in the Philippines in 1977, where the speaker was Imee Marcos-Manitoc (sic), daughter of the president. After asking a hostile question, Archimedes was taken away, tortured and murdered by Philippine military intelligence personnel.  Several years later, in 1986, Ferdinand Marcos, his family, and former high-ranking officials left the Philippines and moved to Hawaii.  The month after they arrived, Archimedes’ mother, Agapita, a citizen of the Philippines but a resident of Hawaii at the time, filed a lawsuit against Marcos and eventually the Marcos estate in federal court.  In February 1994, a jury awarded her, and other plaintiffs, with somewhat similar claims, $1.2 billion in damages (a figure that eventually grew to almost $2 billion). 

When the Marcos estate appealed, the Court of Appeals for the Ninth Circuit upheld the award. 

The Alien Tort Act… creates a cause of action for violations of specific, universal and obligatory international human rights standards which confer fundamental rights upon all people vis-à-vis their own governments.”

(Breyer, The Court and the World, 2015, pp. 140-141).

It is not difficult to imagine that cases based on the ATC will be filed against Duterte and his agents in the future.  To date, it is undeniable that there are gross violations of human rights being committed by the Philippine government and its agents.

It may not be far fetched to see that the relatives of these victims will inevitably file the appropriate actions in US courts against Duterte and his officials based on the ATC as what the victims of the Marcos regime previously did.

There are numerous times when the “rule of law” and respect for human rights seemed too far out of the reach of most people.  History has shown time and again that the journey towards justice is never straightforward but is often long and arduous.  But we should never allow apathy and despair to cloud our inner core.

Each day, the words of civil rights champion Martin Luther King Jr. gently remind me: The arc of the moral universe is long, but it bends toward justice.