Impunity may become institutionalized gov’t policy

In seeking to quash the inquiry of the International Criminal Court (ICC) into the Philippines’ “war on drugs,” President Ferdinand Marcos Jr. may be institutionalizing impunity for the systematic mass violence under his predecessor. 

“Impunity” occurs if perpetrators of human rights violations and other crimes are able to avoid any procedure that can lead to their indictment, arrest, trial, and, if found guilty, punishment. It can be discerned from a pattern of obstruction and evasion in domestic institutions, as independent domestic and international institutions seek accountability. 

If the perpetrators succeed in achieving impunity, their victims are deprived of justice. The way it looks, the Marcos Jr. administration’s approach to the ICC may evade even just the investigation of the drug war. 

Last Sept. 8, Solicitor General Menardo Guevarra, who served as justice secretary under President Rodrigo Duterte, asked the ICC to deny the prosecutor’s intent to resume the investigation into the brutal drug war. The Philippine government has repeatedly argued that the ICC has no jurisdiction in the Philippines despite the Supreme Court’s ruling that the country continues to have obligations to the global tribunal when it was a member from 2011 to 2019. 

Human rights activists condemn the Duterte administration’s bloody war on illegal drugs. —HUMAN RIGHTS WATCH PHOTO

Duterte line

The Marcos Jr. administration claims that the Philippines has been neither unwilling nor unable to carry out domestic investigations and prosecutions on the killings. Guevarra reprises the Duterte administration’s line that under a complementarity principle, domestic investigations trump the ICC.

A single prosecution may be the exception that proves the rule: Three police officers were tried and convicted of murdering 17-year-old Kian delos Santos in an antidrug operation in 2017. Yet, between 6,201 (according to the Philippine Drug Enforcement Agency) and 30,000 (based on the ICC Prosecutor’s estimate) persons have been killed in antidrug operations. The Duterte administration did not investigate or prosecute thousands of other potential cases.  

In 2021, the Department of Justice (DOJ) then headed by Guevarra announced a review of 52 cases of possible extrajudicial killings related to the drug war—a number that human rights groups have described as misleading and grossly insufficient. The Commission on Human Rights also found that the previous administration encouraged a culture of impunity by not acting on cases against the foot soldiers of the drug war.

Today, it has become clear that the “war on drugs” was not genuinely against crime. Early in 2020, the Philippine National Police (PNP) and the United Nations Office on Drugs and Crime (UNODC) acknowledged that the campaign failed to reduce the supply of illegal drugs and curb drug-related crime in general. Ostensibly aimed at crime and corruption, the state-sponsored deadly campaign against drug traffickers was an emerging type of political violence that seemed to boost Duterte’s popularity and help win elections. 

But the government appeared to have abandoned large-scale violence amid protests over Kian delos Santos’ death and when the ICC, as well as the United Nations, the European Union and other agencies ramped up their censure. When Duterte was president, the Philippines’ withdrawal from the ICC and the DOJ’s foot-dragging were patently self-serving. 

De Lima’s case

Worse, the successive recantations of witnesses against the former senator Leila de Lima—who has been detained at the PNP headquarters since 2017 on drug trafficking charges—have illuminated accusations that then Justice Secretary Vitaliano Aguirre and other officials had coerced these witnesses into implicating her in crimes she did not commit. 

The Marcos Jr. administration’s actions go beyond an individual leader or group seeking to shield itself from accountability. It appears that the new President intends to sustain impunity for Duterte’s “war on drugs” and institutionalize it as policy. But continuing the Duterte administration’s ploys infuses impunity into the state as an institution. Denial of meaningful domestic investigation and obstruction of an international probe are implicating the new administration as the protector of a possible gross injustice.

President Marcos Jr. had earlier made clear that he had no intention of cooperating with the ICC. He was the only major presidential candidate to take such a position. Vice President Sara Duterte may also have an active interest in resisting any inquiry since she was mayor of Davao City for part of the time under the probe. 

As for De Lima, current Justice Secretary Crispin Remulla has ruled out the possibility that the government would drop the remaining cases against her. There is currently no indication that the administration is investigating the witnesses’ charges of coercion. 

Impunity is far more than the sum of its parts. Its normalization also weakens democracy. Even if Philippine elections might remain somewhat free and fair, institutionalizing impunity causes the erosion of civil liberties and the rule of law. This could lead toward authoritarian rule, in which justice becomes a privilege of a leader’s favored few rather than the right of every citizen. 

The world’s major monitors of political freedom have ceased to consider the Philippines as a full democracy since Duterte was president. Democracy in the Philippines has yet to collapse entirely, but it certainly remains in grave peril.

Sol Iglesias, PhD, is an assistant professor in political science at the University of the Philippines Diliman. —Ed.

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