In Not Prosecuting Duterte, Marcos Shows Political and Moral Cowardice

Political courage ought not to be considered axiomatic with moral courage. Whatever exertions of political courage Aung San Suu Kyi showed during her decades in noble opposition were forever tainted by her morally revolting defense of genocide. On occasions, though, one finds political and moral courage lacking at the same time. That was the case earlier this year when Philippine President Ferdinand Marcos Jr. rejected an International Criminal Court (ICC) arrest warrant for Rodrigo Duterte, the former president who last month admitted, “I should be the one jailed, not the policemen who obeyed my orders” for his brutal drug war.

The Philippine government estimates that 6,252 people were killed by the police and “unknown assailants” between 2016 and 2022.

There’s been a tendency within my profession to act as court reporters in this affair, focusing on how domestic politics and personal vendettas dictate whether Duterte will ever face justice. At least until a few months ago, his interpreters claimed that Marcos had to handle the ICC’s investigations and appeals for a domestic case with the utmost care because of political necessity. Marcos needed the Dutertes to get inside the Malacañang Palace in 2022. Duterte’s daughter Sara is vice president, and the Duterte family still commands a lot of loyalty in the Senate and the House of Representatives. In other words, it is politically inconvenient, some say, for Marcos to support a prosecution of Rodrigo Duterte.

However, the relationship between the families (and, so, the necessity for toleration) has weakened. Duterte accused Marcos of being a “drug addict” in January, and Sara recently recommended digging up the remains of the president’s father, the former dictator Ferdinand E. Marcos, and throwing them into the sea. (She also publicly confessed to having thoughts of beheading the president himself.) Marcos’ family, many of whom are politicians, responded with their own mudslinging. Sara resigned from Marcos’ cabinet in June, after which a congressional probe was launched into her alleged misuse of special government funds.

Tensions are running high. Analysts expect them to worsen ahead of the midterm elections next year. Sara has presidential ambitions for 2028.

Earlier this year, the House of Representatives began a four-committee investigation into numerous criminal activities, with Duterte’s drug war only one, while the Senate Committee on Accountability of Public Officers and Investigations started its own investigations. As one analyst recently put it, “We might not be seeing this demonstration of congressional independence” had the Marcos-Duterte pact remained on course. Another argued that if Marcos was now to cooperate with the ICC, it “could weaken the Duterte clan and dent both father and daughter’s political ambitions,” while at the same time providing Marcos “with an opportunity to finally end the controversial drug war, a commitment he made during his successful election campaign.”

One might add that it would also paper over Manila’s hypocrisy. On the one hand, Marcos’ administration depends on international law in the country’s defense against Chinese attacks in the South China Sea. Yet, on the other, it is nakedly ignoring international law when it comes to the murder of thousands of compatriots. If Beijing were as Machiavellian as some suggest, it would respond whenever Manila brings up UNCLOS with the retort that the Philippines’ former president broke international law and its current president is frustrating an international investigation.

Granted, if Marcos were to allow Duterte to be brought to The Hague, he could try to proclaim a “win-win.” It would be a little too late on the ethics, though. A morally right act of opportunism ought not to equalize an earlier morally wrong act of opportunism. One cannot only be consequentialist about these things. A good decision is forever degraded by being made only when convenient.

One shouldn’t let Marcos off the hook if he does come to this decision, yet the legal experts I’ve spoken to reckon it wouldn’t be a difficult case for prosecutors if Duterte were compelled to visit The Hague. It’s not as if the former president has been shy about admitting his complicity. At a Senate hearing just a few weeks ago, Duterte admitted to maintaining a “death squad” while mayor of Davao City, a position he held before becoming president and which he now aspires to have again. (The ICC investigation includes part of his time as Davao City mayor.)

“I can make the confession now if you want. I had a death squad of seven, but they were not police, they were gangsters,” he told parliament. Then came the pull quote: “For all of its successes and shortcomings, I, and I alone, take full legal responsibility” for the drug war, he said. “For all the police did pursuant to my orders, I will take responsibility. I should be the one jailed, not the policemen who obeyed my orders. It’s pitiful, they are just doing their jobs.”

Duterte wants the public to think he’s courageously unrepentant partly because he wants to return as Davao City mayor next year; indeed, his Senate testimony was more of a boast than a confession. Yet, Duterte has been cowardly throughout. He withdrew his country from the Rome Statute so that he couldn’t be prosecuted at the ICC. (Why avoid your prosecutors if you believe you are morally right?) He spoke to the Senate rather than the House of Representatives because he has more allies in the upper chamber.

Since Duterte’s confessions, Marcos hasn’t commented on them except to reject a request by the National Union of People’s Lawyers for the House of Representatives committee report to be sent to the ICC. The congressional investigation doesn’t have the power to determine probable cause in any criminal proceeding, so Marcos would have to give his backing to any domestic court that wants to prosecute Duterte. If not, the ICC will have even more reason to argue that Manila has repeatedly proven unwilling to prosecute an offense that Duterte has now admitted to, making Marcos’ rebuffs of the ICC even less justifiable. (One has to wonder whether Duterte decided to confess in order to up the stakes for Marcos and embarrass the president for his inaction.)

If Marcos were to support a domestic trial, Duterte, his family, and followers may well accuse him of “lawfare,” a charge that might stalk his solitary term. Yet, complaints about “victor’s justice” are always absurd (what would “loser’s justice” resemble?) and are intended to inculcate everyone with the same mendacity (Duterte was more than happy to illegally prosecute his opponents). Likewise, Duterte’s claquers will claim that any foreign trial lacks legitimacy. Naturally, one would rather crimes be prosecuted domestically. It is always better to see corrupt or murderous politicians standing before a court in their own capital, judged by their peers. Yet justice has to be done, whether in Manila or The Hague.