Justice delayed is justice denied. It has been two years since former President Rodrigo Roa Duterte ended his term and left Malacañang. It is only recently, however, that the humanitarian crimes he committed during his six-year term are being investigated. The catch is that this unearthing of concealed extrajudicial killing cases is influenced by an external actor – the International Criminal Court (ICC). This extraneous pressure has led the Marcos Jr. administration to conduct a quad-committee hearing, consisting of House committees, seeking the truth behind the transgression during the implementation of Duterte’s ‘War on Drugs’. With the current Philippine political climate, what exactly does this ICC Probe mean for the families of extrajudicial killing (EJK) victims? More so, what are its implications between the divisive internal strifes of the Philippines’ two influential political dynasties?
Duterte’s term, which started in 2016 and ended in 2022, was quickly tainted with numerous reports of human rights violations linked to his war on drugs, infamously known as ‘Operation TokHang’. What was originally a peaceful intervention through ‘katok’ (knocking) and ‘hangyo’ (pleading) quickly turned into a form of police brutality. The International Center for Transitional Justice (ICTJ) estimates a total of 6,000 to 30,000 lives lost during the anti-drug campaign, most of which occurred in low-income neighborhoods in urban areas. At the very least, an approximate of 2,500 of those killings were pointed towards the Philippine National Police (PNP), a civilian law enforcement which Duterte weaponized. The same group of law enforcers followed the direct orders of the former president, even if it meant tampering and falsifying evidence just to warrant their illegal killings. This confidence to commit violence against civilians stems from Duterte’s statements that somehow provided the armed forces a ‘license to kill’. It was in this hierarchical order that the unlawful killings proliferated, with the justice system rendered silent, and Duterte’s forces unstoppable.
Gaining infamy from the perspective of global media outlets, the Philippines’ case of human rights violations caught the attention of the ICC. The ICC aims to provide assistance to states with a failed justice system against heinous crimes. They investigate, as well as prosecute, high-ranking officials that may have committed or may have taken part in atrocities. The Philippines officially entered the ICC as its 117th member in 2011, as ratified by the Rome Statute. In 2016, the ICC expressed its motive to conduct a preliminary examination on the War on Drugs committed under Duterte’s presidency. Immediately after, former President Duterte withdrew from the Rome Statute. By 2018, the Philippines submitted its withdrawal, which was only officially recognized by the ICC in 2019. The country’s swift exit as a member-state, pre-empted by Duterte, was not enough to stop the authorities from pursuing their probe. The ICC retained its stance and investigated cases from 2016 up until 2019.
Come 2021, the preliminary examination concluded that there is adequate evidence to move forward with a formal investigation. The ICC cites ‘Crimes Against Humanity of Murder and Torture’ as one of the possible charges against those who were involved. In the same year, the Philippine government stood firm and submitted a deferral request letter to the ICC, stating that the national legal systems are doing well on their own. Thus, there is no need for ICC’s intervention. The following year, 2022, Justice Secretary Jesus Crispin C. Remulla warned that the ICC has no reason to meddle in local affairs; this is coming from a former Senior Deputy Majority Leader of the House of Representatives during Duterte’s rule. Remulla buttresses his stance by emphasizing that foreigners are in no place to think that they know how to run the Philippine government better than Filipinos themselves. A year later, 2023, the House Committee on Human Rights urged the government to extend its cooperation to the ICC to which Justice Secretary Remulla expressed the need for a careful deliberation of the proposal. This change of temperament of the Department of Justice (DOJ) secretary signals a shift from the department’s previous closed stance to a more open standpoint. This push and pull dynamic marks the long standing history between the Philippines and the ICC, including the many attempts of the international court in investigating the EJK.
Earlier this year, 2024, President Marcos Jr. made it clear to the public that he will not allow the International Criminal Court to conduct its investigation in the Philippines’ case of drug wars. President Marcos Jr. raised the issue of the international court’s jurisdiction and how the probe could undermine the country’s sovereignty as a reason for the Philippines’ refusal to collaborate with the ICC. Recently, a series of quad-committee hearings have taken place to further investigate the extrajudicial killings during Duterte’s term as president. With this, President Marcos Jr. reaffirms the local agencies’ efforts, including the Department of Interior and Local Government (DILG) and the PNP, in looking into Duterte’s anti-drug campaign. The incumbent president, however, remains clear that the government will only cooperate with the ICC if permitted by former president Duterte.
To cooperate or not to cooperate
Behind the ICC’s mission of lending a hand to nations with failed justice systems is a growing concern and skepticism. Many have doubted the ICC’s capabilities as an international entity, where there are instances that prove the legitimacy of their intervention to be superficial. In the case of the ongoing genocide in Palestine inflicted by Israel, the ICC initially lacked the ability to hold Israel liable for its humanitarian crimes against Palestine. This is despite the serious international crimes being committed by Israel, including genocide, humanitarian crimes, and even apartheid. While new developments in the probe of ICC upon Israel’s inhumane proceedings have emerged, including the issuance of an arrest warrant to Israel Prime Minister Benjamin Netanyahu, it remains unclear how the state will cooperate with such pressure from the international body. Contrastingly, Israel also denotes how the ICC remained lukewarm in terms of Hamas’ attacks on their soil. In a way, the country asserts that if the Israeli forces are investigated for their war crimes, then so should the Palestinians be. The Arab Center of Washington DC considers this war as a test for ICC’s credibility to prove itself as an objective court and not only a tool for powerful nations to manipulate.
A similar scenario was witnessed in the case of the Democratic Republic of Congo that suffered from their former president, Joseph Kabila, and his crimes. The ICC began its investigation in Congo in 2004, focusing on reports of war crimes and crimes against humanity. Sixteen (16) years have passed and the ICC is still in its process of investigation to charge senior and military officials of their crimes. While the court reiterates its continuing dedication to the case, it is undeniable how the elapsed period is affecting the supposed justice for the nation. A key determinant of the International Criminal Court’s success in its probe is the cooperation of the country that it is dealing with. The Rome Statute made it very clear that the ‘rule of complementarity’ states that the international court cannot look into the cases that are currently being addressed by the national court, unless the court has shown unwillingness or improper handling of the alleged crimes. With the Philippines’ departure from the Rome Statute, the ICC cannot implement an in-depth investigation in the country.
An aid to nations with incompetent judicial branches
While it may take years, decades even, for the ICC to put inhumane political leaders to trial, it has succeeded in some cases. The indictment of Kenyan lawyer Paul Gicheru is an example. The lawyer was responsible for influencing witnesses of the court using corruption and bribery. His action significantly affected the justice system of many cases in Kenya. The case of Ahmad Al Faqi Mahdi also proved the international court’s capabilities. Following his crime of directing attacks to religious and historical buildings and monuments situated in northern Mali’s Timbuktu, a UNESCO-protected city, the Islamist rebel was sentenced to nine years of imprisonment by the ICC. These two instances have shown how influential the International Criminal Court is and how, for some situations, they are able to fulfill their mission of providing justice to where it is lacking.
In dire need of assistance
For the longest time, the justice system remained unresponsive to ‘War on Drugs’ victims as flagged by the Human Rights Watch. This is simply because the justice system itself was being targeted under Duterte’s presidency. An ‘assault on the Judiciary’ is how the Supreme Court described the situation, emphasizing the alarming state of legal professionals in the country during the previous administration. At the very least, 61 prosecutors, lawyers, and judges have been murdered since 2016. If not killed, the legal practitioners would have been red-tagged or harassed. This is beyond an intimidating tactic; this is a direct violation of human rights. By employing this, the powerful can silence and disarm any opposing forces that may go against it. As a repercussion, there would be less lawyers available to represent the families of the victims of EJK with the fear of losing their careers, or worse, their lives.
When cracks turn into breakages
The broken judiciary system in the country only worsens the conditions, which, in turn, makes the Filipinos unable to actively seek justice. First, the families fear for their own safety, a reason why they no longer decide to continue their fight for justice. Many of them were not given the opportunity to file cases, as it remained burdensome. The political atmosphere and lengthy process of filing cases makes it even harder to hold a public official accountable. Second, a lot of these families were coerced to put their signatories on waivers that prevents them from filing cases against the police force. Provided these terms, the victims of EJK and their families, mostly consisting of the urban poor, are deemed powerless against bigger political institutions. Once permitted, the ICC’s issuance of an arrest warrant against former President Duterte would open the case of EJK during his term. It could start a deeper probe on the involvement of the PNP in the execution of the ‘War on Drugs’. Such force would create traction for the local justice system to take on under the Marcos Jr. administration. With Duterte no longer in power and with the government agencies under a new administration, the conduct of investigations could be more free and fair.
The Philippines must cooperate with the ICC
For a state that was recently governed by a suspected human rights violator and facilitates a faulty justice system, the ICC’s support strikes as the country’s only remaining way to seek proper litigation. Serving its purpose as the last resort for states with failed judiciary branches, the ICC’s expertise in investigating crimes against humanity and other charges can bring forth the justice that the Filipinos have longed for years. While it must be acknowledged that the ICC’s probe on the case of former President Duterte does not instantaneously guarantee complete justice nor full accountability on Duterte’s end, their efforts could still complement those of our national courts.
United they stand, divided they fall
The Philippines, through Marcos Jr.’s administration, must consider extending its effort in cooperating with the investigation. The ICC can only move forward if permitted by the current government; their access to government records, data, and statistics over the period of the violent “War on Drugs" can be pivotal for their probe. Apart from this, the Philippines also has the chance to re-enter the ICC in order to fully cooperate with their procedures. The Philippines, through Marcos Jr.’s administration, must consider extending its effort in cooperating with the investigation. The ICC can only move forward if permitted by the current government; their access to government records, data, and statistics over the period of the violent “War on Drugs" can be pivotal for their probe. Apart from this, the Philippines also has the chance to re-enter the ICC in order to fully cooperate with their procedures. In hindsight, this entire assistance intervention of the ICC could only be a game of politics for both the Dutertes and the Marcoses. While the current administration stands on neutral grounds, it cannot be unfathomable how the Duterte and Marcos administrations’ responses to the ICC have changed over the years. What was originally a firm opposition can become a malleable stance that can be negotiated with. It is not totally unthinkable to see this situation as a politically charged chess move by Marcos Jr. to reduce the political power of the Dutertes. This is a presumption consequent to the recent political divide between the two political clans that once campaigned and won under the banner of ‘unity’. While the current administration stands on neutral grounds, it cannot be unfathomable how their response to the ICC has changed over the years. What was originally a firm opposition has become a malleable stance that can be negotiated with. It is not totally unthinkable to see this situation as a politically charged chess move by Marcos Jr. to reduce the political power of the Dutertes. This is a presumption consequent to the recent political divide between the two political clans that once campaigned and won under the banner of ‘unity’.
The quad-committee hearing attended by former President Rodrigo Roa Duterte is far from being over. Similarly, the ICC may still take the remaining time of the year before releasing an arrest warrant against Duterte. Archaeological artifacts take time to be dug, and in an alike fashion, the crimes committed under the Duterte administration might need years to be fully unearthed. Nevertheless, what is buried will one day be uncovered.
In the midst of all these political tug of wars, one sentiment continues to be apparent: The justice system, in the first place, should never have come to this.
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