Commentary by Perfecto Caparas

The government of Ferdinand Marcos Jr and Sara Duterte employs 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.” Last September 8, 2022, OSG opposed Khan’s request before ICC Pre-Trial Chamber I claiming, among others, that those thousands of killings do not amount to crimes against humanity.

Let everyone be warned. This is but the latest in the government’s toolbox of labyrinthic maneuvers to delay and totally defeat 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, ICC Pre-Trial Chamber I granted the ICC Office of the Prosecutor’s (OTP) request for authorization to commence a preliminary investigation of the situation from November 1, 2011 to March 16, 2019. Asking to defer the investigation, government upended ICC’s efforts on November 10, 2021. 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 out traces of evidence of the widescale murder of victims and their kin, who not only lack the economic and political means to claim justice but face grave reprisals from the powers-that-be as well.

Verily, contrary to OSG claims, former president Duterte’s and Marcos-Duterte’s governments are both unwilling and unable to investigate and prosecute, genuinely and in good faith, former president Duterte and leaders of the “death squads” for the widespread and systematic slaughter of civilians.

“Prisoner of conscience”

What belies government’s claim that the country’s legal and judicial processes are soundly working – in 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 – is the prolonged and unconscionable jailing since February 24, 2017 of Senator Leila de Lima. She, whose 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 targeted killings allegedly on orders of mayor-turned-president Duterte.

Political dynamics

Notwithstanding that Sara Duterte, Duterte’s own daughter, sits as vice president, human rights and democratic forces will try and smash into smithereens 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 as being connected to and forming part of government’s manipulations to reinforce impunity for crimes against humanity and other vicious forms of continuing human rights violations. This approach will enable the international community to anticipate how ICC’s stalled investigation will fare in years to come.

Even at the incipient stages of the targeted killings of civilians on a widescale at then-president Duterte’s apparent behest, government has already been deploying combinations of deceptive and bullying tactics to cover up, deflect and smother criticisms and denunciations from Bensouda and the rest of the international community for the horrible killings. 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 killed allegedly by rival drug gangs. They even made the ludicrous claims that drug lords were funding human rights defenders who, despite great risks to themselves, were strongly condemning the cold-blooded murders. 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 purportedly backed by the CIA. This, in order to obfuscate the clear import of Duterte’s repeated public calls to kill alleged drug pushers and petty criminals, punctuated often with his signature cursing in the vernacular broadcast on multiple occasions nationwide.

War on human rights

In due time, 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 their 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. Government primarily targeted the constitutionally independent Commission on Human Rights headed by the late Chito Gascon in its smear campaign against promoters of the basic human rights of the people to life and due process of law. 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

Government uses social media in its witch hunts, leading to deadly consequences on the part of those red-tagged. Principled and courageous human rights and environmental lawyers and defenders suffer not only from character assassination and political persecution, but from treacherous ambushes, assassinations, trumped-up charges, and unjust imprisonment as well. Those wrongfully imprisoned and murdered included priests, human rights defenders, lawyers, judges, farmers, workers, indigenous people, and community and trade union organizers.

Expectedly, the Marcos-Duterte tandem will resort to black propaganda to undermine ICC’s credibility and mandate to investigate and bring Duterte to trial.

It is in the arena of information dissemination, in this age of fake news and government’s organized disinformation, that the people need to be vigilant and methodically act on a sustained and long-term basis to raise people’s awareness about the true nature of the ICC’s mandate in order to effectuate the latter’s investigation.

Witch hunt

Broadly, police and military orientation appears to have remained stuck for decades in cold war ideology and the national security doctrine, notwithstanding quantum leaps in the development of international human rights law, international humanitarian law, international criminal law, and international environmental law, especially during the turn of the 21st century. 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, equates to their being 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” bogey, government came up with the Anti-Terror Act. Citing the Maoist-oriented New People’s Army insurgents, government has been shooting from the hip in indiscriminately red-tagging and arresting and jailing unarmed civilians on trumped-up charges. The Anti-Money Laundering Council has been using this law in freezing, 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 NTF-ELCAC’s red-tagging assaults since police and military apparatus back up its nefarious witch hunts. This, notwithstanding 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.

Government’s red-tagging activities, coupled in not so few instances with gun slayings, 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 ranged against the ICC’s push to investigate the 12,000-30,000 civilian deaths in the hands of the police, their “force multipliers,” and so-called “vigilantes” believed to be none other than 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 OSG and Department of Justice, will definitely thwart ICC attempts to gather evidence that are indispensable to prosecute those who are most responsible for murder and other forms of crimes against humanity penalized under the Rome Statute of the ICC.

Democratic voices

Thankfully, critical factors can help counteract and hopefully overcome the legion hurdles that 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. One that surpasses the dark human rights record of Marcos’ own father, the late pillager and despot Ferdinand Marcos Sr during martial law. One that equals, if not surpasses, 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 participate in 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 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 worked and 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, this 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’s 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 on matters involving “core crimes” under international law.

Another significant factor is the interconnectedness and communication in real time of our world today.

Critical mass

All this enables an environment wherein human rights actors can cast a spotlight on government’s lame attempts to entrench 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 government’s propaganda machine concerning the targeted killings that persisted even at the height of the covid-19 pandemic.

Hopefully, these human rights forces can help fulfill and realize ICC’s own raison d’être notwithstanding Marcos-Duterte’s persistent attempts to frustrate the ICC mandate to dismantle the wall of impunity surrounding the various forms of crimes against humanity committed during Duterte’s presidency. Hopefully… insofar as human rights forces will not capitulate to government’s legal maneuvers and terror tactics and inasmuch as government has gradually veered towards the authoritarian path.

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.

This critical human rights mass can, thus, decisively entrench the rule of international human rights law by means of judicial accountability, among other legal means.

We are witnessing in the country, and in other parts of the world, the spectacle of 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 in the person of ICC chief prosecutor Karim Khan – government’s subterfuge and legal maneuvers certainly will not prevail over their firm resolve to dismantle impunity and bring Duterte and his minions to the bar of international justice.

—————————————————————————————————————————About the writer:

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.

 This commentary appeared in Jurist in an edited version. 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/2022/09/perfector-caparas-philippines-duterte-icc-crimes-against-humanity/