CommentaryThe new government of Ferdinand Marcos Jr and Sara Duterte is employing tricks and propaganda to entrench impunity and ward off the International Criminal Court’s long-delayed probe of crimes against humanity committed during former president Rodrigo Duterte’s reign of terror.
The latest of these ploys is the government’s attempt, through the Office of the Solicitor General (OSG), to cripple efforts by ICC chief prosecutor Karim Khan to resume his investigation into the murder of an estimated 12,000-30,000 civilians by death squads during Duterte’s so-called “war on drugs.” On September 8, the OSG opposed Khan’s request before the ICC Pre-Trial Chamber I claiming that the thousands of killings do not amount to crimes against humanity.
This is but the latest tool in the government’s toolbox of labyrinthic maneuvers to delay and defeat the ICC’s investigation and prosecution of Duterte and his top officials for one of the gravest human rights violations in Asia.
On September 15, 2021, the ICC Pre-Trial Chamber I granted the ICC Office of the Prosecutor’s (OTP) request for authorization to commence a preliminary investigation. Asking to defer the investigation, the government upended the ICC’s efforts on November 10, 2021. The OTP, thus, “temporarily suspended its investigative activities.”
Authorities know too well that the longer they bar ICC investigators from entering the country and gaining access to evidence, the greater the chances of wiping all traces of the wide scale murders. Victims not only lack the economic and political means to claim justice but face grave reprisals from the powers-that-be as well.
Contrary to the OSG’s claims, former president Duterte and Marcos-Duterte’s governments are both unwilling and unable to investigate and prosecute former president Duterte and the leaders of the “death squads” for the widespread and systematic slaughter of civilians.
“Prisoner of conscience”
The government claims that the country’s legal and judicial processes are soundly working, repudiating then ICC chief prosecutor Fatou Bensouda’s determination that crimes against humanity have been committed in violation of the Rome Statute of the ICC. However, this is belied by the prolonged and unconscionable jailing since February 24, 2017 of Senator Leila de Lima. Her only “crime” is to have the principles, integrity, and fortitude to investigate, as then chairperson of the Commission on Human Rights, and later as chairperson of the Senate Committee on Justice and Human Rights, the alleged targeted killings on orders of mayor-turned-president Duterte.
Political dynamics
Despite the fact that Duterte’s own daughter sits as vice president, human rights and democratic forces are trying to break Duterte’s impunity and fortify the rule of international human rights law.
International criminal lawyers need to examine the political dynamics and context in which the Marcos-Duterte government is employing its latest legal move. International human rights actors need to analyze these dynamics and view them as connected to and as being part of the government’s attempts to avoid justice for crimes against humanity and other vicious forms of continuing human rights violations. This approach will enable the international community to anticipate how the ICC’s stalled investigation will fare in years to come.
Even at the earliest stages of the targeted killings of civilians on a wide scale by then president Duterte, the government was already deploying deceptive and bullying tactics to cover up, deflect and smother criticism and denunciations from Bensouda and the rest of the international community. At one point, Duterte’s army of paid apologists and trolls conjured up wild claims that the slain civilians, who mostly belonged to the poorest of the poor, were allegedly killed by rival drug gangs. They even made the ludicrous claim that drug lords were funding human rights defenders who, despite great risks to themselves, were strongly condemning the cold-blooded murders. The government even falsely claimed that Rappler – whose independent and courageous journalists, including Nobel laureate Maria Ressa, have been fearlessly documenting, investigating, and reporting on the systematic murder of unarmed civilians –was backed by the CIA. They did this in order to obfuscate Duterte’s repeated public calls to kill alleged drug pushers and petty criminals, punctuated with his signature cursing, broadcast on multiple occasions nationwide.
War on human rights
Eventually, Duterte’s murderous frenzy spilled over to the killing of environmental and human rights defenders, including journalists and lawyers, especially after the breakdown of peace negotiations between his government and the National Democratic Front, an underground organization that includes the Communist Party of the Philippines-led New People’s Army.
Lawfare became a staple for government apologists, amplified by trolls, who systematically and viciously maligned, intimidated, red-tagged, and harassed independent and principled journalists, human rights and environmental lawyers and defenders, and civil society advocates. The government primarily targeted the constitutionally independent Commission on Human Rights headed by the late Chito Gascon in its smear campaign. Sycophants in congress even attempted to allocate a measly sum of one peso for CHR’s annual budget to ingratiate themselves to Duterte.
Media campaigns
The government uses social media in its witch hunt, leading to deadly consequences for those who are red-tagged. Principled and courageous human rights and environmental lawyers and defenders suffer not only from character assassination and political persecution, but also from treacherous ambushes, assassinations, trumped up charges, and unjust imprisonment. Those wrongfully imprisoned and murdered include priests, human rights defenders, lawyers, judges, farmers, workers, indigenous people, and community and trade union organizers.
Expectedly, the Marcos-Duterte duo is resorting to black propaganda to undermine the ICC’s credibility and mandate to investigate and bring Duterte to trial.
In this age of fake news and government organized disinformation, people need to be vigilant and methodically act on a sustained and long-term basis to raise awareness about the true nature of the the ICC’s mandate.
Witch hunt
Overall, the police forces and military appear to have remained stuck for decades in a cold war ideology and the national security doctrine, ignoring quantum leaps in the development of international human rights law, international humanitarian law, international criminal law, and international environmental law. The police and military mindset seems to rigidly harbor the myopic view that the peaceful exercise of the democratic right to dissent on the part of the people, particularly journalists and political activists, means they are so-called “communists” or “terrorists.” By and large, police and military imply through red-baiting that being vigilant in safeguarding democratic, human and environmental rights makes one a true blue “communist terrorist.”
The series of killings of red-tagged personalities and alleged communist leaders seems reminiscent of what happened in the aftermath of the 1965 coup wherein the military summarily killed 80,000-1 million alleged members and sympathizers of the Communist Party of Indonesia (Partai Komunis Indonesia, PKI).
Conjuring up the “communist” and “terrorist” bogeyman, the government came up with the Anti-Terror Act. Citing the Maoist-oriented New People’s Army insurgents, the government has been shooting from the hip, indiscriminately red-tagging and arresting and jailing unarmed civilians on trumped-up charges. The Anti-Money Laundering Council has been using this law to freeze, without due process of law, the financial accounts of individuals and nongovernmental organizations engaged in grassroots developmental work. To be red-tagged is tantamount to being issued a death warrant by armed state actors, notably the police, military, and their “force multipliers.”
Destroying the rule of law
Nothing illustrates this cold war archetype more than the ₱17 billion budget allocated for 2022 by congress to the National Task Force to End the Local Communist Armed Conflict (NTF-ELCAC). Defenders of environmental and human rights and democracy, including lawyers and journalists, find themselves at the receiving end of the NTF-ELCAC’s red-tagging assaults, with police and military backing up its nefarious witch hunts. This is a violation of the police and military’s legal obligation to respect, protect, promote, and fulfill the constitutionally guaranteed human rights of these civilians, especially to exercise their right to free speech, press, expression, association, and assembly.
The government’s red-tagging activities, coupled with multiple assassinations, seem calculated to silence exposés of official corruption and abuse of power. These witch hunters undermine and destroy the country’s democratic institutions and, ultimately, the rule of law.
Military and police institutions are among the elements fighting against the ICC’s push to investigate the 12,000-30,000 civilian deaths at the hands of the police, their “force multipliers,” and so-called “vigilantes” believed to be undercover state agents themselves. Aside from police and military institutions, members of Duterte’s own political dynasty, proteges in congress, courts, and executive departments and offices, like the OSG and the Department of Justice, are attempting to thwart the ICC’s attempts to gather evidence of crimes against humanity penalized under the Rome Statute.
Democratic voices
Thankfully, there are factors that can overcome the hurdles that the government puts up to quell attempts to seek accountability for the worst ever crimes committed against civilians in the country’s post-World War II history. These crimes surpass the dark human rights record of Marcos’ own father, the late pillager and despot Ferdinand Marcos Sr during martial law. These crimes are equaled by, if they do not surpass, the atrocities committed by the Spanish guardia civil, by American occupation forces, and by Japanese invaders. These factors include:
- the internationally backed creation, mandate, and operation of the ICC with its track record of strict adherence to the Rome Statute of the ICC, judicial precedents, and its core legal documents
- the existence of victims of crimes against humanity in the country who courageously participated in the ICC pre-trial proceedings despite risks of reprisal from authorities and the abject lack of domestic institutional mechanisms to safeguard, conceal, and protect their identity, location and wellbeing
- the existence of principled, independent, courageous and committed lawyers, human rights and environmental defenders, church, and civil society advocates with high level ground and operational expertise, international networks, and capacity for timely documentation and dissemination of human rights alerts
- the existence of independent, principled, courageous and committed investigative journalists, steeped in the adversarial tradition of journalism, such as those belonging to the National Union of Journalists of the Philippines, Philippine Center for Investigative Journalism, and Vera Files, with international presence and networks
- the existence of the Commission on Human Rights with a proven track record of adherence to the Paris Principles and fundamental tenets of international human rights law, and more specifically, the rights-based approach, with gender, child, ethnic and persons with disability perspectives
- the existence, though they are in the minority, of progressive state actors in various branches and levels of government, particularly the courts and congress
- the existence of domestic and international human rights organizations, like Amnesty International which has historically documented cases of human rights violations in the Philippines particularly during Marcos’ martial law era
Although under siege, and despite high risks to their own life and freedom, these human rights actors unrelentingly engage in various forms of human rights defense, including documentation and evidence-gathering, litigation, advocacy, networking, community organizing, human rights and paralegal training, grassroots capacity-building, and human rights culture-building. It is worth mentioning that, broadly, the human rights community includes torture survivors and freedom fighters from Marcos’ martial law era. They embody and represent the continuum of the human rights community and media’s glorious history and tradition – consecrated in tears and blood – of preserving and fighting for the people’s cherished democratic rights and freedoms.
The UN Human Rights Council and its special procedures, UN human rights treaty bodies, the UN Office of the High Commissioner for Human Rights and various regional and state actors also play critical roles in exacting accountability for these crimes against humanity. In addition, should they choose to commit to the advancement of their human rights obligations, private corporations – particularly those steeped in environmental and social governance principles and practices – may eventually emerge as another major player.
Another significant factor is the interconnectedness and real-time communication of our world today.
Critical mass
All these factors enable human rights actors to cast a spotlight on the government’s lame attempts to hide the impunity with which armed state actors and their so-called “force multipliers” perpetrate their abhorrent “core crimes” under international law. All this helps expose the vicious lies of the government’s propaganda machine, which continued even at the height of the covid-19 pandemic.
Hopefully, these human rights forces can help fulfill and realize the ICC’s raison d’être, despite the Marcos-Duterte regime’s persistent attempts to frustrate the ICC mandate to dismantle the wall of impunity. Human rights forces will not capitulate to the government’s legal maneuvers and terror tactics, even as the government has veered toward authoritarianism.
The convergence of these state, civil society, and international actors inevitably forms a powerful critical mass, provided they mutually, resolutely, and constantly support each other, in a symbiotic way, especially in the face of assaults by enemies of democracy, human rights, and sustainable development.
We are witnessing in this country, and other parts of the world, the struggle between authoritarian, despotic, and fascist blocs, on the one hand, and democratic, environmental, and human rights forces, on the other.
With highly perceptive and seasoned ICC prosecutors and judges – particularly ICC chief prosecutor Karim Khan – the government’s subterfuge and legal maneuvers will not prevail.
A licensed attorney, Perfecto Caparas serves as a teaching fellow and founding director of the Center for Holistic International Human Rights Law Praxis of the National University of the Union of Myanmar-Burmese American Community Institute. An awarded poet and investigative journalist, Caparas is completing his Doctor of Juridical Science degree at Indiana University Robert H. McKinney School of Law.
Suggested citation: Perfecto Caparas, How Philippine Authorities Appear to be Scheming to Bar ICC Probe of Duterte-Era ‘Death Squads, JURIST -Professional Commentary, September 20, 2022, https://www.jurist.org/commentary/2022/07/Perfector-Caparas-Philippines-Duterte-ICC-Crimes-Against-Humanity/.
This article was prepared for publication by Rebekah Yeager-Malkin, Deputy Managing Commentary Editor. Please direct any questions or comments to she/her/hers at commentary@jurist.org
