ICC’s reopened probe into Rodrigo Duterte’s drug war puts Ferdinand Marcos Jnr and Philippines in a tight spot

Surrendering Rodrigo Duterte and others to a full-blown investigation would risk political stability when the president is trying to promote the Philippines globally
However, dodging international law and adding to the culture of impunity would damage the global credibility of both Marcos and his government

Mark T. Townsend

Published: 3:30am, 9 Feb 2023

Why you can trust SCMP

When the history books are written, President Ferdinand “Bongbong” Marcos Jnr’s impending decision on whether to accept the jurisdiction of the International Criminal Court (ICC) will be seen as a defining moment for his political legacy as well as for the Philippines and wider international community.

Last month’s ICC ruling reopening the investigation into the Philippines’ war on drugs during former president Rodrigo Duterte’s time in power is a major test of Marcos’ resolve and the political alliance between the Marcoses and Dutertes.

The Philippines has vowed not to cooperate with the ICC, and Marcos’ chief legal counsel Juan Ponce Enrile has threatened to arrest ICC officials if they set foot in the country. Amid the rhetoric, Canada has urged the Philippines to cooperate with the ICC probe.

The ICC tribunal estimates that 12,000 to 30,000 people were killed on Duterte’s watch between July 1, 2016 and March 16, 2019. It paused its investigation at the request of the Philippines in 2021 after Manila said it wanted to conduct its own probe. In deciding to reopen its inquiry, the ICC said the Philippines had not made sufficient headway in bringing the perpetrators involved in a campaign of extrajudicial killings to justice.

Current proceedings, it said, do not amount to tangible, concrete and progressive investigative steps in a way that would sufficiently mirror the court’s investigation. That looks to be the right decision. National police chief Rodolfo Azurin Jnr is on the record as saying that just 52 cases have been filed against police officers since 2016 relating to alleged irregularities in drug operations.

But for Marcos, throwing the hugely popular Duterte under the ICC bus could stoke political instability at a time when the president is fresh from several high-profile foreign trips, notably to the World Economic Forum where he promoted the Philippines as a safe investment destination. His foreign jaunts could prove to be a political double-edged sword for himself and Duterte. The Marcos family is synonymous with Philippine politics, and the country’s increased visibility adds to the pressure.

03:31

Bones of victims offer clues for doctor and priest investigating true toll of Philippine drug war

Being seen to evade international law or use it selectively could be a serious setback to Marcos’ credibility on the international stage and an inconvenient reminder of the Marcos family’s loose relationship with the law.

Marcos’ own record on human rights is also coming under scrutiny amid claims there has been no let-up in the bloody war on drugs since he became president. He faces mounting pressure to release Leila De Lima, a vocal critic of Duterte who has been imprisoned since 2017.

Adding further evidence of impunity to the Philippines’ reputation for entrenched corruption and stifling bureaucracy could steer investors to other Southeast Asian economies. Among its regional peers, the Philippines receives comparatively low levels of foreign direct investment.

It will be harder for the Philippines to rail against China’s lack of adherence to international law in the South China Sea when it comes to Beijing’s maritime incursions. The Philippines breaking from international norms also places the United States in an awkward position as it expands its military presence in the region.

A man displays his tattoos of Ferdinand Marcos, Ferdinand “Bongbong” Marcos Jnr and Rodrigo Duterte as he passes the Marcos campaign headquarters in Mandaluyong, the Philippines, on May 10, 2022. Photo: AP

Still, Marcos’ ICC dilemma hinges on the political agreement hammered out by the two family dynasties. It is clear that Duterte is no fan of Marcos. In the run-up to last year’s elections, Duterte failed to endorse his daughter’s running mate, only giving tepid support. In an earlier outburst, Duterte described Marcos as “spoiled” and a “weak leader”.

It is unclear whether the current Marcos-Duterte political alliance is based on the understanding Marcos will shield the former president from the ICC probe, but it could still get messy for the Dutertes. The ICC’s probe covers the period between November 1, 2011, when the Philippines became a party to the Rome Statute, the treaty that underpins the court, and March 16, 2019, the day before Duterte withdrew the Philippines from the ICC.

The investigation includes Duterte’s time as president and his tenure as mayor of Davao City. Vice-President Sara Duterte, his daughter, also served a term as mayor in the period under the ICC’s examination. During this time, the infamous Davao death squads targeted petty criminals and drug dealers with similar tactics to those used in Duterte’s signature drug war.

Protesters wearing masks of President Ferdinand Marcos Jnr and former president Rodrigo Duterte carry a placard during a rally to commemorate the 50-year anniversary of the imposition of martial law at the university grounds in Quezon City, suburban Manila, on September 21, 2022. Photo: TNS

But for all the momentum behind the case, it is equally a test for the ICC. Critics cite its low conviction rate and lack of enforcement powers, instead relying on the cooperation of local authorities to arrest and deport defendants. This is something the Philippines is unlikely to countenance for fear of provoking a populist backlash. Time might also be on Duterte’s side as ICC proceedings are achingly slow.

The populism that swept Marcos into office could easily evaporate if he decides to surrender Duterte and others to a full-blown ICC investigation. Yet, in refusing to do so, he risks further marginalising the country from the international community and dimming the economic prospects of millions by implicitly giving presidential support to a culture of impunity.

The president is damned if he does and damned if he doesn’t, despite the political ghost of a president past. Marcos and the Philippines must be on the right side of the law.

Mark Townsend is an award-winning journalist covering Southeast Asia and the Middle East. He has reported from the Philippines for the Financial Times and major broadcasters and publications