icon caret Arrow Down Arrow Left Arrow Right Arrow Up Line Camera icon set icon set Ellipsis icon set Facebook Favorite Globe Hamburger List Mail Map Marker Map Microphone Minus PDF Play Print RSS Search Share Trash Crisiswatch Alerts and Trends Box - 1080/761 Copy Twitter Video Camera  copyview Whatsapp Youtube
Philippines: The International Criminal Court Goes After Duterte’s Drug War
Philippines: The International Criminal Court Goes After Duterte’s Drug War
The Philippines: Three More Years for the Bangsamoro Transition
The Philippines: Three More Years for the Bangsamoro Transition
This file photo taken on 30 January 2017 shows Philippine President Rodrigo Duterte (L) talking to then Philippine National Police (PNP) director general Ronald Dela Rosa (R) during a press conference at the Malacanang palace in Manila. Noel CELIS / POOL / AFP
Q&A / Asia

Philippines: The International Criminal Court Goes After Duterte’s Drug War

Officials in The Hague have announced a formal investigation into alleged state crimes committed as part of President Rodrigo Duterte’s aggressive counter-narcotics campaign in the Philippines. For several reasons, as Crisis Group expert Georgi Engelbrecht explains, the enquiry will face an uphill battle.

What happened?

On 15 September, a pre-trial chamber of the International Criminal Court (ICC) authorised the court’s Office of the Prosecutor to open an official investigation into crimes against humanity allegedly committed in the Philippines between 2011 and 2019 as part of President Rodrigo Duterte’s controversial “war on drugs”, as well as atrocities around Davao, in the southern island of Mindanao, when he was the city’s vice mayor.

Following a three-year “preliminary examination” of the alleged crimes, the prosecutor sought permission in June to proceed with a more formal investigation, arguing that Duterte’s anti-drug campaign “cannot be seen as a legitimate law enforcement operation”, adding that the killings can be viewed “neither as legitimate nor as mere excesses in an otherwise legitimate operation”. Instead, the prosecutor asserted that the campaign, which led to the deaths of thousands, was a “widespread and systematic attack against the civilian population” that “took place pursuant to or in furtherance of a State policy”. After looking into evidence presented on behalf of over 200 victims, the three-judge chamber found that there was “reasonable basis” to launch the probe, taking the view that evidence of various killings throughout the country sufficiently established that “murder” had been committed for purposes of the Rome Statute, the ICC’s constitutive treaty. The judges also authorised the prosecutor to look into similar crimes committed between 2011 and 2016 in and around Davao, where Duterte served as mayor and vice mayor for two decades before becoming president.

Manila has repeatedly said it will not cooperate with any investigation

This development means that the ICC prosecutor can now formally investigate the alleged crimes. If the case progresses to trial, the prosecutor could ask the court to issue summons or arrest warrants in an effort to bring suspects to The Hague to appear before the court. It is not clear, however, whether proceedings will reach that stage. Duterte’s government notified the ICC that it was withdrawing from the Rome Statute in March 2018, a month after Fatou Bensouda, then the prosecutor, launched her preliminary examination of alleged crimes committed during Duterte’s drug war. Manila cited “shameless attacks” on the person of the president. Under the terms of the Rome Statute, the withdrawal officially took effect one year later. Although the court maintains that it continues to enjoy jurisdiction over crimes committed while the Philippines was a state party, Manila has since repeatedly said it will not cooperate with any investigation, arguing the court does not have jurisdiction.

President Duterte’s chief legal counsel Salvador Panelo reacted to the pre-trial chamber’s ruling on 16 September, saying the decision “neither bothers nor troubles the president and his administration”. Duterte’s spokesperson Harry Roque, who is campaigning for a position at the UN International Law Commission, added he was confident that the probe would not result in charges or reach the trial stage as Filipino authorities, particularly the police, would not cooperate with investigators. “They’ll never take me alive”, Duterte himself vowed in early August when asked about the possibility of being brought before the ICC.

What exactly is President Duterte suspected of?

At the core of the allegations the court is investigating lies Duterte’s contentious approach to fighting illegal drugs in the country, which has earned him such nicknames as “Duterte Harry” (a reference to “Dirty Harry”, a no-nonsense detective played by Clint Eastwood in a 1970s and 1980s movie series) and “The Punisher”. During three terms as mayor and one term as vice mayor of Davao City, the future president made his name as a tough anti-crime campaigner who promised to rid the city of drugs – and largely succeeded. His anti-crime policies helped make him highly popular; even today, Davao residents credit him with bringing tranquility and socio-economic development to the town.

Perhaps the most sinister aspect of Duterte’s legacy was the alleged creation of an administration-backed “Davao death squad”, tasked with eliminating crime in the city. Past reports from the UN special rapporteur on extrajudicial, summary or arbitrary execution, Philip Alston, have directly implicated Duterte in the squad’s alleged human rights violations. In recent years, former squad members have also come forward in the media and even testified in front of the Philippine Senate, admitting to extrajudicial killings and other human rights abuses. But although accounts of Duterte’s direct involvement exist, clear and concrete evidence has been elusive. Many observers, however, consider his links to the death squad an open secret. Duterte himself has given contradictory statements, ranging from outright denial to bragging about killing criminal suspects. As the investigation only goes back to the date when the country acceded to the Rome Statute, ie, 2011, it covers only a fraction of Duterte’s time as Davao’s strongman. Some reports of targeted killings date back to the 1990s.

Duterte ran for president promising to dump so many dead bodies in Manila Bay that 'fish there would grow fat'

In 2016, Duterte ran for president promising to bring law and order to the entire country. Among his most controversial statements were his promises to “kill every drug dealer and user” and to dump so many dead bodies in Manila Bay that “fish there would grow fat”. Beginning in the very first months of his presidency, and over the following two years, his government launched a series of police operations targeting the drug trade. Given a free hand, law enforcement agencies went all out, conducting daily raids in Manila’s slums and throughout the country, killing thousands and packing the country’s jails with suspects, many of whom were from the poorest segments of the population. Manila acknowledges that the operations led to many casualties but posits that, in all cases, police officers were acting in self-defence. Numerous testimonies suggest otherwise, with witnesses alleging that many victims were shot in cold blood. Reliable casualty figures are hard to come by. While government data points to 6,117 drug dealers killed so far in Duterte’s term, independent estimates of the number of deaths range from 12,000 to 30,000, including many minors.

In reaching its decision, the ICC’s pre-trial chamber said it relied on information about direct links between the Davao killings and the subsequent war on drugs, particularly the “systematic involvement of security forces”. It added that “similarities in the modus operandi are also discernible”, citing information that some individuals involved in the Davao death squads were later transferred to Manila to participate in the war on drugs. Duterte’s own statements apparently also contributed to the ICC judges’ decision to greenlight the investigation, as they noted a “coherent progression” in his public threats first to kill criminals in Davao and later to get rid of drug dealers throughout the country. In addition to Duterte himself, the chamber’s decision mentions the former Philippine National Police chief, Ronald “Bato” Dela Rosa, now a senator and a close confidant of the president. In his own words, Duterte promoted Dela Rosa to head the police to “look for the enemies” and “destroy the [drug] apparatus”.

How can the ICC assert jurisdiction considering the Philippines doesn’t recognise its authority?

Under the Rome Statute, states have the primary duty to investigate and prosecute the grave international crimes that fall within the court’s jurisdiction, which include crimes against humanity. The international court operates under the so-called complementarity principle, resorting to investigations only when a country proves unwilling or unable to genuinely investigate and prosecute such crimes. In the Philippine case, the ICC Office of the Prosecutor justified its intervention by citing the government’s failure “to take meaningful steps to investigate or prosecute the killings”. Indeed, many relatives of drug war victims have allegedly faced insurmountable difficulties, from police obstruction to the fear of retribution from government agencies, when seeking justice. Only a handful of high-profile cases have led to the conviction of police officers.

While, as noted above, Manila’s withdrawal from the Rome Statute in 2019 does not end the court’s legal jurisdiction over crimes allegedly committed when the Philippines was an ICC party, it does complicate the court’s capacity to undertake a meaningful investigation, let alone conduct a trial. For all of the ICC’s formal power, the Office of the Prosecutor relies on states’ cooperation to conduct its investigations and to ensure that potential suspects are delivered to The Hague in cases where the court issues summons or arrest warrants. Duterte’s government has made it amply clear it will not cooperate. On 16 September, presidential legal counsel Salvador Panelo repeated that the government would not allow ICC investigators to enter the country. On previous occasions, he and other members of the administration have emphasised that the international community has “no right to intervene in the Philippines’ affairs”.

But Duterte is not fully in the clear. In a major setback to the president, the Philippines Supreme Court has refuted the government’s argument regarding the ICC’s alleged lack of jurisdiction. In July, the highest judicial body in the country unanimously ruled that as a former state party to the Rome Statute, the Philippines must recognise the ICC’s jurisdiction for the period under which the Statute was in effect, and therefore cooperate with the court even after the withdrawal for any investigation into that period. While it dismissed petitions that aimed to nullify the withdrawal, the court was adamant that the government “shall not be discharged from any criminal proceedings”. Duterte’s spokesperson dismissed the arguments and claimed that the court’s decision would not be “legally binding”. He also argued that the Rome Statute never took effect in the country, back in 2011, because it was never published in the official gazette.

For now, the Philippines case appears to be yet another example of the limits of the international justice system in countries whose governments refuse to collaborate with the ICC. The court may count on victims’ groups, civil society organisations and legal experts within the country to support the investigation, including through digital means or meetings abroad. Former prosecutor Bensouda also said that her office has been “taking a number of measures to collect and preserve” evidence, anticipating the investigation and “aware of complex operational challenges” such as access that might arise. But the prospect that Duterte is brought to and tried in The Hague seems highly unlikely without the cooperation of local law enforcement agencies.

Duterte remains by far the most popular politician in the country

What happens now?

Given both the obstacles to a smooth investigation mentioned above and the slow pace of the international justice system, major developments in the legal proceedings are unlikely anytime soon. But the ICC investigation comes at a critical political juncture: Duterte’s term ends in June 2022, and the constitution bars him from running for a second consecutive term. With his government presently taking flak for its handling of the COVID-19 pandemic, the opposition may well use the criminal investigation to further discredit him.

Some observers contend that the recent announcement that Duterte would run for vice president in 2022 may be directly linked to the ICC’s investigation. While his party remaining in power would ensure the future government’s continued non-cooperation with the court, as vice president, he would also likely enjoy immunity from national prosecution as well (though Filipino legal experts are divided on that issue). The outspoken president has himself acknowledged that evading potential prosecution in national courts after he steps down was part of his motivation for running. Winning office would not necessarily protect him from the ICC: even as vice president, should a warrant be issued against him, Duterte would risk arrest if he travels to any country party to the Rome Statue that would be willing to apprehend him at the ICC’s request. But in order for the court to issue a warrant, the prosecutor will need to develop the case, and that will be difficult to do unless Manila shifts course and offers its cooperation.

The ICC investigation thus faces an uphill struggle. Indeed, even if the president’s camp were to lose the election, the successor government’s legal cooperation with the ICC is not a foregone conclusion. The biggest obstacle to Duterte facing legal proceedings may lie in his popularity with the Filipino public: although he has definitely faced rising criticism over the last several months, largely on account of the government’s tackling of the pandemic, he remains by far the most popular politician in the country. With the national political scene and many institutions stacked with his supporters, any attempt to drag him to court would likely face considerable opposition. In addition, investigations into police conduct would likely stir up a hornet’s nest, with consequences lasting far beyond Duterte’s term, which officials may be averse to doing. While they have clearly reached an unprecedented scale under Duterte’s watch, extrajudicial killings are not a new phenomenon in the Philippines, where many provinces have a long history of police vigilantism.

People of Bangsamoro Autonomous Region stage a peace convoy event to support the campaign to extend the term of the transition government in the region to 2025, Philippines on 21 March 2021. Benyamen Cabuntalan/Anadolu Agency via AFP
Q&A / Asia

The Philippines: Three More Years for the Bangsamoro Transition

President Rodrigo Duterte has signed a bill doubling the length of the political transition in the new autonomous entity in the southern Philippines. In this Q&A, Crisis Group expert Georgi Engelbrecht explains why the extension is welcome news.

What happened and why is it important?

On 28 October, Philippine President Rodrigo Duterte signed into law a bill postponing the first parliamentary elections in the Bangsamoro Autonomous Region in Muslim Mindanao (BARMM) from 2022 to 2025, thereby extending the political transition in the region for another three years.

The law amends Philippine Republic Act No. 11054, better known as the Bangsamoro Organic Law, that had formally created the new autonomous entity in the southern Philippines in early 2019, providing for a three-year interim period before holding the BARMM’s first parliamentary elections that would formally mark the end of the transition. Postponing the vote is tantamount to extending the term of the region’s caretaker government, the Bangsamoro Transition Authority (BTA, which combines both executive and legislative functions), until 2025, as the Organic Law stipulates that parliamentary polls in the region must be synchronised with national elections that take place every three years. The bill underwent intense deliberation and scrutiny in both the House of Representatives and the Senate, the two chambers of the Philippine Congress, before lawmakers passed it and submitted it to the president.

The extension is the latest chapter in a bumpy yet overall promising peace process that aims to resolve the decades-long conflict in the country’s southern island of Mindanao. Pitching the Philippine government against various Moro secessionist groups, the war has killed at least 120,000 people. In 2014, twenty years of on-and-off negotiations culminated in a peace deal between Manila and the Moro Islamic Liberation Front (MILF), Mindanao’s largest insurgent group. The ex-rebels now run the transitional government, tasked with creating the new region’s institutions and drafting key legislation – the “priority codes”, as they are known – to govern the autonomous Bangsamoro. When the peace agreement was still being negotiated, the MILF had first proposed a six-year transition, arguing that a shorter timeframe would be insufficient to bring genuine change to the region after decades of war. The group later agreed to a compromise on three years. Over the last year, however, the MILF actively lobbied for extending the transition period, largely on account of the COVID-19 pandemic’s impact in implementing the original roadmap.

While there were no immediate reactions to the presidential sign-off, the bill’s passage in Parliament clearly brought a sense of relief to the former rebels of the MILF and other BTA representatives, including members of the Moro National Liberation Front, the very first Moro rebel movement from which the MILF split in 1977. Many Bangsamoro communities, particularly those supporting the MILF, had reacted with similar enthusiasm to the prospects for extension; others were more lukewarm, expressing frustration with the implementation of the peace process. International actors – for example, UN officials who were sympathetic but not explicitly in favour of the extension – also released messages of support.

What is the rationale for extending the transition period?

The MILF’s campaign for an extension ... gained traction among national policymakers.

The decision is largely linked to the impact COVID-19 has had on the regional government’s capacity to implement the roadmap leading up to the elections. MILF leaders started advocating for a longer transition period toward the end of 2020, after a local peace advocacy group, the Mindanao Peoples Caucus, recommended postponing the elections in a “mid-term assessment” of the political transition. The non-governmental organisation cited the BTA’s inevitable birthing pains as one reason to give it more time, but also drew public attention to the challenges the pandemic had created. Indeed, the former rebels running the interim government had to put aside their institution-building in order to spearhead relief operations in the region while dealing with periodic lockdowns and steering a less operational Bangsamoro Parliament. The MILF’s campaign for an extension eventually gained traction among national policymakers.

Another part of the rationale for extending the transition was the absence of an electoral framework to guide parliamentary polls in the new autonomous region. The responsibility for designing and passing an “electoral code” to put in place the “parliamentary style of government” that the 2014 peace deal foresaw for the Bangsamoro lies with the interim government. At present, however, only a draft of the code exists – a major hurdle considering that this document is meant not only to lay out the election procedure, but also to delineate parliamentary constituencies. The delay is at least partly due to the pandemic, as the BTA had to reduce the number of parliamentary sessions to discuss the legislation, and had even fewer opportunities to consult communities and local officials in the region due to travel restrictions. Some observers, however, opine that as the party leading the BTA and tasked with the code’s drafting, the MILF might have had an inherent interest in dragging out the process, since extending the transition period means they now have another three years before facing voters for the first time. While that is difficult to corroborate, the fact remains that electing 80 parliamentarians without clear guidelines would have proven challenging.

Why has the proposal been controversial?

The decision on whether or not to extend the transition has generated intense debate both in Mindanao and in Manila throughout 2021. Some critics argued that the MILF’s bid to postpone elections was driven by self-interest and would undermine democratic development in the Bangsamoro, highlighting that the move would result in another three years without “a popular mandate” since existing BTA members were appointed (by the president), not elected. Lawmakers who voted against the extension bill in Congress picked up this line of reasoning, even suggesting that the region hold a plebiscite on a potential extension.

More generally, the controversy stemmed from the Bangsamoro’s complex ethnic and political landscape. The region is a fragmented entity comprising non-contiguous provinces, a variety of ethno-linguistic groups, and a plethora of clans and guerrilla outfits. Kinship ties and Islam often bind diverse communities. But they also bring about loyalties to different movements, of which the MILF is the largest but hardly the only one. The ex-rebels are influential in central Mindanao among the Maguindanao and Maranao communities, but less so in the island provinces of the Sulu archipelago, a historical bastion of Moro nationalism populated by the Tausug ethnic group. Other areas are dominated by political clans. Finding consensus on any political issue in such a jumbled environment is by definition an arduous task; doing so on one as important as the final stretch of the peace process, even more so. Militant groups still active in the region have also tried to discredit the former rebels by attacking their religious credentials.

In this highly factious polity, the MILF campaigned hard to try to build a consensus, win public support and lobby for the proposal in Manila. Many non-MILF members of the BTA, including Moro National Liberation Front representatives, were already convinced of the need to extend the transition period, which gave the MILF campaign an added layer of legitimacy. In addition, among powerful Bangsamoro clans, the governors of the provinces of Tawi-Tawi (led by the Sali clan) and Lanao del Sur (led by the Alonto-Adiongs) were relatively consistent in supporting the bid, while the MILF’s outreach managed to sway other clan leaders. Perhaps even more decisive was the support of another veteran Moro lawmaker, one of Maguindanao’s congressional representatives, Esmael “Toto” Mangudadatu. The former provincial governor, who remains highly influential in Maguindanao province, sponsored the extension bill in the House of Representatives, promoting and defending it during interpellations until it passed.

The former guerrillas’ campaigning faced opposition from other influential local politicians across the region, however. One of the extension’s fiercest opponents was Abdusakur Tan, governor of Sulu province and a long-time critic of the MILF, who had campaigned against creating the BARMM in the past and strongly opposed resetting the 2022 parliamentary elections. Speaking on behalf of the Tausug ethno-linguistic group, Tan repeatedly criticised the interim government and its track record on the grounds that BARMM was neither inclusive nor “felt” by his people. Another sceptic was Cynthia Guiani-Sayadi, the outspoken mayor of Cotabato City, BARMM’s seat of government, who argued that seeking extension was the MILF’s poor excuse for its weak performance at the government’s helm.

The Philippine government ... has ... been quite supportive of the MILF’s plea for a longer transition period.

The Philippine government, including the security establishment, has on the other hand been quite supportive of the MILF’s plea for a longer transition period. Defence Secretary Delfin Lorenzana, for example, personally endorsed the proposal. President Duterte has been more ambivalent. While he backed the call for an extension at first, he appeared to have second thoughts after influential Moro politicians visited Manila several times in early 2021, articulating their concerns about the BARMM’s “governance issues”. The president’s hesitation was also likely the result of conflicting legal opinions, with his advisers providing contradictory views regarding the need for a plebiscite to postpone elections. It is also plausible that Duterte was hedging his bets in the run-up to the 2022 presidential election: as the president’s party faces an uncertain political future with Duterte barred from running for a second term, ties to local Bangsamoro powerbrokers are vital in securing votes. Whatever the case, Duterte’s spokesperson emphasised that the president would remain “neutral” and leave the decision in the hands of Congress. The president also resisted a last-minute attempt by Moro elites opposing the extension to convince him to veto the bill.

What are the implications for the Bangsamoro peace process?

Resetting the elections and thereby doubling the transition period’s length should bring welcome breathing space to the new autonomous region after months of political uncertainty. Even if the decision is not a perfect solution and could have come earlier, it gives much needed time to the BTA to complete its roadmap, avoiding a hasty election in a fractured political landscape. The BARMM’s Chief Minister and MILF Chairperson Ahod “Al Haj Murad” Balawag Ebrahim promised that all Bangsamoro people “stand to benefit” from the extension, stressing the MILF’s aim to be inclusive.

Three more years should allow the MILF-led interim government to further strengthen institutions, pass key legislations that are still in the pipeline and develop a capable bureaucracy with better-trained civil servants, thereby ensuring the BARMM does not become another “failed experiment” like its predecessor, the Autonomous Region in Muslim Mindanao, which was created in 1989 but proved unable to bring lasting peace and development to the region. Delaying parliamentary elections should also enable a more mature political scene in the new autonomous region. Indeed, all the BARMM’s nascent political parties, including the MILF’s United Bangsamoro Justice Party, will benefit from extra time to boost their capacities and better articulate their political vision.

The extended transition period ... gives the central government and the MILF an opportunity to address some of the most urgent challenges in the peace process.

The extended transition period also gives the central government and the MILF an opportunity to address some of the most urgent challenges in the peace process, including disarming former rebels and ensuring the socio-economic development of war-torn areas in Mindanao. Referred to as “normalisation”, this aspect of the peace process is not directly linked to the political transition, but the vision of the 2014 peace agreement foresaw both tracks running in parallel. The holistic approach has been meandering as of late, however, with many projects falling behind schedule, and the pandemic diverting funds from the central government toward combating COVID-19. Manila and the ex-rebels also need to resolve misunderstandings about the compensation package for former fighters and technical details on the decommissioning process. Recent efforts of the Office of the Presidential Adviser on the Peace Process to secure more funding are a welcome step in this regard, but given the high expectations for a peace dividend among the Bangsamoro population, both Manila and the MILF need to redouble their efforts. More time should be a powerful impulse to invigorate the process. The extension should not result in complacency, however, as slow implementation of both tracks might again nurture disillusionment and breed discontent in the Bangsamoro population.

Finally, a longer transition period could help the autonomous region in decisively asserting itself as a source of stability by curbing ongoing violence in pockets of the Bangsamoro. Communal conflicts over land and clan feuds, known as rido, have plagued the region for decades. Bangsamoro ministries are trying to tackle the challenge, but more time could allow them to develop more systematic approaches in addressing clan violence. Similarly, the interim government needs to confront the challenge of armed groups still operating outside the peace process. Jihadists and other militants that favour a violent solution to the region’s ills are on the retreat, but could quickly tap frustration among civilians and disgruntled MILF fighters alike should the BARMM not live up to expectations.

What happens next?

In the immediate term, perhaps nothing too significant. COVID-19 permitting, the Bangsamoro Parliament will continue its regular sessions while the MILF-led interim administration will carry on with day-to-day governance, focusing on pandemic relief (with infections once again surging) and moving ahead with deliberations on the priority codes.

More broadly, the extension raises the status and political capital of the MILF. But the former rebels still have the arduous task of building trust and legitimacy, especially among those who opposed the extension. While the parliamentary elections stand postponed, local elections – which are held countrywide – for gubernatorial and mayoral posts will go ahead as planned in 2022. Some of the region’s political clans have already reached out to the MILF for support, with the MILF backing their candidacies. But whether the MILF can fully bridge the gap created by the extension debate remains to be seen. Some consider its endorsement of candidates to be premature or even counterproductive.

The tense political climate resulting from the heated extension debate has also raised concerns about the peacefulness of the 2022 polls, following a number of violent incidents in the last weeks. Aware of the rifts between the MILF and some of the Bangsamoro clans, Duterte hosted a meeting of the two sides a few days before he enacted the extension bill, proposing a peace covenant to be signed between the parties at a later stage. This pact, if it materialises, would oblige all parties to abstain from violence in the 2022 Bangsamoro local elections.

With the current BTA members ending their term in 2022, a crucial development to watch for is whether Duterte will take the initiative to reappoint members of the Bangsamoro Parliament. Prior versions of the extension bill left the task up to Duterte’s successor. But according to available information, the final text stipulates that the current president “may appoint the eighty new interim members of the BTA who shall serve up to 30 June 2025 or until their successors shall have been elected and qualified”. Whether the Philippines’ first-ever president to hail from Mindanao will use this prerogative remains unclear, but it provides him with an opportunity to influence politics in his home region even beyond his term.