Bongbong Marcos and the ICC: What of the Philippines and the ‘War on Drugs’?

The issue of human rights abuses during the martial law period under Ferdinand Marcos has been thrown into the spotlight with the election of his son Bongbong. But what does the return of the Marcos clan to the Malacañang palace mean for the families of as many as 30,000 victims of former president Rodrigo Duterte’s war on drugs?

 

The landslide electoral victory of Ferdinand ‘Bongbong’ Marcos, son of former dictator Ferdinand Marcos Snr, has justifiably reanimated debates surrounding the backsliding of democracy, corruption, historical revisionism, and authoritarian leadership in the Philippines. Once seen as a regional beacon for democracy after ousting Marcos Snr during the 1986 People Power Revolution, many of the cornerstones of liberal democracy were attacked by former president Rodrigo Duterte between 2016 and 2022, laying the groundwork for the Marcos’ return.

One of the most notable examples of this was Duterte’s attack on human rights during the Philippines ‘war on drugs’, which saw as many as 30,000 people killed. Such was the level of violence, the International Criminal Court (ICC) announced a full investigation into whether the crime against humanity of murder had taken place during the drug war. As a consequence of this, there is concern about how Marcos will handle human rights issues within the war on drugs, given that his father was similarly responsible for the murder, disappearance, and torture of thousands during the years of martial law between 1972 And 1986. Here we will look at what the election of Marcos means for the families of as many as 30,000 victims of former president Rodrigo Duterte’s war on drugs, and his probable response to the International Criminal Court’s proposed investigation.

Duterte’s war on drugs

Rodrigo Duterte’s ‘war on drugs’ came to represent one of the cornerstones of his presidency. Aiming to get tough on drug use, criminality, and corruption, Duterte’s policy led to the extra-judicial murder of as many as 30,000 people. Though officially denied by the government, there is clear evidence that such killings were state orchestrated, often undertaken by police in an unofficial capacity, thus potentially representing crimes against humanity.

The vast majority of victims were the urban poor who had been linked to drug use, leading to accusations by Amnesty International that the drug war represented a ‘war on the poor’. It was on this basis that the ICC announced a preliminary investigation into the war on drugs in February 2018. In response, in March Duterte gave notice of the Philippines’ withdrawal from the ICC, owing to ‘baseless, unprecedented and outrageous attacks on my person as well as my administration’. The Philippines’ withdrawal took effect a year later from March 2019, meaning that the court theoretically retains jurisdiction for crimes committed prior to this date.

ICC Interventions post-withdrawal

Shifting forward to September 2021, the prosecutor of the ICC Karim Khan was authorised by the pre-trial chamber to undertake a full investigation of the Philippines war on drugs, as well as similar killings which took place in the city of Davao whilst Duterte was mayor between 2011 and 2016. In November, the Philippines’ government requested that the investigation be deferred so that they could carry out an investigation and punish perpetrators, according the principle of complementarity on which the court operates. In June this year however, the ICC pre-trial chamber announced a resumption of the investigation.

The reasons offered for this were that the government of the Philippines had failed to investigate killings in Davao, crimes other than murder, and significantly, whether killings ‘were committed pursuant to a policy or occurred systemically’. This final reason is critical, as it would allow the court to ascertain ‘whether any person in the higher echelons of the police or government may be criminally responsible’. As Duterte publicly admitted in 2018 that his ‘only sin is the extrajudicial killings’, establishing that drug war killings represented a policy seems probable.

Marcos on the war on drugs

Despite the popularity of both Duterte and the ongoing war on drugs, Marcos was more circumspect on the issue during the presidential campaign trail than perhaps could be expected. Whilst upholding the importance of pursuing the drug war with the same ‘vigour’, Marcos emphasized the need for prevention and rehabilitation. On the ICC investigation however, Marcos suggested that investigators could visit the Philippines as ‘tourists’, but was not sure ‘what they expect the government to do beyond that’. He also stressed the ability of the Philippines’ judicial system to deal with the case, arguing that he did not ‘see the need for a foreigner to come and do the job for us’.

Marcos’s choice of Sara Duterte, Rodrigo Duterte’s daughter as his vice-presidential running mate also renders the possibility of cooperation with the prospect of an ICC investigation remote. As Filipino vice-presidents are elected separately to the president, they do not necessarily always have a close relationship with the president, as shown by former vice-president Leni Robredo’s criticism of the drug war. However, the importance of the Duterte clan in ensuring the election of Bongbong Marcos means that disagreements on large policy issues are less likely.

Withdrawal and the ICC

As the only other country to have fully removed itself from the ICC, Burundi potentially offers us an insight into what may be on the horizon in the Philippines investigation. In response to the announcement of a preliminary investigation into killings, arbitrary detentions, enforced disappearances, torture, and sexual violence in 2016, Burundi withdrew its membership of the ICC in 2017, becoming the first country to do so. They argued that the court had ‘shown itself to be a political instrument and weapon used by the west to enslave’. Though the investigation started in time to legally obligate Burundi to cooperate, as Whiting notes, the prospects for that being the case were always dim. If the state does not favour an investigation, ICC investigators can be blocked from entering the country, and other requests for documents or witnesses can be rebuffed.

As a result, withdrawal presents a real challenge in investigating and prosecuting crimes. This is in part because withdrawn states claim they are not bound to cooperate in ‘the arrest and surrender to the Court persons in respect of whom the ICC has issued an arrest warrant and a request for assistance’. Burundi also approved a new constitution in 2018 that outlawed extradition, as well as extending the presidential term from five to seven years. Although a proprio motu (on the prosecutor’s own authority) investigation has been initiated in Burundi, there have been few updates on the progress of gathering evidence since. In many ways, this could come to mirror the process that could unfold in the Philippines.  

In order to prevent justice being denied to the people of the Philippines, and a dangerous precedent for impunity being set by allowing states under investigation to withdraw from the ICC, issues of non-cooperation with the court need to be addressed. At the time of writing, Marcos has confirmed that the Philippines will not be re-joining the ICC, and the government is considering ignoring the investigation ‘since we are not subject to it’. Ultimately, though allowing some level of cooperation with the ICC investigation may assuage some of the fears that liberals in the country have about human rights, Marcos is also unlikely to allow scrutiny that would inevitably raise difficult questions about crimes which took place during his father’s rule. Though a reckoning with history is perhaps necessary, it remains something Marcos will be keen to avoid.

Dr Euan Raffle is an ESRC funded post-doctoral fellow at the University of Leeds. His research focuses on state violence in the context of drug policy, Southeast Asia, and critical security studies. His twitter handle is @Euan_Elffar.

 

Image credit: Store Norske Leksikon, licensed under CC BY NC SA 2.0.

 

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