By Gemmo Fernandez*
On 14 June 2021, the Prosecutor of the International Criminal Court (ICC) Fatou Bensouda announced the completion of her preliminary examination into the Philippine government’s deadly campaign against illegal narcotics. She concluded that there is reasonable basis to believe that a crime against humanity was committed in the Philippines, with state actors engaging in widespread and systematic attacks against the civilian population pursuant to a state policy.
Further, she found that there was a marked failure on the part of the Philippine government to take meaningful steps to investigate or prosecute these killings. Accordingly, Bensouda sought authorisation from the ICC to proceed with an investigation which, should it be granted, would allow her to gather further information for the purposes of indicting persons before the court.
The Philippine government responded with anger. President Rodrigo Duterte described the ICC as ‘bullshit’, asked why he should be made to defend himself before ‘white people’, and stated that the court wanted the ‘country to go down the drain’. Other members of the government stated that the prosecutor’s move was ‘legally erroneous’ and ‘politically motivated’, some saying that Filipinos should take it as an insult that the prosecutor deemed that the legal institutions of the Philippines were not working.
The government declared that it will not participate in any proceedings and that the ICC ‘will just waste [its] time and resources’ since without Manila’s participation, all information that the ICC may gather would amount to hearsay from ‘political enemies of the president’.
This reaction is unsurprising given the antagonistic attitude of the Duterte administration towards the ICC. The Court has been in the crosshairs of the government since 2018, when Bensouda announced that she had opened a preliminary examination into the deadly campaign in the Philippines. The government launched a barrage of attacks against the Court, with Duterte calling its members ‘white idiots in the EU’. A month later, Duterte announced that the Philippines was withdrawing from the ICC, contradicting earlier pronouncements that he was prepared to defend his policies and accept their legal consequences.
The Philippine government’s reaction reflects the typical populist-strongman behaviour that Duterte has exhibited since his election in 2016. It reflects Duterte’s anti-establishment tendencies in refusing to honour the duties that the Philippines freely agreed to uphold and to recognise duly constituted authorities. The ICC, under its founding statute, retains jurisdiction over crimes committed in the Philippines between its ratification and its withdrawal.
Attempts by other international bodies to hold the Philippine government to account have encountered difficulties similar to the ICC’s. When the European Parliament passed a resolution urging the Duterte administration to investigate the extra-judicial killings in the Philippines, the government decried this conduct as ‘interference’. Likewise, when the UN Human Rights Council sought to investigate these human rights violations, the administration deemed this as an affront to the country’s sovereignty and threatened to withdraw from the Council.
Attempts at domestic inquiries have met the same fate. When a senator critical of Duterte’s policies called for an investigation of the extra-judicial killings, the government responded by imprisoning her on trumped-up drug charges. When the Commission on Human Rights began probing the killings, the legislative branch attempted to scale down its budget to 1000 pesos (US$20), effectively rendering the Commission defunct.
The ICC Prosecutor’s request for authority to investigate the Philippine anti-drug campaign is a welcome development for the victims of Duterte’s deadly crackdown. As reports note, the government has been slow to act or has demonstrated a passive stance towards investigations. Non-governmental organisations have largely taken on this investigative role, but they have limited capacities.
An examination by the ICC, with its full resources — including those of its member states — promises to provide an alternative forum for investigating human rights violations in the Philippines. It also offers another avenue for looking into the criminal responsibility of various officials to whom local institutions have shown deference.
However, expectations need to be tempered. Whether this would change the government’s policy and attitude towards any form of oversight is another matter. Duterte has built his presidency on the issue of illegal narcotics. During his 2016 election campaign he argued, despite evidence to the contrary, that drugs were the most significant problem afflicting the Philippines. He presented a ‘tough-on-crime’ and ‘man-of-action’ persona, promising to ‘fatten the fish of Manila Bay’ with the bodies of drug traffickers.
With his presidency built on this narrative, Duterte’s staunch defence of his deadly anti-drug policy and efforts toward staving off any independent inquiry come as no surprise. To this end, Duterte keeps telling Filipinos: ‘if you have done nothing wrong, you have nothing to fear’. If only he could tell himself the same thing.
*About the author: Gemmo Fernandez is a doctoral candidate in the College of Law, The Australian National University.
Source: The article was published by East Asia Forum