President Duterte Is An Indirect Co-Perpetrator Under Article 25 (3) (A) of The Rome Statute

Mr. President, Your Excellencies, May it please this Court.
I am Giossephe Karl Rallos representing the Office of the Prosecutor and I will be
addressing issue on President Duterte’s liability as an indirect co-perpetuator for war
crimes and crimes against humanity.
For so long, the snares of justice and accountability has failed to impute President
Duterte of the bloodbath attributed to the state-sanctioned “war on drugs”. As
eloquently discussed by my co-counsels, the Philippine State under President Duterte
has descended into a state of senseless-killing and violence, which at often times are
committed by state agents. With more and more people helplessly and indiscriminately
falling prey to this diabolic campaign, it begs the question, can President Duterte be
held liable? 
 
The Office of the Prosecutor respectfully submits that President Duterte may be held
accountable as an indirect co-perpetuator for the crimes committed in connection with
his infamous ‘war on drugs’. Incidentally, it is also submitted that the immunity
attached to him in his official capacity as Head of State does not bar the Court from
exercising jurisdiction over his person, and thus he may be prosecuted for war crimes
and crimes against humanity.
President Duterte is an indirect co-perpetrator under Article 25(3)(a) of the Rome

Statute.
The concept of indirect perpetuation is introduced by the Rome Statute under Article
25(3)(a), the provision espouses the instance where a person is criminally responsible
and liable for punishment for a crime if that person (a) commits such crime, whether as
an individual, jointly with another, or through another person regardless of whether
that person is criminally responsible.
The concept of indirect perpetuation was later amplified by this Court in Prosecutor v.
Lubanga 1 when it established eight-element test for indirect co-perpetration. Turning to
this eight element test, the liability of President Duterte may be inferred. The first
1 ICC-01/04-01/06-2842, 14 March 2012, para. 984
Page 1 of 4
among the eight elements refers to the requirement that the suspect must be part of a
common plan or an agreement with one or more persons.
The essence of this element is the critical element of criminality wherein the
implementation will in the ordinary course of events, lead to the commission of a crime.
This necessitates for a sufficient connection between the individuals who together
commit the crime and it allows responsibility to be established on a joint basis. In the
case of the Duterte, Oplan Tokhang, a policy designed to neutralise 2 drug personalities,
is greatly supported by the President. The continued implementation despite the fact of
the growing trend unresolved death warrants the conclusion of the President’s
acquiesce may imply his consent to the campaign. This may even be said to be his
contribution to the element of the crime.
The second element requires the suspect and other co-perpetuators must carry out
essential contributions in a coordinated manner which result in the fulfillment of the
material elements of the crime. Under this element, the term ‘essential contributions’ are
those whose absence would result in the frustration of the common plan to commit the
crimes .In the present case, Duterte’s mere order the PNP to mount a relentless
campaign to neutralize drug personalities may be considered as his contribution to the
atrocious acts.
The third element focuses on the suspect’s must have control over the organization.,
focusing primarily to the material ability to prevent or punish criminal conduct. In the
case before us, the implementation of Oplan Tokhang rests in the hands of the police
officers under the Presidential Power of Control 3 as couched under the Constitution and
law (RA 6975 and RA 8551). Thus, the fact of Duterte’s control over the police officers
2 Command Memorandum Circular No. 16-2016: 

-xxx- 
 
2. Purpose: This Command Memorandum Circular sets forth the general guidelines, procedures and tasks
of police offices/units/stations in the conduct of the Philippine National Police (PNP) Anti-Illegal Drugs
Campaign Plan - PROJECT: "DOUBLE BARREL support to the Barangay Drug Clearing Strategy of
the government and the neutralization of illegal drug personalities nationwide
3 See Citizen J. Antonio Carpio v. Executive Secretary. G.R. No. 96409, February 14, 1992.
Page 2 of 4
and other state agents, being able to substitute his judgment over that of the policemen
satisfies the third element.
Conjunctively, the fourth element requiring the institution to be an organized and

hierarchical apparatus of power is evident. The existing command structure of the PNP
as provided for under the law of the state is sufficient to satisfy the element.
Furthermore, the fifth element requiring that the execution of the crimes were secured
by almost automatic compliance wit the orders is present. The element requires the
leader’s controls the execution of the crime, mobilizes his authority and power to secure
compliance with his orders. In the Philippine setting, the President’s function as the
commander in chief necessarily implies his power to enforce immediate compliance
over members of the brass.
The sixth element requires the compliance with the subjective elements of the crime. The
case of
The Rome Statute enumerates the subjective elements of the charge. The Prosecution
opines that the element of superior-subordinate relationship has been successfully
proven at hand together with the requirement of effective responsibility and control,
what is left out for discussion is the requirement that his omission. The perpuator’s
liability arise out of the failure to prevent , despite knowledge of the acts and the ability
to do so.
In the present case, Duterte’s failure to prevent to commission of the crime is bolstered
by the fact that he actively supports the campaign despite the knowledge of the
growing incidence of unresolved death.
The seventh element requires the co-perpetuator to be aware of the factual

circumstances enabling him to exercise joint control over the commission of the crime
through another person(s). Duterte’s knowledge of the commission is evident especially
in lieu of his public statements of likening the war on drugs as a genocide and will be
“happy to slaughter” millions of drug addicts in his bloody war on crime. These
circumstances offer proof of Duterte’s awareness.
Page 3 of 4
The eighth requirement focuses on the co-perpetuator’s awareness of the factual
circumstances enabling him to exercise joint control over the commission of the crime
through another person(s).
Article 30 provides that individual criminal responsibility arises only if the material
elements of a crime are committed with intent and knowledge. To link the suspect to
the crime, it must be proven that he (a) meant to cause the consequence; or (b) was
aware that the consequence would occur in the ordinary course of events. At the
minimum, President Duterte is aware of the rampant extrajudicial killings brought
about by the State-sanctioned Oplan Tokhang. The concept of “awareness that a
consequence will occur in the ordinary course of events” means that, based on how
events ordinarily develop, the accused anticipated that the consequence would occur in
the future.
B. After comprehensively discussing the elements, it is necessary to delve into Duterte’s

liability notwithstanding his incumbency in office. ART 27(2) of the Rome Statute is
instructive wherein “Immunities or special procedural rules which may attack to the
official capacity of a person, whether under national or international law, shall not bar
the Court from exercising its jurisdiction over such person.”. The provision is seen as a
waiver of immunity, especially if states had acceded to the Rome Statute.
In view of the foregoing, the Office of the Prosecutor respectfully submits that:
Firstly, Philippines’ withdrawal from the Rome Statute does not affect the preliminary
examinations and subsequent proceedings before the ICC already undertaken prior to
the effectivity of the withdrawal;
 
Secondly, that the war on drugs perpetrated by State agents resulted to war crimes and
crimes against humanity over which the ICC has jurisdiction,
and thirdly, that President Duterte as Commander-in-Chief of the Armed Forces and
superior of the national police expressly commanded, condoned, and encouraged these
acts, he is an indirect co-perpetrator, the Court, in furtherance of its duty to ensure that
most serious crimes of concern to the international community as a whole must not go
unpunished, President Duterte, may be prosecuted for these acts.
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President Duterte Is An Indirect Co-Perpetrator Under Article 25 (3) (A) of The Rome Statute

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Mr. President, Your Excellencies, May it please this Court.

President Duterte is an indirect co-perpetrator under Article 25(3)(a) of the Rome

1 ICC-01/04-01/06-2842, 14 March 2012, para. 984

2 Command Memorandum Circular No. 16-2016:

Conjunctively, the fourth element requiring the institution to be an organized and

The seventh element requires the co-perpetuator to be aware of the factual

B. After comprehensively discussing the elements, it is necessary to delve into Duterte’s

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