More than three weeks since the House of Representatives (DPR) ratified the amendment to the Indonesian National Armed Forces Law (Undang-undang Tentara Nasional Indonesia: UU TNI), the law’s official text has yet to be released to the general public. Given the formal procedure of legislation in the country, President Prabowo Subianto has thirty days to either sign or not sign the law. Regardless of Prabowo’s decision, the revised TNI Law will remain in effect due to the fact that the law-making process in Indonesia is basically a joint-venture between the executive and legislative branches.   As reported widely by domestic and international media outlets, the promulgation of the revised TNI Law in March 2025 has sparked significant protests throughout the archipelago. These protests have been led by students and civil society groups across ideologies and political spectrums. It is reported that mass rallies in various sizes took place in approximately forty-six cities, extending from Banda Aceh in Sumatra to Manokwari in Papua.[1] The protestors called for the repeal of the law, demanding a thorough and transparent public deliberation. The parliament’s working committee, which was initially charged with deliberating the revised TNI Law with the government, was caught off guard holding a limited meeting behind closed doors.   What are the underlying issues that have triggered the strong disapproval of students and civil society organizations regarding the ratification of the revised TNI Law?   Critics argued that the amendment undermines civilian supremacy and sustains military intervention in social and political affairs. The Coalition of Civil Society for Security Sector Reform, consisting of non-governmental organization activists, academics, and researchers working on human rights, democracy, and security issues, expressed concerns that the amendment will deteriorate military professionalism. The coalition argued the armed forces should focus on strengthening the nation’s defense capability against external threats, protecting national territory and sovereignty, instead of meddling in civilian affairs. Thus, the priority must be given to the advancement of military modernization in order to improve the TNI capability. In the following assessment, the validity of this criticism will be examined.   Firewall Between the Military and the Government Get Eroded   After the fall of Suharto’s authoritarian regime in May 1998, clear demarcation was established to disassociate the military from the civilian government. Active military officers were removed from the position of head of regional admіnistration; if they wished to continue, they had to resign from military service. Additionally, the military was banned from running any kind of businesses. During Suharto’s rule, active officers were assigned to occupy a military faction within the legislature structure, exercising the same rights and responsibilities as representatives from political parties and social organizations. This peculiar provision was eventually revoked, and the military retreated from national and regional legislatures in 2004. On top of this series of reforms, the highlight was the separation of military and police institutions, underscoring the former’s primary responsibility for external defense and the latter for domestic security.   The recent passage of the revised TNI law has introduced significant changes. Firstly, the amendment allowed the expansion of TNI’s military operations other than war (MOOTW or operasi militer selain perang/OMSP), adding two extra missions namely cyber defense missions and the protection of Indonesian citizens and national interests abroad. Prior to this expansion, the armed forces were already mandated to undertake fourteen non-external defense activities, including counterinsurgency, counterterrorism, international peacekeeping missions, and humanitarian assistance and disaster relief. The government asserts that the inclusion of the cyber domain is imperative in the light of the continued transformation of security threats in the contemporary global landscape. The Indonesian military has initiated the development of its cyber defense capability, establishing a specialized cyber unit tasked with supporting command and control systеms and intelligence collection. Meanwhile, the second newly added mission aims to provide a legal justification for the TNI to evacuate and assist Indonesian citizens abroad in times of crisis. This includes incidents such as the abduction or hostage-taking situations of Indonesian citizens by hostile entities, as well as armed robbery against Indonesian-flagged vessels in international waters.   The absence of an oversight mechanism to oversee the government’s cyber and surveillance operations raises concern, as it potentially facilitates abuse of power and violations of human rights by state apparatus. It is difficult to expect that the House of Representatives could fulfill its mandated oversight responsibilities. The majority of DPR members came from political parties aligned with the ruling government, effectively curtailing the capacity for authentic checks and balances between the legislative and executive branches. Critics also pointed out the risk of militarization within cyberspace that could harm the public’s rights to access information and freedom of expression (SAFEnet 2025).   Secondly, the revised law stipulated that active military officers could be appointed to the five non-defense ministries and state agencies. These include the national border management agency (BNPP), the national disaster mitigation agency (BNPB), the national counterterrorism agency (BNPT), the maritime security agency (Bakamla), and the attorney general office (Kejaksaan Agung).   In its original 2004 version, the TNI Law stipulated that the appointment of active uniformed officers was permissible in ten security-related institutions, i.e. (1) coordinating ministry of political and legal affairs; (2) ministry of defense; (3) national resilience council (dewan ketahanan nasional); (4) presidential military secretariat; (5) state intelligence agency; (6) state cryptography agency; (7) national resilience agency (lembaga ketahanan nasional); (8) national search and rescue agency; (9) national anti-narcotics agency, and; (10) supreme court.   The problem is that, throughout the years, active military secondments have already exceeded the limits established for civilian ministries and state agencies, thereby extending the scope of TNI roles without the requisite legal justification. Recent examples include the appointment of Lieutenant Colonel Teddy Indra Wijaya as cabinet secretary, Major General Ahmad Rizal Ramdhani as head of the food resilience task force at the Ministry of Agriculture, Major General Maryono as inspectorate general at the Ministry of Transportation, Major General Irham Waroihan as inspectorate general at the Ministry of Agriculture, and First Admiral Ian Heriyawan at the Hajj Organizing Agency.   The amendment also extended the retirement age for military personnel (Dongoran 2025). Specifically, the retirement age for non-commissioned officers and enlisted personnel was increased from 53 to 55. For mid-ranking officers, up to and including the rank of colonel, the maximum permissible age for continued service is increased to 58. The retirement age for generals is determined by their star rank: 60 for one-star, 61 for two-star, and 62 for three-star, respectively. The retirement age for a four-star general, i.e. TNI commander and the services’ chiefs of staff (army, navy, air force), is 63, and it can be extended a maximum of two times, subject to the president’s approval. The TNI Commander General Agus Subiyanto stated that the extension of retirement age provided a broader opportunity for military personnel to enjoy career advancement faster.   It is noteworthy that in his recent interviews with seven journalists—six of whom are editors-in-chief of print, broadcast, and internet media—at his residency in Hambalang, Bogor, West Java, President Prabowo Subianto admitted that the extension of high-ranking officers’ retirement age has been the main objective of the TNI Law revision. He expressed dissatisfaction over the swift turnover of three-star and four-star general positions. This revelation is particularly noteworthy as it suggests a strategic intent on the president’s interests to consolidate his authority and subjective control over the armed forces.   In contrast with the lawmakers’ optimism, critics expressed concern that extending the retirement age could disrupt the cycle of personnel regeneration, causing the military’s hierarchical pyramid structure to become imbalanced (Dongoran 2025). In recent years, TNI faced problems with high-ranking officers who are not currently assigned to active duties. In response, the headquarters has been directing these officers to strategic posts outside the military organization. The extension of retirement age has the potential to exacerbate this situation.   While not as prominent in the public consciousness as the aforementioned three issues, the amendment changed the nature of the relationship between TNI and the Ministry of Defense. Previously, the military’s authority in formulating defense policy and strategy was arranged to be “under the coordination” (dalam koordinasi) of the Ministry of Defense. The revised law, however, established that the TNI’s authority to define national defense policy and strategy is to be exercised “in coordination” (di dalam koordinasi) with the Ministry of Defense. This means that the position of military headquarters becomes relatively equal to that of the Ministry of Defense. Consequently, the enhanced autonomy of the TNI in strategic affairs is likely to diminish civilian control over military matters via the ministry.   Ill Winds of Authoritarian Turn   The ratification of the revised TNI Law is indeed a worrisome indication of democratic decline in Indonesia. It reinforced the expansion of the military’s involvement in non-defense affairs. While the original TNI Law requires an update, considering the evolving security threat landscape on the national and global stages, the lawmakers overlooked the crucial principle of civilian supremacy and the maintenance of military professionalism.   Civil society rightfully urged both the government and parliament to evaluate the ongoing conduct of the MOOTW and active military personnel appointment to non-defense agencies, prior to further expanding the military’s role.   Only five months after President Prabowo Subianto took office, the government has deployed the military to various developmental sectors unrelated to external defense functions. TNI territorial structures across the archipelago has been directly involved in farming, forestry, and natural resources sectors, to name a few. In October 2024, five new infantry battalions were established to accelerate the development of “food estate” (lumbung pangan) in Papua, staffed with active personnel learning agricultural science at the Indonesia University of Defense.   The military’s involvement in the distribution of “free nutritious meals” (makan bergizi gratis: MBG) to school children has been identified as a pivotal element of Prabowo’s 2024 election campaign. The TNI headquarter activated 351 army district commands (kodim), 41 air force bases (lanud), and 14 main naval bases (lantamal) simultaneously to support the MBG program nationwide (Aditya and Prabowo 2025). Furthermore, the government assigned Lieutenant General Novy Helmy Prasetya, an active three-star general, to lead a state-owned enterprise specializing in food logistics, distribution, and price stabilization (Bulog). This action is a clear transgression against the TNI Law.   This series of events indicates a deliberate and systеmatic expansion of the military’s role within the Indonesian government. The foundation of military reform, laid in the early years of democratization, have ultimately proved unsuccessful.   It is also imperative to acknowledge the opaque nature of the revised TNI law-making process. In addition to the previously referenced closed-door meeting between government officials and the parliament’s working committee, both the government and the DPR also failed to provide the general public with access to the revised TNI draft. This lack of transparency and accountability contributed to the emergence of widespread protests. Of particular concern is Prabowo Subianto’s response to the protests, wherein he accused the demonstrators of being lackeys of foreign powers without providing any evidence.[2] The employment of stigmatization and othering has been a potent tactic in Prabowo’s playbook, used to discredit his critics.   Considering the events surrounding the revision of the TNI Law, it is evident that there is a serious symptom of authoritarian turn in Indonesia. ■   References   Aditya, Nicholas Ryan, and Dani Prabowo. 2025. “TNI Kerahkan 351 Kodim, 14 Lantamal, dan 41 Lanud untuk Dukung Program Makan Bergizi Gratis” (TNI Deployed 351 Army District Command, 14 Main Naval Bases, and 41 Air Force Bases to Support the Program of Free Nutritious Meals). Kompas.com. January 7. https://nasional.kompas.com/read/2025/01/07/19170211/tni-kerahkan-351-kodim-14-lantamal-dan-41-lanud-untuk-dukung-program-makan (Accessed April 14, 2025)   Dongoran, Hussein Abri. 2025. “Extending Soldier’s Retirement Age.” Tempo English. March 24. https://magz.tempo.co/read/cover-story/42904/soldiers-retirement-age (Accessed April 14, 2025)   SAFEnet. 2025. “Tolak RUU TNI, Tolak Militerisasi Ruang Siber” (Reject the Revision of TNI Law, Reject the Militarisation of Cyberspace). March 17. https://safenet.or.id/id/2025/03/tolak-ruu-tni-tolak-militerisasi-ruang-siber/ (Accessed April 14, 2025)     [1] See the X/Twitter account of “Ekspedisi Indonesia Baru.” https://x.com/idbaruid (Accessed April 14, 2025)   [2] See the video of President Prabowo Subianto’s dialogue with the editors-in-chief of six Indonesian media outlets, available at https://www.youtube.com/watch?v=-WLpXmnBmxo&t=7307s (Accessed April 14, 2025)     ■ Muhamad Haripin is Political Scientist at the National Research and Innovation Agency (BRIN), Indonesia. He is author of Civil-Military Relations in Indonesia: The Politics of Military Operations Other Than War (Routledge, 2020) and coauthor of The Army and Ideology in Indonesia: From Dwifungsi to Bela Negara (Routledge, 2021). He earned his Ph.D. from the Graduate School of International Relations, Ritsumeikan University, Japan.     ■ Edited by Hansu Park, Research Associate     For inquiries: 02 2277 1683 (ext. 204) | [email protected]  

On April 4, 2025, the Constitutional Court of South Korea unanimously upheld the National Assembly’s impeachment motion against President Yoon Suk Yeol (Yoon), resulting in his removal from office. Yoon thus became the second president in the nation’s constitutional history to be impeached and dismissed. His unprecedented attempt to declare martial law—an act widely interpreted as an insurrection—plunged the country into a grave constitutional crisis. In the face of this crisis, the nation demonstrated a remarkable degree of constitutional resilience, reminiscent of its response during the 2016 impeachment of President Park Geun-hye (Park). Once again, democratic institutions and constitutional mechanisms functioned as adequate safeguards against authoritarian overreach.   The two presidential impeachments that have taken place in South Korea since democratization offer powerful insight into the complex interplay between constitutionalism and democracy within a presidential systеm. These landmark cases illuminate how the principles of democratic legitimacy—grounded in popular sovereignty—and constitutional constraint—rooted in the rule of law—can function as mutually reinforcing foundations of governance, while simultaneously generating moments of institutional tension.   Three Presidential Impeachments After Democratization   Although the impeachment mechanism has long been an essential constitutional safeguard in presidential systеms, it has not been an actively utilized instrument for much of its global history. Since the 1990s, however, impeachment attempts have become increasingly frequent across the regions, reflecting heightened demands for executive accountability. Nevertheless, the number of cases in which these attempts culminate in the actual removal of a president remains relatively limited (Ginsburg, Huq, Landau 2021). In the case of South Korea, three impeachment proceedings against presidents have taken place since the establishment of its government, all of which occurred after the country’s democratization. Among these, the Constitutional Court dismissed the impeachment motion against President Roh Moo-hyun (Roh) in 2004. In contrast, the impeachments of Presidents Park (2016) and Yoon (2025) were upheld, resulting in their removal from office. The fact that two out of three impeachment attempts resulted in the removal of a president underscores the unusual nature of the South Korean experience in the context of presidential democracies.   When comparing the severity of the legal violations cited in presidential impeachment proceedings, President Roh’s case in 2004 primarily centered on his public expression of support for the newly formed ruling party ahead of the 17th National Assembly elections in April 2004. Although some interpreted this as a breach of the obligation for political neutrality, it was ultimately deemed a relatively minor offense, more aligned with political speech than a substantive legal transgression. In contrast, President Park’s impeachment was grounded in far more serious allegations, including the delegation of state authority to an unelected confidante and bribery charges connected to the succession plans of the Samsung Group.[1] By comparison, recent calls for the impeachment of President Yoon are centered on alleged violations tantamount to insurrection, representing a far more explicit and grave breach of constitutional order than those seen in the previous two cases.   At the time the impeachment motion passed the National Assembly, the partisan composition of the legislature exhibited stark differences that significantly influenced the outcome. After taking office, President Roh faced a divided ruling party, reducing him to the status of a minority president. He was subsequently impeached by an opposition coalition that included members of his former ruling party. In the case of President Park, the eruption of the Park Geun-hye–Choi Soon-sil scandal and the revelation of state affairs manipulation led to internal divisions within the ruling party, splitting pro-Park and anti-Park factions over the impeachment motion. In stark contrast, the attempted declaration of martial law under President Yoon did not give rise to the kind of internal division witnessed during President Park’s impeachment. The initial attempt to pass the impeachment motion failed due to a lack of quorum. It was only after facing intense public criticism that a small number of lawmakers defected, allowing the passage of the impeachment motion by a narrow margin.   The Constitutional Court’s rulings also differed across the three cases. In the case of President Roh, the impeachment was dismissed as the court failed to secure the necessary votes to uphold it. At the time, due to the lack of a legal requirement, dissenting opinions were not made public. In contrast, the impeachments of Presidents Park and Yoon were upheld unanimously, with all eight justices in favor of removal from office. Notably, in the case of President Yoon, the Constitutional Court unanimously upheld all five grounds for impeachment, with all eight justices concurring on each charge.   Among the three impeachment cases, President Yoon’s impeachment took the longest to be delivered. The Constitutional Court reached its decision on President Yoon’s impeachment after 111 days, whereas it required 63 days for the case of President Roh and 91 days for President Park.   Mutual Reinforcement Between Democracy and Constitutionalism   The impeachment of President Roh represents a salient case in which a procedurally legitimate initiative—undertaken amid acute partisan polarization—diverged from the prevailing will of the citizenry.[2] Within this context, the Constitutional Court assumed an assertive role as a constitutional guardian, actively mediating between legal formalism and democratic legitimacy to safeguard institutional stability.[3]   The impeachment of President Park was influenced by the unprecedented protest of approximately 17 million citizens in several months-long candlelight demonstrations, culminating in the removal and prosecution of a sitting president on charges of corruption. During this period, the public sphere became a contested arena, encompassing pro-impeachment demonstrators and the so-called “Taegeukgi (national flag of South Korea) rallies” opposing impeachment. The Constitutional Court’s unanimous decision to uphold the impeachment marked a pivotal moment in which a severe democratic crisis was addressed through constitutional mechanisms, thereby reaffirming the rule of law as the cornerstone of democratic legitimacy and institutional resilience.   The impeachment of President Yoon unfolded in three major phases. Phase 1 is the Declaration of Martial Law and Civil Resistance (December 3–4, 2024). On December 3, President Yoon abruptly declared martial law, apparently in an attempt to suppress parliamentary action through the deployment of military force. However, the attempt to blockade the National Assembly failed due to the swift and widespread citizen resistance and lukewarm actions of deployed soldiers. On December 4, the National Assembly swiftly passed a resolution demanding the immediate revocation of martial law. Facing mounting pressure and a legitimacy crisis, President Yoon rescinded the martial law declaration approximately six hours later.   Phase 2 focuses on the Impeachment Proceedings and Constitutional Court Review (December 7, 2024 – January 13, 2025). The first impeachment motion, proposed on December 7, failed to pass due to insufficient votes. However, the National Assembly passed a second motion on December 14 and formally submitted it to the Constitutional Court. Meanwhile, the Corruption Investigation Office for High-ranking Officials (CIO) issued an arrest warrant against President Yoon on insurrection charges. With the controversy of CIO’s authority to investigate insurrection charges, Yoon was arrested on January 15, based on a warrant issued by the prosecutor’s office.   Phase 3 focuses on the Constitutional Court Hearings and Removal from Office (January 14 – April 4, 2025). President Yoon personally appeared before the Constitutional Court during the public hearings, which intensified the political contention surrounding the legitimacy of the impeachment. The Court held eleven sessions prior to concluding the oral arguments on February 25. On April 4, 2025, the Constitutional Court unanimously ruled to remove President Yoon from office. The decision marked the first time in South Korean constitutional history that a president was impeached and removed on charges related to insurrection and the unlawful declaration of martial law.   Through three impeachment crises, South Korea’s constitutionalism—embodied by the Constitutional Court—has played a critical role in overcoming the crisis of representative democracy. The impeachment proceedings against Presidents Park and Yoon unfolded amid intense political polarization. Before the Court’s rulings, nearly half of the public expressed unwillingness to accept an outcome that contradicted their views. However, after the decisions were rendered and some time had passed, more than two-thirds of citizens, including politicians from the impeached conservative admіnistrations, ultimately accepted the rulings.   Development of Tensions Between Democracy and Constitutionalism   The impeachment cases in South Korea illustrate the inherent tension between the principles of democracy and constitutionalism. The Constitutional Court delivered a unanimous decision to remove President Park from office, which aligned in part with the demands of the candlelight protesters. However, the Court did not fully or directly reflect those demands in its ruling. In its ruling on the impeachment of President Yoon, the Constitutional Court delivered a significant message to a politically divided leadership and a polarized Korean society.   In an unprecedentedly lengthy five-page concluding statement, the Court emphasized the importance of the guardrails of democracy, stating that “in a democratic state, each citizen must respect others as equal members of the community and recognize that, just as they believe their own opinions to be right, equal value must also be accorded to the views of others.” The process and outcome of the impeachment trial symbolically revealed that constitutionalism and the principles of democracy could be in tension or even conflict. In the case of Yoon, despite the apparent constitutional gravity of the insurrection-related charges, public opinion opposing impeachment grew 30-40 percent, 3-5 times higher than in the case of Park’s impeachment. With unprecedented procedural controversies, the adjudication process took longer than the preceding cases. The prolonged impeachment process led to widespread public frustration, with some citizens experiencing “impeachment-related distress,” including insomnia. This protracted process contributed to growing public demands that the electorate directly address presidential impeachment through democratic elections.[4]   The tension between democracy and constitutionalism manifested as legal ambiguities emerged during the process of Yoon impeachment. The Constitution of the Republic of Korea stipulates that the nine Justices of the Constitutional Court shall be appointed in equal numbers by the President, the Chief Justice of the Supreme Court, and the National Assembly. However, when the expiration of a Justice’s term coincides with a politically sensitive period, the appointment process may be subject to political influence.   This dynamic became particularly salient when the National Assembly passed the impeachment motion against President Yoon. At that time, the Constitutional Court was operating with only six Justices, due to the retirement of the President of the Court and two Justices appointed by the National Assembly. Given that a minimum of six concurring votes is required to uphold an impeachment, the unfilled vacancies effectively raised the threshold for a successful decision to unanimity, thereby heightening the political stakes of the appointment delay. Under the Yoon admіnistration, the acting prime ministerial systеm became the center of controversy regarding appointing Constitutional Court justices. During his acting presidential term, Prime Minister Han Duck-soo did not appoint three justices, prompting the National Assembly to pass an impeachment motion against him on dereliction of duty. His successor, Deputy Prime Minister Choi Sang-mok, appointed two of the three justices but withheld the appointment of the remaining progressive-leaning nominee (Ma Eun-hyuk), citing the lack of consensus with the National Assembly. Furthermore, following the Constitutional Court’s decision that reinstated him as Acting President, Prime Minister Han Duck-soo appointed Ma Eun-hyuk, a nominee previously withheld by himself. In addition, he appointed two Constitutional Court justice nominees designated by the president, succeeding justices whose terms were set to expire on April 18. These appointments, made by an acting president sixty days before the upcoming presidential election, constituted an exceptional exercise of appointment powers and sparked considerable controversy.   This sequence of events sparked debate over the scope of an acting president’s discretionary authority and the political accountability associated with delays in establishing constitutional institutions. “As Levitsky and Ziblatt (2023, 40-41) compellingly argue, this case represents a symbolic instance in which mainstream politicians have exploited constitutional loopholes to undermine democracy. Consequently, constitutionalism became tense with the demands of most citizens.   Conclusion: Restored Democracy and A Precarious Balance   The Korean case of presidential impeachment demonstrates that constitutionalism effectively holds corrupt leaders accountable, thereby strengthening the resilience of democracy. At the same time, it serves as a cautionary reminder that when the impeachment process is delayed or distorted by political interference or partisan interests, it may intensify the inherent tensions between the procedural legitimacy of constitutionalism and the legitimacy of representative democracy.   The impeachment process can become a political instrument when it is deviated from its original constitutional purpose, thereby exacerbating institutional instability and contributing to democratic backsliding (see the cases of Brazil, Paraguay, Peru, and Ecuador) (Aníbal 2007; Levitsky and Ziblatt 2018). In contrast, the South Korean case illustrates a different mode of political weaponization of the impeachment process—not through the overt abuse of impeachment per se, but through the strategic exploitation of procedural loopholes and legal ambiguities within the constitutional framework. The Korean case illustrates how democratic institutions, while formally intact, can be functionally neutralized through the political context in which they are implemented and the strategic behavior of powerholders. It reveals how the core principles of democracy—accountability and checks on executive authority—can be undermined from within. Whether constitutionalism serves as a bulwark against the abuse of power or becomes yet another political weapon stands as a critical test for South Korean democracy. ■   References   Chung, Tai-uk. 2025. “Presidential Accountability and Impeachment in the Constitutional History of Korea.” Democratic Legal Studies 87: 71-122 (in Korean).   Ginsburg, Tom, Aziz Z. Huq, and David Landau. 2021. “The Comparative Constitutional Law of Presidential Impeachment.” University of Chicago Law Review 88, 1: 81–133.   Guichard, Justine. 2022. “The Political Role of Courts in the Trials of South Korea’s 2016–2017 Impeachment Scandal.” In South Korea after the 2017 Impeachment: Between Institutional Reform and Democratic Legitimacy, ed. Hannes B. Mosler, 67–90. Baden-Baden: Nomos Verlagsgesellschaft.   Hankyoreh21. 2025. “Citizens Tired of the Delayed Impeachment Say, ‘Let’s Just Hold a National Referendum’.” https://h21.hani.co.kr/arti/politics/politics_general/57080.html (Accessed April 2, 2025).   Levitsky, Steven, and Daniel Ziblatt. 2018. How Democracies Die. New York: Crown Publishing Group.   ______. 2023. Tyranny of the Minority: Why American Democracy Reached the Breaking Point. New York: Crown Publishing Group.   Pérez-Liñán, Aníbal. 2007. Presidential Impeachment and the New Political Instability in Latin America. Cambridge: Cambridge University Press.   Son, Hyunsoo. 2025. “50% of Citizens Say ‘Yoon Should Be Expelled’; 64% Agree with Impeachment Decision [NBS].” The Hankyoreh. April 10. https://www.hani.co.kr/arti/politics/election/1191754.html (Accessed April 10, 2025)   The Constitutional Court’s decision regarding the impeachment of President Yoon Suk Yeol. https://isearch.ccourt.go.kr/view.do?idx=00&docId=84503_010500 (Accessed April 15, 2025).     [1] These offenses constituted a fundamental threat to constitutional governance. However, the full scale of the scandal, commonly called the “Park Geun-hye–Choi Soon-sil Gate,” did not come to public attention until after major media investigations brought it to light.   [2] Following the passage of the impeachment motion against President Roh Moo-hyun, nationwide protests opposing the impeachment erupted. Moreover, amid the Constitutional Court’s deliberation on the impeachment, the newly established minority ruling party, the Uri Party, won a landslide victory in the 17th National Assembly elections held in April 2004, securing a majority of the seats.   [3] The impeachment of President Roh in 2004 constituted a seminal moment in the development of constitutional jurisprudence in South Korea. It was the first case in which the Constitutional Court articulated a legal doctrine governing the impeachment of a sitting president. The Court affirmed that the president, as an institution embodying the popular will, is not exempt from constitutional accountability. It further clarified that impeachment is a legal mechanism through which the National Assembly and the Constitutional Court act as constitutional guardians on behalf of the people to hold the president accountable for violations of law. Importantly, the Court drew a sharp distinction between legal and political responsibility, underscoring that impeachment procedures are designed to address constitutional or statutory breaches—not to adjudicate political mistakes or unpopular policy decisions (Chung 2025, 94-97).   [4] While direct public involvement in presidential removal is rare, Taiwan being a notable exception, the delay intensified calls for a referendum. Opposition legislators echoed this view, arguing that a popular vote would better reflect the principle of popular sovereignty (Hankyoreh21 2025-03-29).     ■ Woo Jin Kang is a Professor at the Department of Political Science and Diplomacy, Kyungpook National University.     ■ Edited by Hansu Park, Research Associate     For inquiries: 02 2277 1683 (ext. 204) | [email protected]  

Introduction   The arrest of former Philippine President Rodrigo Duterte by the International Criminal Court (ICC) in March 2025 marks a historic milestone in the global pursuit of accountability for crimes against humanity. This article traces the legal foundations of the ICC case, the instrumental role of disinformation in obstructing accountability, and the collective efforts of domestic and international actors that culminated in Duterte’s arrest. The Philippine case exemplifies the vulnerabilities and resilience of democratic institutions under populist regimes. It also generates important questions about the limits of state sovereignty, the power of transnational justice, and the possibilities for democratic revival in Asia.   The Fall of an Untouchable   For years, he was considered invincible. Rodrigo Roa Duterte, the long-time mayor of Davao City who subsequently became the 16th President of the Philippines, was known for his fierce rhetoric, brutal anti-drug crusade, and populist appeal that resonated with millions of Filipinos. Adherents regarded him as an intrepid protector of law and order. Conversely, his detractors and human rights proponents contended that he was the engineer of one of the most violent peacetime campaigns in Southeast Asian history (Amnesty International 2017).   Now, he sits in a detention center in The Hague, having been apprehended by the ICC on charges of crimes against humanity. His fall marks a watershed event in Philippine history and international justice. However, this reckoning was not an abrupt occurrence; rather, it was the result of years of coordinated efforts by survivors, lawyers, senators, international NGOs, and legal experts who refused to let thousands of dead Filipinos become footnotes in a war that was widely regarded as unlawful from the beginning (Human Rights Watch 2020a).   The presidency of Rodrigo Duterte (2016–2022) was one of the most polarizing and consequential periods in modern Philippine history. His war on drugs, which led to the deaths of thousands of alleged drug offenders, drew condemnation from international human rights groups and global institutions (UN Human Rights Council 2020). In March 2025, Duterte was arrested under a warrant issued by the ICC for crimes against humanity. This arrest, a first in the case of a Southeast Asian head of state, has triggered a global debate on the limits of sovereignty, the power of disinformation, and the path of democracy in Asia.   The Davao Death Squad and the National War on Drugs   Rodrigo Duterte’s reputation for law-and-order governance began long before his presidency. As mayor of Davao City, he gained notoriety for his stringent stance on crime, bolstered by persistent allegations of his association with the so-called Davao Death Squad (DDS). According to reports by the United Nations and human rights organizations, the DDS was a vigilante group responsible for the extrajudicial killings of drug suspects and petty criminals (Alston 2009). A 2009 report by UN Special Rapporteur Philip Alston cited credible evidence linking local officials to these killings, indirectly implicating Duterte himself.   Upon assuming the presidency in 2016, Duterte perpetuated the same violent rhetoric and tactics at the national level. His flagship program called Oplan Tokhang was initially framed as a campaign against illegal drugs. However, it rapidly evolved into a nationwide crackdown marked by police abuses, summary executions, and widespread fear. Government statistics indicate approximately 6,000 deaths (Philippine Drug Enforcement Agency 2018), while independent estimates, including those by Amnesty International and Human Rights Watch, have placed the death toll as high as 27,000 (Amnesty International 2017; Human Rights Watch 2020b). These figures included minors, bystanders, and individuals falsely accused of drug use or peddling.   The grim scenes of bodies in alleyways with cardboard signs reading “I am a drug pusher” served as poignant symbols of the drug war’s brutality. This situation prompted a strong reaction from the global community. In 2018, the ICC announced a preliminary examination into the killings, prompting the Duterte admіnistration to withdraw the Philippines from the Court in 2019 (ICC 2018). Nonetheless, under Article 127 of the Rome Statute, the ICC retained jurisdiction over crimes committed while the Philippines was still a state party, thereby ensuring that the door to prosecution remained open (Coalition for the ICC 2024).   As early as 2016, human rights organizations, journalists, and legal aid groups began documenting abuses. Despite widespread fear and a chilling effect on civic discourse, families of victims, whistleblowers, and civil society actors courageously began compiling affidavits, forensic evidence, and testimony that would form the basis of international legal action.   Coalition for Accountability: Domestic and International Actors   Despite President Duterte’s aggressive stance against dissent, a broad and resilient coalition of domestic and international actors laid the groundwork for his eventual arrest. Early domestic resistance was initiated by lawmakers such as Senator Leila de Lima, who initiated Senate inquiries into extrajudicial killings and invited whistleblowers like Edgar Matobato to testify about Duterte’s alleged connections to the Davao Death Squad (Luu et al. 2016). Her bold stance rendered her a primary target for political retaliation, resulting in her arrest and prolonged detention on contested drug-related charges (Human Rights Watch 2022). While detained, De Lima continued to produce statements and legal commentaries that were later submitted to international bodies, including the ICC.   Senator Antonio Trillanes IV played a complementary and crucial role in the accountability movement. A former Navy officer, Trillanes used his platform to directly accuse Duterte of ordering extrajudicial killings, warning about the militarization of police forces and the erosion of the rule of law. He supported whistleblowers, liaised with international organizations, and participated in diplomatic engagements with the ICC’s Office of the Prosecutor (Philippine Daily Inquirer 2025-03-12).   Human rights organizations, including Karapatan, Amnesty International, and Human Rights Watch, systеmatically documented the drug war’s abuses. Legal advocacy groups like the Free Legal Assistance Group (FLAG), headed by Jose Manuel “Chel” Diokno, and the Center for International Law (CenterLaw), led by Joel Butuyan, compiled affidavits, mapped command responsibility structures, and filed petitions with the Supreme Court questioning the extralegal deaths from anti-drug operations (Asia News Monitor 2017-11-30). Religious leaders, notably Caloocan Bishop Pablo Virgilio David of the Catholic Bishops’ Conference of the Philippines, also played an instrumental role, offering sanctuary to victims’ families and issuing moral condemnations of state violence (Jeffrey 2019).   International NGOs, including the European Center for Constitutional and Human Rights (ECCHR) and the International Federation for Human Rights (FIDH), advised Filipino legal teams on evidentiary standards and procedural matters under international law. These global alliances were crucial in translating grassroots documentation into legal frameworks that met the ICC’s threshold for widespread and systеmatic attacks on civilians under Article 7 of the Rome Statute (ICC 2021).   The coalition’s efforts were not without risk. Victims’ families and human rights defenders faced constant threats, surveillance, and harassment. Disinformation campaigns attempted to smear activists and discredit the ICC as a neocolonial institution. Yet, through quiet diplomacy, data-gathering, and strategic advocacy, these actors sustained the necessary momentum for accountability. The unsealing of the ICC’s arrest warrant in March 2025 was the culmination of nearly a decade of collective resilience and legal innovation.   Whistleblowers, Survivor Testimony, and Building the ICC Case   The earliest sparks of resistance to Duterte’s drug war emerged from the most vulnerable segments of society—the bereaved families, the survivors, and a handful of courageous insiders. The Commission on Human Rights (CHR), an independent National Human Rights Institution created under the 1987 Philippine Constitution, and chaired by Jose Luis Martin “Chito” Gascon, began to quietly compile records of killings as early as mid-2016. Despite the risks of retaliation, survivors and family members stepped forward to give testimonies, which human rights lawyers assisted in documenting into legal records. FLAG played an important role in this process, filing domestic cases and compiling affidavits for international submission (Lozada 2021).   Religious organizations, particularly those associated with the Catholic Church, also offered protection and visibility to victims. Fr. Flavie Villanueva’s programs provided burial assistance and psychosocial support to bereaved families, and his work became a symbol of faith-based resistance (Orendain 2025). The testimonies provided a pattern of systеmatic abuse, often corroborated by leaked documents, police memorandums, and forensic reports.   Crucially, self-confessed hitman Edgar Matobato and former police officer Arthur Lascañas, stepped forward with first-hand accounts implicating Duterte in extrajudicial killings during his time as mayor and president. Matobato’s testimony before the Philippine Senate in 2016 claimed that he was a former DDS member who participated in killings on Duterte’s orders (Luu et al. 2016). Lascañas later corroborated and expanded on these claims in 2017, providing further details about the operational structure and official sanctioning of the killings (Rappler 2017-02-20).   Between 2020 and 2024, over 200 sworn statements were collected from survivors, witnesses, and former law enforcement personnel. These statements provided the systеmatic dimension required under the Rome Statute’s definition of crimes against humanity (ICC 2021). Concurrently, international NGOs such as FIDH and ECCHR advised local legal teams on standards of evidence, chain-of-custody protocols, and the legal formatting required for admissibility at the ICC.   Satellite imagery, geo-tagged data, and social media analysis by organizations like Amnesty International and Human Rights Watch further supported these claims, revealing consistent patterns of killings across locations and timelines (Amnesty International 2019). By the time the ICC’s Office of the Prosecutor formally requested authorization to investigate in 2021, it had amassed a comprehensive body of evidence demonstrating a state-led campaign against civilians (ICC 2021).   The Marcos-Duterte Alliance and Political Fallout   The arrest of Rodrigo Duterte must also be understood within the shifting dynamics of Philippine politics following his departure from office in 2022. Initially, Duterte’s political influence endured through his alliance with President Ferdinand “Bongbong” Marcos Jr., who won the presidency with Duterte’s daughter, Sara Duterte, as his running mate. The so-called “UniTeam” coalition represented a convergence of dynastic power, with Marcos consolidating his northern base and Duterte maintaining dominance in Mindanao (Curato 2022).   However, cracks began to emerge in the alliance shortly after the elections. Duterte increasingly criticized Marcos Jr. for his economic policies and foreign alignments, particularly regarding the Philippines’ warming ties with the United States and distancing from China (Reuters 2023). Meanwhile, Vice President Sara Duterte, who also served as Secretary of the Department of Education, faced criticism for her management of educational reforms and was sidelined in key policy decisions. Tensions escalated within the executive branch, eventually resulting in Sara’s resignation from her cabinet post in early 2024, although she retained the vice presidency (Philippine Star 2024-06-19).   By late 2024, the alliance had completely unraveled. Marcos Jr., facing mounting international pressure over the ICC case, shifted from passive neutrality to cautious cooperation. He allowed ICC investigators greater access and instructed state agencies, including the Commission on Human Rights and the Department of Justice, to refrain from obstructing international efforts (UN Human Rights Council 2024). This move was interpreted by the Duterte camp as a betrayal, intensifying the conflict between the two political dynasties.   The conflict culminated in the impeachment of Vice President Sara Duterte. The House of Representatives, dominated by Marcos allies, initiated the proceedings on grounds of misuse of public funds and betrayal of public trust. The Senate, convening as an impeachment court, will hear the allegations against the Vice President. While many observers saw the impeachment as politically motivated, the process was legally sound, signaling a consolidation of power by the Marcos camp (ABS-CBN News 2025-02-05).   Just weeks after Sara’s impeachment, the ICC unsealed its arrest warrant for Rodrigo Duterte. Given the political climate’s shift against the Dutertes and the limited avenues for protection, the arrest proceeded without significant institutional resistance. This series of events signaled a significant shift in Philippine political history: the collapse of a formerly dominant political dynasty and the reassertion of international legal norms within a fragile democracy.   The ICC Arrest Warrant and Legal Implications   The formal issuance and unsealing of the ICC arrest warrant against Rodrigo Duterte in March 2025 marked a defining moment in international criminal jurisprudence and the accountability campaign led by Filipino and global advocates. The warrant, issued under Article 7 of the Rome Statute, charged Duterte with crimes against humanity, including murder, other inhumane acts, and persecution of political opponents and civil society actors. These allegations stemmed from Duterte’s tenure as both president and, prior to that, mayor of Davao City, underscoring a pattern of alleged extrajudicial executions (ICC 2025).   The ICC’s legal jurisdiction over Duterte was rooted in the Philippines’ ratification of the Rome Statute in 2011 and remained valid for crimes committed prior to the country’s withdrawal in 2019, as established in Article 127(2) (Coalition for the ICC 2024). The Rome Statute’s principle of complementarity further justified the ICC’s intervention: Philippine domestic institutions had failed to investigate or prosecute the architects of the drug war, despite clear documentation and widespread allegations of state-sanctioned violence (UN Human Rights Council 2020).   Duterte’s legal team claimed that the arrest violated Philippine sovereignty and that his policies were part of a legitimate anti-crime campaign. However, the prevailing international legal consensus, as evidenced by precedents set in cases involving former Sudanese President Omar al-Bashir and former Ivorian President Laurent Gbagbo, affirms that heads of state do not possess immunity from prosecution for international crimes under active ICC mandates (Cassese 2003; Schabas 2011). The Supreme Court of the Philippines had previously upheld the legality of cooperation with the ICC in a 2021 decision that cited the country’s obligations under international law (Supreme Court of the Philippines 2021).   The execution of the arrest was made possible by the political realignment under President Marcos Jr., who allowed the operation to proceed without obstruction. Duterte was apprehended at the Manila airport during a joint operation involving Philippine authorities and international observers, and was swiftly transferred to The Hague. The arrest triggered national and international reactions, celebrated by human rights groups and criticized by populist factions. However, the incident ultimately reinforced the primacy of international law in addressing issues of impunity.   The legal implications of Duterte’s arrest extend beyond the Philippines. The case has reinvigorated discussions on the efficacy of the ICC, the reach of transnational justice, and the responsibilities of state parties to the Rome Statute. Additionally, it has exerted pressure on institutions to consider complementary prosecutions for mid- and lower-level officials implicated in the drug war.   Disinformation and the Battle Over Truth   During Rodrigo Duterte’s presidency, disinformation was not merely a byproduct of political rhetoric but a strategic instrument of governance. From the onset of his presidency, Duterte’s allies utilized coordinated digital campaigns, troll farms, and state-aligned media to craft a parallel narrative portraying the war on drugs as a righteous crusade against national decay. Notably, the admіnistration invoked the purported addiction of three million Filipinos as a basis to justify extreme tactics, despite a dearth of empirical evidence to support this claim (Santos 2017).   The Duterte admіnistration’s information strategy systеmatically dehumanized drug users, portraying them as “non-Filipinos,” and the “scourge of society,” thereby effectively legitimizing their elimination in the public eye (David 2020). These narratives permeated not only state press briefings but also online spaces, where troll networks amplified pro-admіnistration talking points and attacked dissenting voices. Journalists from Rappler, ABS-CBN, and the Philippine Daily Inquirer were frequently branded as either foreign agents or fake news propagators (Freedom House 2021).   Targets of these campaigns also included human rights defenders and legal actors. Senator Leila de Lima was falsely accused of engaging in drug trafficking and moral impropriety, while Senator Antonio Trillanes IV was cast as a coup plotter and foreign puppet. International organizations such as the ICC were portrayed as neocolonial meddlers attempting to usurp Philippine sovereignty (Tsek.ph 2022).   Disinformation undermined public support for accountability, by painting critics as traitors and institutions like the ICC as illegitimate. It further silenced witnesses and survivors by subjecting them to digital harassment and real-world intimidation. Testimonies provided by victims’ families were dismissed as lies or foreign-funded fabrications, even as legal groups verified the authenticity and consistency of these statements (Amnesty International 2019).   Investigative reports later confirmed that many of these campaigns were coordinated through paid networks and government-linked public relations firms. A 2021 study by the Digital Forensic Research Lab found substantial evidence of coordinated inauthentic behavior on Facebook and Twitter/X, aimed at discrediting international probes and inflating Duterte’s approval ratings (DFRLab 2021).   Despite the scale of disinformation, civil society demonstrated resilience in the face of these challenges. Fact-checking alliances like Tsek.ph, along with VERA Files and Rappler, tracked and debunked coordinated attacks. International watchdogs highlighted the Philippines as a case study in how authoritarian populism weaponizes digital media to suppress dissent and obstruct justice (Freedom House 2021).   By the time the ICC warrant was unsealed in 2025, the credibility of Duterte’s information machine had begun to collapse. Former troll operators turned whistleblowers, social media platforms began taking down coordinated networks, and a more digitally literate public had grown wary of state-sponsored narratives. The battle over Duterte’s legacy, once dominated by propaganda, now hinged on facts, and the weight of legal evidence proved overwhelming.   Democratic Implications for Asia   The arrest of Rodrigo Duterte holds profound implications in the context of democratic governance in Asia. For decades, Southeast Asia has witnessed the entrenchment of authoritarian populism, from the military juntas of Myanmar to the centralized rule in Cambodia and Thailand. The Philippines, frequently lauded as a model of post-authoritarian transition following the 1986 People Power Revolution, experienced democratic backsliding under Duterte’s admіnistration. This era has been marked by attacks on judicial independence, suppression of opposition, and normalization of state violence (Thompson 2020).   Duterte’s arrest by the ICC is a potential inflection point. It demonstrates that even entrenched populist leaders may be subject to the jurisdiction of international law. It also affirms the role that civil society, independent media, and transnational legal institutions can play in restoring accountability. The arrest sends a powerful message across the region – that heads of state are not immune from prosecution when domestic institutions fail to uphold the rule of law (Palmer and Sperfeldt 2016).   This precedent may embolden pro-democracy movements in neighboring countries. In Myanmar, where the military has been violently suppressing dissent since the 2021 coup, and in Cambodia, where opposition parties have been systеmatically dismantled, the arrest of Duterte offers a hopeful contrast. This development suggests that with persistence, international support, and legal rigor, justice can be pursued even under hostile political conditions (Neelakantan 2025).   However, the arrest also reveals persistent risks. Disinformation networks demonstrate resilience and adaptability, effectively reinterpreting Duterte’s accountability as foreign interference or elite retribution. Moreover, there is a risk that authoritarian regimes in the region will respond by further insulating themselves from international institutions, tightening control over information, and using legal reforms to shield state actors from scrutiny (Levitsky and Way 2020).   The eventual outcome of Duterte’s arrest will be contingent on subsequent events. Should the Philippines pursue substantial judicial reform, protect whistleblowers and survivors, and hold accomplices accountable, it may be able to reestablish its democratic credentials. Otherwise, the moment could be co-opted or forgotten. Presently, the arrest signifies a singular instance of reckoning that may inspire democratic resurgence in an era increasingly defined by impunity.   Conclusion   The arrest of Rodrigo Duterte by the ICC signifies a watershed moment in the realm of international law and a critical evaluation of democratic principles. For years, Duterte exemplified the impunity that plagues numerous populist regimes. He rose to power by demonizing vulnerable populations, weaponizing state institutions, and distorting truth through disinformation. His apprehension in March 2025 is the culmination of years of coordinated resistance by survivors, legal advocates, journalists, and civil society groups who refused to let thousands of extrajudicial killings go unanswered (Human Rights Watch 2020a; Amnesty International 2019).   From a legal standpoint, the ICC’s case against Duterte underscores the continued relevance of the Rome Statute in holding former heads of state accountable, even in instances where withdrawal from the Court’s jurisdiction has occurred. The doctrine of complementarity served as a key mechanism, enabling the ICC to intervene when Philippine institutions proved unwilling or unable to investigate and prosecute serious crimes. From a political standpoint, Duterte’s arrest underscores the strategic importance of international cooperation, especially in moments when domestic mechanisms fall short (ICC 2025; Coalition for the ICC 2024).   Furthermore, Duterte’s case serves as a cautionary tale, highlighting the resilience of authoritarian narratives. Disinformation, once considered a fringe tactic, became a central element of governance under Duterte, thereby reinforcing impunity and eroding democratic institutions. Addressing such narratives requires not only legal instruments but also a reinvestment in civic education, press freedom, and transnational solidarity (DFRLab 2021; Freedom House 2021).   In the broader Asian context, the case provides a precedent and serves as a cautionary example, underscoring the potential for international intervention when domestic justice systеms are found to be compromised. It challenges the long-standing regional norm of absolute sovereignty and signals to other authoritarian regimes that legal accountability can transcend borders.   The pursuit of justice for the victims of Duterte’s drug war remains an ongoing process. The judicial process will persist, evidence will be tested, and the legacies of disinformation and violence will linger. Still, it is noteworthy that for the first time in years, the prospect of accountability has transitioned from mere aspiration to a tangible reality. ■   References   ABS-CBN News. 2025. “Sara Duterte Impeached, Removed from Office.” February 5. https://news.abs-cbn.com (Accessed April 7, 2025)   Alston, Philip. 2009. Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions: Mission to the Philippines. United Nations Human Rights Council. https://digitallibrary.un.org/record/626743?v=pdf (Accessed April 7, 2025)   Amnesty International. 2017. ““If you are poor, you are killed”: Extrajudicial Killings in the Philippines’ “War on Drugs”.” https://www.amnesty.org/en/documents/asa35/5517/2017/en/ (Accessed April 7, 2025)   ______. 2019. “‘They Just Kill’: Ongoing Extrajudicial Executions and Other Violations in the Philippines’ ‘War on Drugs.” https://www.amnesty.org/en/documents/asa35/4156/2020/en/ (Accessed April 7, 2025)   Asia News Monitor. 2017. “Philippines: SolGen asks SC to junk petitions vs. anti-drug ops.” November 30. https://www.proquest.com/docview/1969889530/A26041903E674ACCPQ/1?accountid=190474&sourcetype=Newspapers (Accessed April 8, 2025)   Cassese, Antonio. 2003. International Criminal Law. Oxford: Oxford University Press.   Coalition for the ICC. 2024. “Philippines and the ICC: Frequently Asked Questions.” https://www.coalitionfortheicc.org (Accessed April 7, 2025)   Curato, Nicole. 2022. “The Rise of the UniTeam: Authoritarian Nostalgia in the 2022 Philippine Elections.” Journal of Asian Politics and History 45, 2: 110–123.   David, Randy. 2020. “The Weaponization of Language in Duterte’s Drug War.” Philippine Sociological Review 68, 1: 15–30.   DFRLab. 2021. “Tracking Coordinated Inauthentic Behavior in the Philippines.” Atlantic Council. https://www.atlanticcouncil.org (Accessed April 7, 2025)   Freedom House. 2021. “Freedom on the Net: The Philippines.” https://freedomhouse.org/country/philippines/freedom-net/2021 (Accessed April 7, 2025)   Gavilan, Jodesz. 2025. “The International Criminal Court and Duterte’s bloody war on drugs.” Rappler. March 10. https://www.rappler.com/newsbreak/iq/timeline-international-criminal-court-philippines-rodrigo-duterte-drug-war/ (Accessed April 8, 2025)   Human Rights Watch. 2020a. “Philippines: Events of 2020.” https://www.hrw.org/world-report/2021/country-chapters/philippines (Accessed April 7, 2025)   ______. 2020b. “Our Happy Family Is Gone.” May 27. https://www.hrw.org/report/2020/05/27/our-happy-family-gone/impact-war-drugs-children-philippines (Accessed April 8, 2025)   ______. 2022. “Philippines: Candidates Should Pledge to Free Jailed Senator.” February 22. https://www.hrw.org/news/2022/02/22/philippines-candidates-should-pledge-free-jailed-senator (Accessed April 8, 2025)   International Criminal Court. 2018. “Statement of the Prosecutor on Preliminary Examination of the Situation in the Philippines.” https://www.icc-cpi.int/news (Accessed April 7, 2025)   ______. 2021. “Situation in the Philippines: Request for Authorization of an Investigation Pursuant to Article 15(3).” https://www.icc-cpi.int/pages/situation.aspx (Accessed April 7, 2025)   ______. 2025. “Warrant of Arrest for Rodrigo Duterte – Situation in the Philippines.” https://www.icc-cpi.int (Accessed April 7, 2025)   Jeffrey, Paul. 2019. “Philippine bishop: Duterte’s drug war is illegal, immoral and anti-poor.” CatholicPhilly.com. February 19. https://catholicphilly.com/2019/02/news/world-news/philippine-bishop-dutertes-drug-war-is-illegal-immoral-and-anti-poor/ (Accessed April 8, 2025)   Levitsky, Steven, and Lucan A. Way. 2020. “The New Competitive Authoritarianism.” Journal of Democracy 31, 1: 51–65.   Lozada, David. 2021. “How Duterte’s war on drugs is being significantly opposed within the Philippines.” Melbourne Asia Review. July 12. https://www.melbourneasiareview.edu.au/how-dutertes-war-on-drugs-is-being-significantly-opposed-within-the-philippines/ (Accessed April 8, 2025)   Luu, Chieu, Tiffany Ap, and Kathy Quiano. 2016. “Philippines President ‘ordered death squad hits while mayor,’ alleged hitman claims.” CNN World. September 16. https://edition.cnn.com/2016/09/15/asia/philippines-duterte-senate-hearing/index.html (Accessed April 8, 2025)   Neelakantan, Shailaja. 2025. “With Duterte in ICC custody, Southeast Asians see hope for region’s victims.” Benar News. March 14. https://www.benarnews.org/english/news/philippine/duterte-icc-arrest-fuels-hope-in-seasia-03142025162002.html (Accessed April 8, 2025)   Orendain, Simone. 2025. “Priests helping relatives of victims of Philippine ‘war on drugs’ jubilant over Duterte’s arrest.” National Catholic Reporter. March 18. https://www.ncronline.org/news/priests-helping-relatives-victims-philippine-war-drugs-jubilant-over-dutertes-arrest (Accessed April 8, 2025)   Palmer, Emma, and Christoph Sperfeldt. 2016. “International Criminal Justice and Southeast Asia: Approaches to Ending Impunity for Mass Atrocities.” Analysis from the East-West Center, No. 126, September. https://www.eastwestcenter.org/sites/default/files/private/api126.pdf (Accessed April 8, 2025)   Philippine Daily Inquirer. 2025. “Timeline: ICC Investigation of Duterte.” March 12. https://globalnation.inquirer.net/266821/timeline-icc-investigation-of-duterte (Accessed April 8, 2025)   Philippine Drug Enforcement Agency. 2018. “#RealNumbersPH: Drug War Statistics. Government of the Philippines.” https://pdea.gov.ph (Accessed April 7, 2025)   Philippine Star. 2024. “Sara Duterte Resigns from DepEd, Remains Vice President.” June 19. https://www.philstar.com (Accessed April 7, 2025)   Rappler. 2017. “Ex-Davao policeman tags Duterte in death squad, murder.” February 20. https://www.youtube.com/watch?v=AZHqH-4Wm1Q (Accessed April 8, 2025)   Reuters. 2023. “Duterte Slams Marcos over US Ties, Inflation Response.” https://www.reuters.com (Accessed April 7, 2025)   Santos, Ana P. 2017. “The Myth of 3 Million Drug Addicts: How Duterte’s Numbers Mislead.” CNN Philippines. https://cnnphilippines.com (Accessed April 7, 2025)   Schabas, William. 2011. An Introduction to the International Criminal Court. 4th ed. Cambridge: Cambridge University Press.   Supreme Court of the Philippines. 2021. “Decision on ICC Cooperation and Philippine Obligations under International Law.” https://sc.judiciary.gov.ph (Accessed April 7, 2025)   Thompson, Mark R. 2020. “Explaining Duterte’s Rise and Rule: Penal Populist Leadership or a Structural Crisis of Oligarchic Democracy in the Philippines? Philippine Political Science Journal 41, 1-2: 5-31.   Tsek.ph. 2022. Fighting Disinformation: Philippine Election Fact-Checking Alliance. https://tsek.ph/ (Accessed April 7, 2025)   UN Human Rights Council. 2020. “Report of the United Nations High Commissioner for Human Rights on the Situation of Human Rights in the Philippines.” https://digitallibrary.un.org/record/3879531?v=pdf (Accessed April 7, 2025)   ______. 2024. “Statement on ICC Access in the Philippines.” https://www.ohchr.org (Accessed April 7, 2025)     ■ Francisco A. Magno is a Professor at De La Salle University.     ■ Edited by Hansu Park, Research Associate     For inquiries: 02 2277 1683 (ext. 204) | [email protected]  

The promotion of democracy is a challenging agenda in the Association of Southeast Asian Nations (ASEAN). A close examination of the political systеms of ASEAN member countries reveals the sensitivity of the topic of democracy in the region. As ASEAN is a key component of the Indo-Pacific regional order, the democratic development of ASEAN has important implications for the peace and stability of both the Indo-Pacific region and ASEAN member countries. Thus, building a regional democracy promotion framework in Southeast Asia serves as a foundation for the political and economic stability of the region. This paper examines the state of multilateral efforts to advance democracy in ASEAN. Utilizing insights from previous efforts, this paper proposes strategies for constructing a result-oriented framework for advancing democracy in Southeast Asia.   Efforts for Advancing Democracy in the ASEAN Framework and Their Limitations   The democracy deficit in ASEAN does not necessarily imply a lack of member countries’ interest or desire to promote democracy. Political development has never been the organization’s priority. At its inception, ASEAN was an intergovernmental organization designed to collectively respond to the spread of communism and resolve conflicts and animosities between major Southeast Asian countries. Most member countries were reluctant to accommodate the democratic agenda within the ASEAN framework; thus, the pursuit of a democracy agenda in ASEAN is a phenomenon that requires an explanation. Two factors can explain ASEAN’s attempt to accommodate the political development agenda. Firstly, certain member countries were undergoing a democratic transition, and they sought for ASEAN to evolve into an intergovernmental organization that would uphold democratic norms and support their democratic transitions. Secondly, countries such as Indonesia and the Philippines recognized that political development is essential to peace, stability, and prosperity—goals of the ASEAN Security Community—and thus pursued the inclusion of a democracy agenda in drafting the ASEAN Security Community Plan of Action (ASCPA) (Sukma 2009).   The initial discussions concerning this agenda took place in drafting the 2004 ASCPA, following the formulation of the Bali Concord II of 2003. Under Indonesia’s leadership and with the support of the Philippines, the ASEAN Security Community (ASC) adopted the goals of “peace, stability, democracy, and prosperity in the region.” The Vientiane Action Programme (VAP) of 2004 also stressed that “ASEAN member countries shall not condone unconstitutional and undemocratic changes in government” and called for the promotion of human rights within ASEAN. The VAP stresses that the ASC should be achieved by creating “a democratic, tolerant, participatory and transparent community in Southeast Asia” (ASEAN 2004). The emphasis on democracy was further accentuated in the ASEAN Charter, signed in 2007 and ratified in 2008. Though not binding, the ASEAN Charter obliges its members to strengthen democracy, enhance good governance and the rule of law, and promote and protect human rights and fundamental freedoms (ASEAN 2007). After the draft of the ASEAN Charter, significant advancements were witnessed in ASEAN’s efforts to promote human rights. The ASEAN Intergovernmental Commission of Human Rights (AICHR) was established in 2009 in line with the ASEAN Charter, and the ASEAN Human Rights Declaration was adopted in 2012.   Aside from collective ASEAN endeavors, certain ASEAN member countries have tried independently to promote democracy in the region. In addition to its leadership role in the ASEAN framework, the Indonesian government established the Bali Democracy Forum (BDF) in 2008 as the first regional forum to convene Asian government leaders at the ministerial level. The BDF invites non-democratic governments and aims to promote democracy by sharing democratic experiences and best practices without censuring other countries. The BDF, however, embraces the principle of non-interference and encourages gradual democratic transition rather than criticizing violations of democratic norms or pressuring the governments that commit them. This approach, coupled with the limited involvement of civil society actors, has led to criticisms that the BDF is unable to achieve meaningful outcomes. Government change is the most fundamental challenge to this government-sponsored platform. The 2025 meeting was canceled after the 2024 leadership transition in the nation.   New Strategies Based on the Lessons from Previous Efforts   The only tangible outcomes of ASEAN-centered efforts to promote democracy have been statements and declarations that support democratic norms and some organizational upgrades (The Kofi Annan Foundation and National Human Rights Commission of Malaysia 2017). This lack of significant progress can be attributed to two primary factors. First, the varying levels of democratic development and differences in the perceptions of security threats among member countries have resulted in differing prioritization of democracy. Second, and perhaps more fundamental, are ASEAN’s organizational characteristics: non-interference norms, consensus-based decision-making, and lack of enforcement mechanisms (Haacke 2003). For example, although the ASCPA explicitly stipulates that irregular changes of government should not be tolerated, ASEAN did not take action following the 2014 Thai military coup, nor did it impose sanctions following the 2021 Myanmar military coup that overthrew an elected government. AICHR, ASEAN’s organ for human rights, merely issued a statement and hosted workshops on human rights violations by the Myanmar military.   The most important lesson from ASEAN’s efforts in promoting democracy is that intergovernmental frameworks, such as ASEAN, may not be the optimal vehicles for democracy promotion in Southeast Asia. Instead, a more effective approach could be building a platform outside the ASEAN framework, circumventing the constraints imposed by ASEAN’s non-interference norms. The European Union (EU)’s experience in promoting democracy within the ASEAN framework offers a relevant lesson. Since the 2000s, the EU has been actively engaged in addressing the democracy agenda in its relations with ASEAN. However, when the EU-ASEAN relationship was expanded through the Nuremberg Declaration on an EU-ASEAN Enhanced Partnership in 2007, democracy promotion was not discussed as a major agenda item. This was partly due to ASEAN’s reluctance to incorporate a democracy agenda, which led the EU to advocate for democracy and human rights issues outside the ASEAN-EU framework (Wiessala 2004). The example of ASEAN-EU relations suggests that it is more productive to pursue a cooperative framework comprising select ASEAN countries that are willing to discuss democracy issues with outside actors.   Due to the ineffectiveness of government-led initiatives, the role of non-state actors in promoting democracy in Southeast Asia has received significant attention. Ichihara (2021) emphasizes the role of networks of civil society organizations in facilitating democracy cooperation mechanisms in Asia. Ichihara argues that the presence of civil society organizations was crucial in sustaining the momentum for regional democracy frameworks. Southeast Asia has strong civil society networks with a focus on promoting democracy and human rights. Civil society networks such as the ASEAN People’s Forum provide a space for grassroots organizations, activists, and NGOs to engage with ASEAN on issues like human rights, democracy, and social justice. Parliamentary-related organizations also have a presence in democracy promotion in ASEAN. Notably, the ASEAN Inter-Parliamentary Assembly and the ASEAN Parliamentarians for Human Rights (APHR) have played pivotal roles in promoting democracy and human rights across Southeast Asia. It is crucial to underscore the role of global foundations with a strong regional focus in Asia, which serve as a significant proponent of democracy in the region. These foundations provide financial support to existing civil society organizations and implement their own initiatives, including advocacy efforts. In contrast to the activities of civil society organizations, which are centered on raising awareness about the importance of democracy, good governance, and human rights, these foundations utilize their financial resources to support and implement result-oriented projects and initiatives. For example, the global foundation Luminate supports independent media to protect freedom of expression, counter disinformation and misinformation projects, and support investigative journalism. It also works to protect dissidents and supports global political organizations by providing resources such as training, networking, and funding.   The importance of civil society participation is closely related to the broader discourse on the institutional framework for promoting democracy at the regional level. A hybrid platform consisting of interested ASEAN member countries, non-ASEAN countries, and civil society organizations could be a viable option for effectively promoting democracy in the region. More specifically, the efficacy of government participation is maximized within a Track 1.5-type framework.[1] The participation, or at least strong support, of state actors is a prerequisite for an outcome-oriented regional framework. Since previous experience suggests that intergovernmental frameworks have more drawbacks than merits, a Track 1.5 regional platform, in which government officials participate in a private capacity and collaborate with non-state actors, may be a more effective alternative. In this type of framework, government officials can exchange views with fewer of the formal constraints that exist in an intergovernmental setting. The outcome of this type of interaction can feed new ideas and solutions to intergovernmental dialogue and negotiation.   The efficacy of this hybrid framework hinges upon the presence of a core country or countries that can assume an entrepreneurial leadership role, both between governments and civil society organizations and, more importantly, among governments.[2] Canada’s role in the establishment of the 1997 Ottawa Convention (Mine Ban Treaty) offers a useful reference. Without Canada’s pivotal role, neither the drafting nor ratification of the Ottawa Convention would have been possible (Axworthy and Taylor 1998). In the context of ASEAN, this paper suggests that South Korea, Japan, and Australia collaborate closely with some ASEAN member countries that demonstrate a strong commitment to democracy and civil society, to build a regional partnership for advancing democracy in the region.   The final recommendation posits that the promotion of democracy in ASEAN could be enhanced through the involvement of non-regional actors. Where local impetus for advancing democracy is limited, the involvement of external entities could yield more favorable outcomes, if it is properly implemented and managed. This suggestion is somewhat controversial because, aside from Thailand, all other ASEAN member countries have colonial experiences, rendering them highly sensitive to the involvement of foreign governments in their domestic affairs. In light of these sensitivities, the principle of local ownership should be honored in the regional platform. As articulated by Yves Leterme (2017), the former Secretary-General of International IDEA (Institute of Democracy and Electoral Assistance), “Democracy cannot be exported or imported, only supported.” Finally, the agenda in democracy promotion framework should be acceptable to all members of ASEAN, especially to non-democratic members. In this vein, less sensitive domains, such as capacity building (e.g., governance capacity), youth education, anti-corruption measures, and humanitarian relief should be prioritized in regional framework.   Conclusion   Based on the lessons of previous efforts to build democracy support infrastructure in ASEAN, this paper offers four suggestions for future strategies. First, future efforts to build a democracy promotion framework should involve democratic allies from other Asian countries, such as South Korea, Australia, and key European liberal democracies. Since intergovernmental-type institutions engaging all members of ASEAN have made democracy promotion limited due to the principle of non-interference, creating a democracy promotion platform between committed ASEAN member countries and their democratic allies beyond this sub-region would be worthwhile to pursue. Second, the role of civil society organizations in maintaining the momentum for fostering democracy is indispensable. It is also imperative to develop a way to leverage the role of funding organizations in building a regional democracy promotion framework. Third, while the contributions of civil society organizations are important, government participation remains the critical element in the establishment of any regional democracy support architecture. In this context, a hybrid institution in which civil society organizations work together with governments—mediated by a core country or countries—is a promising option. Finally, considering the strong resistance of some ASEAN member countries, the participation of external governments, such as those from the EU or Asian neighbors (South Korea, Japan, and Australia), should be encouraged. In this case, the principle of local ownership should be honored, and the pace and agenda for democracy promotion should be amenable to all participating actors. ■   References   Axworthy, Lloyd and Sarah Taylor. 1998. “A Ban for All Seasons: The Landmine Convention and Its Implications for Canadian Diplomacy.” International Journal 53, 2: 189-203.   Haacke, Jurgen. 2003. ASEAN’s Diplomatic and Security Culture: Origins, Development and Prospects. New York: Routledge.   Ichihara, Maiko. 2021. “Expanding Multilateral Frameworks for Democracy in Asia and the Necessity of Track 1.5 Approaches.” Commentary, Brookings Institution. January 22.   Kofi Annan Foundation and National Human Rights Commission of Malaysia. 2017. Conference Report: Democracy in Southeast Asia: Achievements, Challenges and Prospects. September 2-3. Kuala Lumpur, Malaysia. Nan, Susan A. 2005. “Track One-and-a-Half Diplomacy: Contribution to Georgian-South Ossetian Peacemaking.” In Ronald J. Fisher, ed. Paving the Way. Lanham: Lexington Book.   Leterme, Yves. 2017. Speech: Democracy and the Global Challenge of Electoral Integrity. In Conference titled Democracy in Southeast Asia: Achievements, Challenges and Prospects. September 2. Kuala Lumpur, Malaysia.   Sukma, Rizal. 2009. Democracy Building in South East Asia: The ASEAN Security Community and Options for the European Union. International Institution for Democracy and Electoral Assistance.   Wiessala, Georg. 2004. “Promoting Human Rights in EU-Asia Relations: Burma, China and Indonesia.” EurAsia Bulletin. 8, 1-2: 3-6.   Young, Oran R. 1991. “Political Leadership and Regime Formation: On the Development of Institutions in International Society.” International Organization 45, 3: 281-308.   ASEAN Secretariat. 2003. “Declaration of ASEAN Concord II (Bali Concord II).”   ______. 2004. “Vientiane Action Programme (VAP), 2004-2010.”   ______. 2008. “ASEAN Charter.”     [1] The distinction between Track 2 and Track 1.5 is elusive. By Track 1.5 type, I am referring to an unofficial level interaction but involves officials in a private capacity. For track 1.5 diplomacy, see Nan (2005).   [2] For the role of the entrepreneurial leadership in international institution building, see Young (1991).     ■ Hyun-seok Yu is Professor at the Department of Political Science and International Relations, Kyung Hee University, and former Ambassador of the Republic of Korea to Malaysia.     ■ Edited by Hansu Park, Research Associate     For inquiries: 02 2277 1683 (ext. 204) | [email protected]  

As the United States prepares to inaugurate Donald Trump for his second term in office, democracy advocates around the world are bracing for its impact. During his first term, President Trump showed little interest in democracy: his foreign policy was entirely transactional, and he expressed admiration for authoritarian strongmen from Saudi Arabia to North Korea to Russia. Most obviously, his first term ended in a paroxysm of violence against the institutions of American democracy during the January 6th insurrection. Having failed in his attempt to overthrow American democracy in 2021, President Trump now stands triumphant again in 2025 after winning a closely fought race with Vice President Kamala Harris. With President Trump having laid bare his indifference to American democracy and the rule of law—despite having secured two victories in democratic elections—what does his second term in office portend for democracy around the world, particularly in Asia?   President Trump is famously hard to predict. In addition to an erratic policy agenda that swings wildly by the day, and which is often conducted through social media blasts, his approach to foreign policymaking is marked by bravado, exaggeration, and misdirection. One of President Trump’s assets as a politician is his ability to confuse his audience, who can never truly know if he means what he says. How serious is President Trump’s desire to purchase Greenland from Denmark (Marshall 2025): is it a negotiating tactic, a distraction from difficult congressional hearings on his cabinet appointments, or just a passing thought that is easily shared via Truth Social and eagerly reshared by engagement-hungry news organizations? Rather than take President Trump at his word, the best way to anticipate the effects of his admіnistration on democracy in Asia is to consider what we know about his actions during his previous tenure, and then to examine potential differences the second time around.   The Record of Democracy in Asia Over the Past Four Decades   As a first step to understanding the effect that the second Trump admіnistration will have on Asian democracy, it is imperative to undertake a comprehensive review of the record of democracy in Asia over the past four decades. Figure 1 uses data from the Varieties of Democracy (V-Dem) project to illustrate the status of democracy across the region between 1980 and 2022, the last year for which data are currently available. Each plot shows trends in democracy based on V-Dem’s liberal democracy index, a composite index that integrates expert information from independent coders on the extent to which each country’s political regime meets a basic definition of liberal democracy. The first plot on the upper left-hand side of the figure shows the weighted average of democracy scores for all countries in the figure, providing a summary index of trends in democracy across Asia that reflects differences in population across states in the region.   Figure 1. Democracy in Asia, 1980-2022     The data reveal a discernible trend: on the whole, Asia is experiencing a period of democratic backsliding that dates to the mid-2010s. Individual country experiences vary, with generally positive signs for democracy in South Korea and Taiwan, small but meaningful improvements in Malaysia and Sri Lanka. However, these indicators of democratic progress are overwhelmed by the steep decline in liberal democracy in India, as well as the democratic erosion observed in Bangladesh, Indonesia, the Philippines, and Thailand. Additionally, China, Pakistan, and Vietnam remain firmly authoritarian, with no meaningful change in their level of democracy under President Trump. Even Myanmar—a regional bright spot from 2015-2020—has suffered a staggering setback after a tentative but meaningful political liberalization measure last decade. Japan, the lone democratic stalwart in the region, is the only country in Asia to have maintained a consistently high level of liberal democracy since 1980. It is unlikely that President Trump’s behavior in office during his first term (January 2017-January 2021) is responsible for these patterns. Democratic erosion across the region began prior to Trump’s election in November 2016 and continued under the subsequent admіnistration of President Joe Biden. The two most significant recent coups in Thailand (2014) and Myanmar (2021) occurred during Democratic admіnistrations in the U.S. These observations do not imply that the Biden admіnistration is responsible for the democratic setbacks that Asia has recently faced. However, it does remind us that most of what shapes the fate of Asian democracies is domestic in nature, driven by internal political divides and ongoing political developments within Asian states. Whereas Cold War politics created a direct incentive for the United States and other Western powers to intervene in the domestic politics of Asian states, such direct intervention is much less common in the contemporary era.   The transactional nature of President Trump’s first admіnistration foreign policy meant that he, like other U.S. presidents in the post-Cold War world era, worked with democratic and nondemocratic states alike in Asia. His memorable summits with Kim Jong Un were moments of great fanfare, but with little political consequence. His very public anti-Chinese rhetoric included almost no concern whatsoever for anything related to the domestic political conditions within China. Many have noticed the parallels in the personal styles of President Trump and Philippine President Rodrigo Duterte, but this did not lead to closer relations between the U.S. and the Philippines—in fact, Duterte’s rhetoric was more open to China than had been his predecessors. The military regime in Thailand, another U.S. treaty ally, was given wide berth by the Trump admіnistration, which continued the longstanding U.S. practice of seeing Thailand as a bulwark against a rising China. With the benefit of hindsight, and President Trump’s personal style notwithstanding, we can understand his first admіnistration’s foreign policy as essentially a Trumpian articulation of classical realism. It is statist in orientation, uninterested in the domestic political arrangements of foreign countries, and directed by President Trump’s understanding of the U.S. national interest in a competitive world.   Trump’s Indifference to Democracy: A Cause for Optimism?   Having established that the first Trump admіnistration exhibited a marked indifference to democracy, both in Asia and elsewhere, we are now in a position to consider how the second Trump admіnistration’s foreign policy will shape democracy in Asia. If predictions are to be made based on the previous admіnistration, the signs are cautiously optimistic. Notwithstanding Trump’s personal fondness for authoritarian strongmen, his next admіnistration appears unlikely to take measures that will directly encourage further autocratization across the region. A case in point is Indonesia, a strategically valuable nonaligned regional power with ambitions to be the Maritime Axis of the Asia-Pacific region (Cabinet Secretariat of the Republic of Indonesia 2021). The past decade has seen former president Joko Widodo and his newly elected successor, Prabowo Subianto, taking clear steps to undermine the country’s constitutional order and the rule of law. The next Trump admіnistration will almost certainly not have any direct influence in either supporting or opposing these developments as they continue over the next four years. Prabowo may—like Duterte—share some personal affinity to a politician like Trump, but on a policy level, each leader’s national interests will dominate any ideological or pragmatic battles over either country’s internal politics.   These are reassuring signals about the future of Asian democracy under the second Trump admіnistration, not because President Trump is any defender of democracy, but because he is altogether indifferent to it. This gives Asian states room to chart their own courses. Most likely, democracy in Asia will be driven by the choices of Asian politicians and their countries’ mass publics, not by U.S. foreign policy priorities and interests. If there is any exception to the predicted indifference of the second Trump admіnistration to Asian democracy, it is on the Korean peninsula. The recent declaration of martial law by President Yoon Suk Yeol, accompanied by the ongoing political and constitutional saga in the aftermath, was a serious crisis affecting a close U.S. ally (Choe and Livni 2024). The outcome matters for U.S. foreign policy because of the partisan differences within South Korea regarding the most effective approach to confronting the North. It is risky to make any concrete predictions about politics on the Korean peninsula in the coming four years. However, this is the Asian context in which the second Trump admіnistration might have clear preferences for one party over another. If security conditions were to deteriorate on the peninsula, the Trump admіnistration may prioritize U.S. foreign policy interests over the rule of law and democratic stability in South Korea.   Project 2025’s Indirect Effects on Global Democracy   Even if the U.S. is more reluctant to intervene directly in the domestic politics of Asian states, policies such as sanctions and efforts to promote democracy can still affect global democracy. For decades, the U.S. has promoted global democracy indirectly by supporting electoral reforms and strengthening civil society. While these efforts may not lead to a fundamental shift in the political landscape of any country, they can contribute to the strengthening of democratic institutions and processes. By supporting civil society and actors who strive for rights and freedoms, these efforts can also support nascent democratic movements in otherwise closed political systеms.   Notwithstanding this history, Asia’s democrats should be apprehensive about what the next four years will bring from Washington. That is because relative to the first Trump admіnistration, the second Trump admіnistration has adopted a distinctly more explicit policy agenda, summarized in Project 2025 (project2025.org). During President Trump’s 2016 electoral campaign, the Republican Party famously refused to even announce a platform. The subsequent admіnistration was disorganized and often ineffective. Not so the second time around. Project 2025 is a blueprint for how the next admіnistration will govern, and its subtitle “Presidential Transition Project” indicates its authors’ understanding that the second Trump admіnistration should have the purpose and direction that his first admіnistration lacked.   In terms of foreign policy, Project 2025 espouses a model of the president as a statesman whose agenda embodies the country’s national interests. The foreign policy bureaucracy is tasked with implementing this vision. Project 2025 sees the U.S. State Department as an obstacle to Trump’s agenda and finds other parts of the U.S. foreign policy establishment, such as the U.S. Agency for Global Media, as misguided, wasteful, and inconsistent with U.S. national interests.   There is no space for democracy promotion in Project 2025. Democracy is invoked as an American value only sparingly, and mostly in cases where the fight for freedom and democracy can be a cudgel against an adversarial regime like Iran or Venezuela. Democracy in Asia is entirely absent from Project 2025’s blueprint for U.S. foreign policy. Agencies like the United States Agency for International Development (USAID) are directed to prioritize national security interests, which mostly means containing China rather than supporting civil liberties and individual freedoms. Project 2025 specifically identifies the Bureau for Democracy, Development, and Innovation as pivotal for USAID’s reorientation around “trade, economic growth, innovation, partnerships with the private sector, and the agency’s relationship with communities of faith.” (Primorac 2025) There is no mention of democracy as an American value, nor as a strategic interest.   This is the primary lesson to be drawn for the future of Asian democracy under the second Trump admіnistration. Again, with caveat that prediction remains especially difficult in these times, a second Trump admіnistration bodes ill for democracy in Asia because it reveals the fragility and contingency of the United States’ commitment to democracy and the rule of law. As Hal Brands wrote in 2017, Trump “has argued that America lacks the competence to promote democracy abroad, and framed values-based priorities as distractions from the real business of advancing U.S. security and prosperity” (Brands 2017). In 2025, he will be bolstered by an admіnistration that is better able to implement his vision. Even if President Trump is correct that the U.S. is bad a democracy promotion, the symbolic value of the U.S. as a champion of global democracy is substantial, and the U.S. has a history of providing financial, organizational, and educational values support for democrats in Asia and around the world. Defenders of Asian democracy will be losing a major global supporter when President Trump returns to office. In these troubled times, it will fall to them to preserve the shared democratic values that transcend partisanship and national security in the world’s most important region.   Conclusion   Looking ahead, democracy in Asia is likely to face a difficult four years. President Trump is no ally of global democracy but concerns that his next admіnistration will seek to actively undermine democracy around the world are probably overblown. The Asia policy under the first Trump admіnistration was characteristically transactional in nature, marked by indifference to the domestic political conditions throughout the region. His next admіnistration promises more of the same, but with a more explicit commitment to President Trump’s vision of American national interests, which do not include democracy in Asia. This should serve as a sobering reminder to Asia’s democrats of the mercurial nature of U.S. foreign policy and the necessity of careful planning to fight for democracy and the rule of law within the region. ■   References   Brands, Hal. 2017. “The Unexceptional Superpower: American Grand Strategy in the Age of Trump.” Survival 59, 6: 7-40. https://www.tandfonline.com/doi/pdf/10.1080/00396338.2017.1399722 (Accessed January 16, 2025)   Cabinet Secretariat of the Republic of Indonesia. 2021. “Indonesia Has Enormous Potential to Become Global Maritime Axis, President Jokowi Says.” September 23. https://setkab.go.id/en/indonesia-has-enormous-potential-to-become-global-maritime-axis-president-jokowi-says/ (Accessed January 16, 2025)   Choe, Sang-Hun, and Ephrat Livni. 2024. “Who Is Yoon Suk Yeol, South Korea’s Leader?” The New York Times. December 3. https://www.nytimes.com/2024/12/03/world/asia/yoon-suk-yeol-south-korea-president.html (Accessed January 16, 2025)   Marshall, Josh. 2025. “Greenland, Panama, Canada … None of that is Going to Happen.” Talking Points Memo. January 9. https://talkingpointsmemo.com/edblog/greenland-panama-canada-none-of-that-is-going-to-happen (Accessed January 16, 2025)   Primorac, Max. 2023. “Agency for International Development.” In Mandate for Leadership: The Conservative Promise, eds. Paul Dans and Steven Groves. Washington D.C.: The Heritage Foundation. https://static.project2025.org/2025_MandateForLeadership_CHAPTER-09.pdf (Accessed January 16, 2025)     ■ Thomas B. Pepinsky is the Walter F. LaFeber Professor of Government and Public Policy at Cornell University and a Nonresident Senior Fellow in the Foreign Policy Program at the Brookings Institution.     ■ Edited by Hansu Park, Research Associate     For inquiries: 02 2277 1683 (ext. 204) | [email protected]  

On December 3, 2024, South Korean President Yoon Suk Yeol declared martial law, temporarily suspending the operation of constitutional democracy in the country. Even though the National Assembly passed a resolution urging the repeal of martial law a few hours later and Yoon agreed to lift the declaration, the activation of presidential emergency powers has produced devastating political upheavals that have persisted for a month. Despite the National Assembly’s adoption of motions to impeach the incumbent president on December 14 and the acting president two weeks later, the ongoing crisis in South Korea and its democratic backsliding are likely to end up with political chaos or even a civil-war-like situation. In contrast to those who perceive the nation’s democratic resilience in the juncture, South Korea’s constitutional democracy is experiencing significant challenges.[1]   Yoon’s Autogolpe and Public Reactions   For starters, Yoon is currently the subject of an investigation by the public prosecutors on the grounds of alleged orchestration of an attempted insurrection, a crime that carries with it a sentence of life imprisonment or even the death penalty. Notably, the South Korean president has immunity from most criminal charges except for insurrection or treason. Consequently, the prospect of the incumbent president being charged with criminal offenses would be a historic first in the country. While the constitution of South Korea grants the president the authority to employ the military to maintain order in ‘war, armed conflict or similar national emergency,’ it also confers upon the National Assembly the power to lift martial law by a majority vote. The police, public prosecutors, and other agencies suspect that Yoon imposed martial law in a situation that did not meet the constitutional standard of a severe crisis. Moreover, they accuse Yoon of insurrection due to the deployment of troops to seal the National Assembly, which amounted to this crime. According to scholars of authoritarian politics, there is little doubt that Yoon’s brief imposition of martial law was an example of what political scientists call an ‘autogolpe,’ or a ‘self-coup’ (Chin and Wright 2024).   In his December 12 address to the public, Yoon denied all the accusations of treason, asserting that the president’s decision to declare martial law is an act of governance that is not subject to judicial review. Furthermore, he attributed the blame to the Democratic Party of Korea (DPK), the main opposition party, suggesting that the DPK had compelled him to declare martial law by labeling it as treason. He also expressed frustration with the DPK, claiming that “the opposition party is doing a madness sword dance, calling emergency declaration of martial law treason … which force is paralyzing state affairs and subverting the national constitution in South Korea?” Furthermore, he reiterated unfounded conspiracy theories propagated by far-right extremists, asserting that “anti-state and pro-North Korea forces” have manipulated the results of the National Assembly elections held in April 2024. Concluding the address, he argued that the attempt was a legal decision to prevent the ‘collapse of democracy’ and counter the opposition’s alleged pursuit of a ‘parliamentary dictatorship.’ He further asserted, “I will fight to the end.”   According to the public opinion survey released following day, 71 percent of citizens agreed to the assessment that Yoon’s declaration of martial law was an attempted insurrection, and 75 percent expressed support for the impeachment of Yoon (Gallup Korea 2024). This public opinion has remained relatively stable subsequent to the observation of the debacles of martial law and the following impeachment of Yoon by lawmakers. According to a survey conducted by the Dong-A Ilbo on December 28-29, 67 percent of surveyed Koreans answered that insurrection crime charge should be applied to the previous martial law, and 70 percent expressed their belief that the Constitutional Court should uphold the impeachment of Yoon by lawmakers (Kim 2025). The gap between Yoon’s address and the citizens’ evaluation clearly reveals one of the perils inherent in presidential democracies: the potential for a president’s actions, driven by a misguided perception of the world decoupled from that of the average citizen, to adversely impact democratic institutions and processes for personal, partisan, or other interest.   Profound Damage to Democratic Achievement of South Korea   It is ironic that South Korean citizens had elected and been governed by an illiberal president, since President Yoon has vowed to strengthen liberal democracy of the country. A recent study on the illiberal winds in liberal democracies has attributed this trend to partisan polarization, extremism, populism, or executive aggrandizement. The convergence of these factors has resulted in the election of a less qualified political leader. Drezner once described President Trump as a ‘toddler-in-chief’ with ‘temper tantrums, short attention span, poor impulse control, oppositional behavior, knowledge deficits, and too much screen time,’ and how he had transformed the most powerful office in the country into a political day care facility.[2] President Yoon has been also characterized by similar leadership style.   In the context of a sharply divided political environment, South Korea’s political institutions have lost one of its most significant epistemic capacities: the ability to avoid adverse selection when citizens delegate their authority to the president, thereby easily transforming its democracy into a kakistocracy, a government led by the worst, least qualified, or most unscrupulous citizens.[3]   A case in point is the recent impeachment of President Yoon. The National Assembly voted to impeach Yoon in its second attempt, garnering more than two-thirds of the required support a week later, following the initial attempt’s failure due to a boycott by his governing People Power Party (PPP). Over the past twenty-five years, this marks the third instance in which the National Assembly has submitted a presidential impeachment resolution to the Constitutional Court, which has up to 180 days to determine its acceptance or rejection.   The previous impeachment of then-President Park Geun-hye garnered the support of 234 members of the 300-member National Assembly. The results indicated that 62 of the 128 lawmakers from Park’s Saenuri Party, the current PPP, voted in favor of her impeachment. In the case of Yoon’s impeachment, only 12 of the 108 PPP lawmakers voted for Yoon’s impeachment. The PPP had a traumatic experience of party breakup when the group supporting Park’s impeachment formed a new party. Accordingly, the PPP sought an alternative solution that could not be plausible under the opposition party-controlled National Assembly. Han Dong-hoon, the PPP’s leader, who urged to repeal martial law immediately and later agreed to impeach Yoon, was forced to resign by a majority of the party. The PPP subsequently appointed five-term lawmaker Kwon Yong-se as the head of its emergency, entrusted with the management of the ensuing political ramifications. Notably, Kwon’s stance on the repeal of martial law and the impeachment initiative stood in contrast to those of Han Dong-hoon, underscoring the internal divisions with the PPP. Like Yoon, the serious cognitive dissonance of PPP legislators has to be deleterious to democracy.   This remarkable shift in the majority of PPP legislators, who have chosen to support Yoon rather than abandon him, is primarily driven by their partisan interest in delaying a presidential election following the Court’s affirmation of the impeachment. DPK leader Lee Jae-myung is currently facing multiple criminal charges, and the court has found him guilty of violating the public official election act. Lee is awaiting a higher court ruling, expected in late spring. This partisan preoccupation has led to the neglect of crucial efforts to restore the democratic process at this critical juncture. As Levitsky and Ziblatt contend in Tyranny of the Minority, to be considered loyal democrats, politicians “must respect the outcome of free and fair elections, win or lose.” Secondly, politicians “who support military coups, organize putsches, incite insurrections, plot bombings, assassinations, and other terrorist acts, or deploy militias or thugs to beat up opponents or intimidate voters are not democrats.” Thirdly, politicians “must always break with antidemocratic forces.” The guidance concludes with the warning: “Their response eventually played a subtle but decisive role in killing democracy itself” (Levitsky and Ziblatt 2023).   Opposition’s Constitutional Hardball Game   Last but not the least, the DPK passed a motion to impeach the Acting President Han Duck-soo less than two weeks after the National Assembly’s vote to impeach Yoon. As Han deferred the appointment of three Constitutional Court justices who had been recommended by the National Assembly, the DPK acted on its prior warnings to pursue impeachment. Han becomes the first Acting President to be impeached in the country.[4] During the Yoon’s tenure from 2023 to 2024, the DPK pursued impeachment proceedings against public officials 29 times, which is more than the 21 times recorded from 1985 to 2022. The DPK’s legislative strategies can be characterized as ‘constitutional hardball,’ defined as “a form of institutional combat aimed at permanently defeating one’s partisan rivals, regardless of the impact on democratic processes.” Another warning on constitutional hardball tactics comes as following: “an unstrained Congress can block the president’s every move, threaten to throw the country into chaos by refusing to fund the government, or vote to remove the president on dubious grounds” (Levitsky and Ziblatt 2018).   The constitutional hardball game that the DPK has played during this constitutional crisis exemplifies the party’s transformation into a populist partisan organization, driven by extremist supporters. The DPK’s threat to use serial constitutional hardball tactics to remove Acting-Acting President was only halted after the tragic incident of a plane crash at Muan International Airport in South Korea, which claimed the lives of 179 out of 181 passengers and crew. In other words, only a national disaster of unprecedented scale could stop fierce partisan bickering between DPK and PPP even under constitutional crisis. The complete dysfunction of South Korea’s institutions responsible for monitoring and restraining executive public officials, including political parties and legislative organizations, is evident. In short, South Korea’s political institutions have lost one of their most important epistemic capacities to avoid the moral hazard of political agents, which could easily transform its democracy into a vetocracy, or a government whereby no single entity can acquire enough power to make decisions and take effective charge.[5]   Conclusion   South Koreans have been proud of their democratic achievements. Furthermore, all reports ranking global democracy used to put the country to a high-level liberal democracy. Currently, however, South Koreans are compelled to engage in painful reflections on their loopholes of their democratic institutions and their own electoral choices.   In the near term, the viability of South Korea’s constitutional democracy is likely to be uncertain due to the aftershocks of Yoon’s autogolpe. Despite the citizens’ ability to navigate their constitutional crisis, the prevailing democratic fragility in the country is likely to persist. South Korea’s constitutional democracy would regain its strength only after it survives from severe wounds by a thousand cuts. ■   References   Cha, Victor. 2024. “South Korea’s Crisis is Nowhere Near Over,” The Atlantic. December 20. https://www.theatlantic.com/international/archive/2024/12/south-korea-yoon-impeachment/681119/ (accessed December 31, 2024)   Chin, John Joseph, and Joe Wright. 2024. “What is a Self-coup? South Korea President’s Attempt Ended in Failure – A Notable Exception in a Growing Global Trend.” The Conversation. December 5. https://theconversation.com/what-is-a-self-coup-south-korea-presidents-attempt-ended-in-failure-a-notable-exception-in-a-growing-global-trend-235738 (accessed December 31, 2024)   Drezner, Daniel W. 2020. The Toddler in Chief: What Donald Trump Teaches Us about the Modern Presidency. Chicago: Chicago University Press.   Gallup Korea. 2024. “Daily Opinion no. 606” (in Korean). December 13. https://www.gallup.co.kr/gallupdb/reportContent.asp?seqNo=1525 (accessed December 31, 2024)   Goel, Rachit. 2024. “Resilient Democracy: How South Korea’s Institutions Rejected Authoritarian Overreach,” The Diplomat. December 7. https://thediplomat.com/2024/12/resilient-democracy-how-south-koreas-institutions-rejected-authoritarian-overreach/ (accessed December 31, 2024)   Kim, Joon-il. 2025. “Dong-A Ilbo New Year Poll” (in Korean). Dong-A Ilbo. January 1. https://www.donga.com/news/Politics/article/all/20250101/130765478/2 (accessed January 1, 2025)   Klein, Ezra. 2016. “Francis Fukuyama: America is in ‘One of the Most Severe Political Crises I Have Experienced.” Vox. October 27. https://www.vox.com/2016/10/26/13352946/francis-fukuyama-ezra-klein (accessed December 31, 2024)   Krugman, Paul. 2024.“My Last Column: Finding Hope in an Age of Resentment.” New York Times. December 9. https://www.nytimes.com/2024/12/09/opinion/elites-euro-social-media.html (accessed December 31, 2024).   Levitsky, Steven, and Daniel Ziblatt. 2018. How Democracy Die. New York: Crown. p. 109.   ______. 2023. Tyranny of the Minority. New York: Crown. pp. 40-41.     [1] For the optimistic view on the state of democracy in South Korea, see Goel (2024). For the pessimistic view, see Cha (2024).   [2] For the deleterious impact of having a person ill-suited to the presidency on democracy, see Drezner (2020).   [3] For the meaning of the kakistocracy, see Krugman (2024).   [4] On December 31, 2024, the new acting President Choi Sang-mok appointed two out of three vacant Constitutional Court justices so that a ruling on Yoon’s impeachment will proceed without any procedural controversies.   [5] For the meaning of the vetocracy, see Klein (2016).     ■ Jung Kim is an Associate Professor of Political Science at University of North Korean Studies (UNKS).     ■ Edited by Hansu Park, Research Associate     For inquiries: 02 2277 1683 (ext. 204) | [email protected]  

The United Nations (UN) Cybercrime Convention, if it becomes effective, will be a multilateral treaty whereby State parties obligate themselves to (1) criminalize not just certain cyber-attack-like conduct but also certain cyber-enabled conduct under their respective domestic laws (i.e., regulate them as “cybercrimes”); (2) collect, record, seize, and force others to preserve electronic data in the investigation of any and all crimes in various methods that the State parties were previously not obligated to implement under any international law; and (3) share the thus acquired data with one another to facilitate the investigations of the cybercrimes or “serious crimes”. As one of the few norms compelling governments worldwide to strengthen their restrictions on individuals’ conduct and their ability to spy on their subjects, human rights concerns abound. This new international treaty poses perils to free expression and privacy. Some of the conduct required to be criminalized may include legitimate speeches; State surveillance is now made an international obligation without a clear obligation to safeguard privacy; and the inter-State sharing of data will not only double or triple the magnitude of privacy infringements, but it will also bypass existing privacy safeguards such as the warrant requirement of proper constitutional quality. Accordingly, this new treaty requires serious amendments if it is to be ratified in the future.   Risk to Free Expression: “What Is Criminalized Offline Should Be Criminalized Online Also?”[1]   First of all, any mandate to criminalize certain cyber conduct will inevitably impinge upon freedom of speech. This is because “cyber conduct,” by definition, involves transmission and reception of messages, which constitute speech. Cybercrime treaties are the product of realizations that as people’s lives depend profoundly on the internet, some types of speech or cyber activities can become unilaterally harmful, and therefore need international cooperation in preventing through process of law. Therefore, the draft Convention, like its predecessor Budapest Convention, obligates the State parties to restrict certain forms of expression or cyber conduct by obligating them to criminalize them. Then, in doing so, it is important not to cross the lines between those unilaterally harmful speeches like cyberattacks and ordinary speeches protected by human rights.   The current list of these mandatory crimes seems innocuous on the surface. The first seven offenses are cyber-attack type activities lifted from the Budapest Convention. These include unauthorized access, unauthorized interception, data interference, systеm interference, misuse of devices, computer-related forgery, and computer-related fraud. Others are ‘cyber-enabled’ crimes: Child pornography related offenses are also lifted from the Budapest Convention and the three new ones of solicitation or grooming of minors, dissemination of non-consensual intimate images, and money laundering do not seem controversial.   However, the definition of “fraud” in Article 13 has been expanded in a manner that allows it to be abused to create and enforce the “false news” crimes. These have been used as pretexts for authoritarian governments to suppress dissident journalists and human rights defenders. It requires criminalizing “the causing of a loss property to another person by means of … any deception as to factual circumstances made using [a computer systеm] [an information and communications technology device] that causes a person to do or omit to do anything which that person would not otherwise do or omit to do”. The notions of ‘deception’ and ‘omission to do anything’ are extremely vague and could potentially be used to criminalize and prosecute legitimate activities. The requirement of a loss of property to another person can be satisfied if anyone suffers from financial harm. For instance, a human rights defender who initiates an online consumer boycott of a company that supports a military dictatorship could be easily prosecuted under this crime if the law enforcement can identify minor factual inaccuracies in the boycott literature.   Additionally, the concept of “interference with an information and communication technology systеm” under Article 10 of the draft Convention, inherited from the Budapest Convention, has the potential to impede the utilization of technology by human rights defenders. For example, in South Korea, a political activist was arrested and indicted for commenting and liking en masse in an apparent campaign to support certain political views by exaggerating popular support for them (Park 2019). What set him apart from other political activists was that he used other peoples’ cyber identities though not without consent and automated the generation of comments and likes through software. He was charged with the decades-old crime under the domestic law of “interference with business by means of illegitimate use of information and communication networks,” which has been the main provision used for punishing cyber hacking. However, the right to anonymous communication, as affirmed by the 2012 Korean Constitutional Court’s decision on the Internet Real Name Law and the 1995 US Supreme Court case Terry v. Ohio, allows people to assume fictitious or pseudonymous identities. To be sure, the real owners of the identities have not complained of any injury or lack of consent. The fact that he used automation should not be the basis of illegitimacy Automating the exercise of freedom of speech should not be considered a crime, though it may be regarded as impolite and raucous, similar to the use of amplifiers in a classroom. If such actions are deemed criminal, then the creation of a website would also be considered a crime. Such automated commenting is different from hacking which does undermine the ordinary functioning of the network.   Extrapolating from the above example, we can see how the Convention’s definition of cyber hacking can be broadened to suppress legitimate political activities that rely on digital technology. The mandate to criminalize it in the draft Convention, just as the Budapest Convention, should be accompanied with some safeguards against becoming a tool for suppressing democracy.   Furthermore, as the original purpose of the cybercrime treaties was to protect the integrity of information and communication systеm, it is paradoxical that neither the Budapest Convention nor the new draft Convention mandates exceptions to legitimate security researchers (i.e., white hat hackers). The draft Convention makes only passing remarks to the contributions of these researchers in the section discussion “Preventive Measures” against further cybercrimes, acknowledging their significant role in enhancing systеm integrity.   What is even more problematic is that Article 4 of the draft Convention requires the State parties to extend their existing criminal laws, established under international treaties, to the online counterparts. It seems to suggest a principle of equivalence, whereby “what is criminalized offline should be criminalized online also”. For instance, a law criminalizing threats of physical violence may be applied to a dissident activist who uses aggressive language against the rulers of his country through an online posting (Freedom Online Coalition Advisory Network 2024). The draft Convention attempts to address this concern with Article 6 which requires ‘consistency’ with international human rights law and barring any interpretation “as permitting suppression of human rights or fundamental freedoms, including … freedoms of expression, conscience, opinion, religion or belief, peaceful assembly and association.” It remains to be seen whether this vague reference is sufficient. Although the majority of European governments appear satisfied (The Netherlands’ Ministry of Foreign Affairs 2024), it is not surprising that the incumbents will agree to give themselves more power over (and more data about! – see next sections) their subjects than the people to be restricted and surveilled would like to allow.   Surveillance Now Made an International Law Obligation: The Dangers of a Surveillance Treaty in Absence of a Privacy Treaty   Secondly, the State parties, previously not obligated to conduct surveillance, will now be required to conduct surveillance as a matter of duty under this new international law. The six mandatory surveillance measures are as follows: expedited preservation of stored electronic data, expedited preservation and partial disclosure of traffic data (as part of preserved stored electronic data), production order, search and seizure of stored electronic data, real-time collection of traffic data, and interception of content data (heretofore, the same as the Budapest Convention).[2] For instance, no state was previously obliged to enact legislation authorizing the interception of content data, a requirement now enshrined in the Convention. Such duty arises not just with cyber-attack crimes or ‘cyber enabled’ crimes but in all crimes. What is jarring, there is currently no international treaty protecting privacy other than the International Covenant on Civil and Political Rights (ICCPR), and its Article 17 on privacy is very brief and has not been fully operationalized in restraining the world governments’ appetite for surveillance on their own citizens or others’ citizens for that matter. In contrast, ICCPR’s Article 19 on freedom of expression on which the United Nations Human Rights Committee, the body charged with monitoring ICCPR State Parties’ compliance, has issued a general comment (General Comment 34) in 2011, relatively recently, after absorbing the lessons of the digital age since the arrival of the internet in the early 1990s. The UN General Assembly has also appointed and benefited from the services of the Special Rapporteur on Freedom of Opinion and Expression, who has upgraded and concretized the free speech norms for decades through their thematic and state visit reports. The specific rules on defamation, internet shutdowns, net neutrality, broadcasting, intermediary liability exemption, were promulgated for the specific application in various free speech disputes around the world.   However, there has been comparatively little action on the issue of privacy. Data protection laws have become popular and spread to an ever-growing number of countries, some of them have created arguably the only international treaty on privacy, namely Convention 108/108+. However, domestic and international data protection norms typically include significant exceptions for government agency functions such as surveillance and statute-authorized data processing, which renders them ineffective for regulating data collection by governments for criminal investigation purposes. The proponents of the draft Convention appear to be unaware of the implications of a treaty that encourages, if not requires, global governments to restrict people’s privacy in the absence of a countervailing treaty that protects and promotes it.   All of this across-the-board erosion of privacy may be justifiable if the cybercrime treaty is limited to serious crimes of some universal import. Unfortunately, however, both in the Budapest Convention and the new draft Convention, the mandate for the surveillance measures applies to all crimes. The ‘serious crimes’ limitation applies only to international sharing of data, to be discussed later. Although these mandatory surveillance measures are to be moderated by the existing domestic laws (such as constitutional law protecting the rights of the surveilled) under Article 24 paragraph 1, there is no guarantee that these domestic laws operate in the direction promoting privacy. While the Budapest Convention explicitly references the ICCPR and other human rights treaties that these domestic laws must align with, the draft Convention merely mentions “international human rights law.”   Fortunately, Article 24, paragraph 2 does (as the Budapest Convention’s comparable provision does) includes “judicial or other independent review, the right to an effective remedy, grounds justifying application, and limitation of the scope and duration of such power or procedure,” which corresponds to judicial warrants in many democracies. One may have hoped that many countries where surveillance has been conducted without judicial approval may be now obligated to implement judicial approval requirements for future surveillance. However, Article 24, paragraph 2 snuffs that hope out by introducing a limitation: “[i]n accordance with and pursuant to the domestic law of each State Party.”[3] Of course, the domestic law is supposed to “provide for the protection of human rights in accordance with its obligations under international human rights law” under paragraph 1 but as we discussed before, it suffers from lack of specificity. In the absence of a specific treaty that requires judicial approval for surveillance, the provisions of Article 24 paragraph 2 are rendered ineffectual.   That these surveillance measures, though already admіnistered by many governments voluntarily, become an obligation under international law is concerning when the risk of moral hazard among the incumbent governments quick to agree to give themselves more data has not been hedged by a countervailing treaty protecting privacy.   Surveillance Doubled-up and Unvetted: We Should Have a Right to Have Warrants to Search Us Reviewed by Judges Obligated to Respect Our Privacy   Thirdly, the sharing of the fruits of surveillance among the State parties naturally derogates from privacy of the person surveilled. If one law enforcement agency conducts a search and seizure of an individual and shares the resulting information with another law enforcement agency, it is tantamount to two distinct agencies conducting their respective surveillance activities upon that individual. Such a doubling-up of restriction on privacy can occur in the same way when the nationalities of the two law enforcement agencies are different, as in a typical scenario contemplated by the draft Convention.   International human rights law and constitutional criminal procedure focus on the point where private data crosses the boundary between a person’s private domain and the law enforcement but not so much on what happens to the data afterwards. Data protection law has the potential of regulating the use or transfer of data obtained as a result of surveillance activities. However, this can be circumvented by any statute that authorizes such sharing, as most data protection norms make exceptions to statutory mandates or use for public agency functions. Now the draft Convention requires the sharing of acquired data among the State parties.   Such data sharing not only quantitatively erodes the privacy interest of the surveilled, since more than one State parties will now have access to the data, but suffers from an important defect of constitutional quality: the acquisition of the data by the receiving State party is not vetted by anyone for the balance between the need for such surveillance and the privacy of the individual subject to it. This implies that the receiving State party may be obtaining the information for reasons that do not justify the privacy restriction that the surveilled individual has suffered. A more diabolical scenario is when a dissident journalist living in State A is searched and seized on his mail server located in State B, by the latter’s law enforcement for, for example, copyright infringement, and State B shares the results of search and seizure with State A, which then may use the information for investigation of his political crime at home. In this scenario, there was no neutral magistrate who weighs and justifies the privacy violation against the necessity and proportionality of the criminal investigation by State A. State B’s judge, with absolutely no constitutional duty to respect the privacy of the journalist living in State A, will have only weighed the privacy of the mail server operator against State B’s need to investigate the copyright infringement. The end result is that the journalist’s privacy will have been restricted without proper safeguards. Article 24’s calls for “judicial independent review” as a safeguard for human rights becomes an empty cry.   The Budapest Convention dilutes such risk by allowing the State parties to refuse data transfer if the requesting State parties are requiring it for investigation of “political offence”. There is no such limitation in the draft Convention. The only limitation is that it be one of the cybercrimes defined in the draft Convention or “serious crimes (crimes carrying more than 4 years in imprisonment).” This means that, if a State party that punishes homosexuality or political dissent by imprisonment of 4 years makes a data request, the responding State is under a duty to cooperate under the draft Convention. Dual criminality (i.e., the requirement that the crime for which the data request is made must be also a crime in the responding state), if it were a mandatory condition for such data sharing, would have diluted the aforesaid privacy harm but it was made optional. The proponents of the draft Convention are arguing that the State parties are free to reject data request on the dual criminality ground or for other reasons. However, such answer may be valid from a perspective of national sovereignty but turns a blind eye to the fact that the sharing of the data itself erodes and hurts the privacy of the person surveilled as demonstrated above, as such refusal is within the discretion of the responding State party. Remember that the person on whom the data sharing takes place has never been included in what might turn out to be a cartelization among incumbent governments seeking more data! ■   References   Freedom Online Coalition Advisory Network. 2024. “Proactive Advice: UN Convention Against Cybercrime.” September 16. https://freedomonlinecoalition.com/foc-advisory-network-proactive-advice-un-convention-against-cybercrime/?hilite=UN+Convention+Against+Cybercrime (Accessed December 16, 2024)   Park, Kyung-sin. 2019. “Politics and Internet is an Inevitably Explosive Mix: the case of online opinion rigging.” Open Net. April 13. http://old.opennetkorea.org/en/wp/2540 (Accessed December 16, 2024)   The Netherlands’ Ministry of Foreign Affairs. 2024. “Freedom Online Coalition Chair’s Response to the FOC-AN’s Proactive Advice on the UN Cybercrime Treaty.”     [1] This famous line is a play on the words of the oft-repeated resolutions of the United National Human Rights Council since 2012. The original reads: “What is protected offline should be protected online also.”   [2] There are other mandatory measures newly added to the Convention such as confiscation of crime proceeds, witness protection, and victims’ assistance, which I will not discuss here.   [3] Article 24. Conditions and safeguards 1. Each State Party shall ensure that the establishment, implementation and application of the powers and procedures provided for in this chapter are subject to conditions and safeguards provided for under its domestic law, which shall provide for the protection of human rights, in accordance with its obligations under international human rights law, and which shall incorporate the principle of proportionality. 2. In accordance with and pursuant to the domestic law of each State Party, such conditions and safeguards shall, as appropriate in view of the nature of the procedure or power concerned, include, inter alia, judicial or other independent review, the right to an effective remedy, grounds justifying application, and limitation of the scope and the duration of such power or procedure. (emphasis added)     ■ Kyung Sin Park is a Professor of Korea University Law School and Director of Open Net.     ■ Edited by Hansu Park, Research Associate     For inquiries: 02 2277 1683 (ext. 204) | [email protected]  

South Korea’s Vulnerability to Deepfake Sex Crimes   In October 2024, a South Korean court handed down a ten-year prison sentence to the perpetrator of a deepfake sex crime. The ringleader, a 40-year-old alumnus of Seoul National University, created and distributed 1,852 deepfake photos and videos of female students and others. The crime group set up more than 200 chat rooms on Telegram and continued the offenses for four years. They did not profit from the illicit pornography but instead perpetrated the crimes to fulfill their sexual desires (Kim 2024a). Media reports characterized the crime as a consequence of ordinary students failing to pass examinations, secure employment, or get married and developing a warped sexual perception that transformed them into sex offenders. The court also noted that “the perpetrators expressed their inferiority complexes and hatred of socially successful women in a perverted manner and with anonymity.” This case, which follows the so-called “Nth Room” case of 2019, which involved the organized distribution of sexual abuse materials via Telegram chat rooms, demonstrates how digital sex crimes are evolving in conjunction with new technologies such as deepfakes.   Deepfake sex crimes are also infiltrating schools. From January to September 2024, 434 reports of sexual abuse materials were received from schools, with the Ministry of Education referring 350 of them for investigation (Ministry of Education 2024-09-09). Of the 474 individuals apprehended for deepfake sex crimes between January and October 2024, 381 were adolescents (Lee 2024a), which indicates that minors are not only particularly susceptible to deepfake sex crimes but also that the majority of alleged perpetrators are minors.   The rapid advances in artificial intelligence (AI) technology have accompanied the worldwide proliferation of deepfake sexual abuse materials. A report by a U.S. cybersecurity firm revealed a significant increase in the number of deepfake pornography from 3,725 in 2022 to 21,019 in 2023. Notably, 99 percent of these videos targeted women. The report also revealed that approximately 53 percent of individuals depicted in deepfake pornography are South Korean, with eight out of 10 of the most frequently featured individuals being South Korean singers (Security Hero 2024). It should be noted that the nationality of the victim and the perpetrator may differ. Nevertheless, these findings illustrate the vulnerability of South Korea's highly digitalized society to deepfake sex crimes and the imperative for legal and social responses.   Digital sex crime is regarded as a grave infringement of women's fundamental human rights. The victims have reportedly experienced not only psychological harm but also physical deterioration with accompanying symptoms (Women’s Human Rights Institute of Korea 2023). Moreover, digital sex crimes can also result in considerable social costs, such as the discouragement of women's social and work-related activities. Targeting female journalists who have reported instances of deepfake sex crimes in the Telegram chat room represents a threat to both their personal rights and freedom of the press.   Legislative Response to the Rising Deepfake Sex Crimes   The repeated and pervasive victimization typifies digital sex crime through the reproduction and dissemination of material. Its occurrence in cyberspace across borders makes it challenging to detect and recover from the damage fully. Moreover, it may take time for victims to recognize the crime, if they recognize it at all. In response to the nature of these crimes, some advanced democracies have implemented the following measures.   In the United States, legislation is underway to criminalize deepfake sex crimes at the federal level. The “DEFIANCE Act,” which regulates non-consensual digital forgeries, was passed by the Senate in July 2024 and is currently under consideration by the House of Representatives. The bill would permit plaintiffs to seek redress through civil litigation for deepfake sexual abuse. It would also empower courts to impose punitive damages or order the removal and destruction of material. Furthermore, the legislation provides measures to safeguard the privacy of victims, such as authorizing plaintiffs to use pseudonyms. In addition, the “DEEPFAKES Accountability Act” was introduced in the House of Representatives in September 2023. This act would impose a fine or imprisonment for the creation and distribution of deepfake sexual abuse materials with the intent to humiliate or harass a person. Several states, including California, Texas, and New York, have already enacted laws that allow for civil lawsuits and criminal penalties for deepfake sexual offenses.   In May 2024, the European Council approved the Artificial Intelligence Act, classifying AI into four risk levels. Deepfakes are classified as “limited risk,” falling under level 2. While the Act's principal objective is to regulate and prohibit higher levels, it also addresses level 2. For example, Article 50 imposes a transparency obligation on AI systеms, requiring them to disclose that they have generated results with deepfakes. Furthermore, the Digital Services Act delineates the obligations of major online platforms and search engines. It also entails ensuring that deepfakes are labeled upon publication and conducting at least an annual assessment of the risk of gender-based violence, with the implementation of appropriate countermeasures.   The United Kingdom and Australia have also enacted legislation that criminalizes the dissemination or threatened dissemination of intimate images or videos of others, including deepfakes, without their consent. Additionally, online platforms and search engines are obliged to implement reporting and response systеms to mitigate the risk of illegal information. The Canadian government is investing in technological research and development to prevent the creation and distribution of deepfakes (Lawson 2023). In addition to criminalizing the production and distribution of deepfake pornography, these countries are also taking active anti-crime measures against the online platforms that facilitate such activities. In South Korea, along with enhanced penalties, proactive measures are necessary to eradicate the dissemination of deepfake sexual abuse material.   In the case of South Korea, the country’s stakeholders have advocated for legislation that would provide clear definitions and penalties for deepfake offenses. The Act on the Punishment of Sexual Crimes, amended in March 2020, stipulates that any individual who produces or distributes deepfakes with the intention of distribution shall be punished. Concurrently, revised laws regulating internet communications require internet service providers to implement measures to prevent the dissemination of illicit video content. However, it has been observed that the penalties are not sufficiently stringent. In the four years since the law was enacted, 39% of those accused were sentenced to probation. The majority of cases in which prison sentences were handed down were compounded by the addition of other charges than a deepfake offense itself (Kim 2024b). In this context, the recent 10-year prison sentence handed down to the ringleader of the deepfake case at Seoul National University was regarded as a significant penalty, given that the judiciary unusually accepted all sentences requested by the prosecution.   As the deepfake pornography incidents raise a public outcry, the legislature has responded with stronger punishment. In October 2024, the Act on the Punishment of Sexual Crimes was revised to criminalize the production of deepfake pornography, even in the absence of an intent to distribute, and it also increased the maximum prison term for production and distribution. The new legislation also criminalizes the possession, purchase, storage, and viewing of deepfake pornography. In addition, the state became responsible for facilitating the removal of illicit material and aiding victims. Subsequently, legislation was passed to permit investigative agencies to conduct covert investigations into digital sex crimes.   Some politicians have argued that media reports are exaggerating the threat of deepfake sex crimes and have expressed concern about excessive regulation. They pointed out that it is an overstatement to conclude that 220,000 subscribers to a Telegram channel with a bot that synthesizes deepfake pornography represent the same number of deepfake sextortion perpetrators in Korea. In light of the difficulty in determining the nationality of Telegram users, this remark has a point. Still, given the capacity of a relatively small number of individuals to generate substantial quantities of deepfake pornography in a short period using AI, the low number of perpetrators does not necessarily indicate a correspondingly low level of severity of deepfake sextortion.   Structural Background of Deepfake Sex Crimes in South Korea   In order to identify solutions to the recurring deepfake sex crimes, it is essential to gain a comprehensive understanding of the underlying structural context. Firstly, there have been attempts to find a link to the anxiety experienced by the younger generation in recent years. Young males, in particular, are experiencing increased competition, an unemployment crisis, and a housing shortage; however, the remnants of patriarchal culture still place more responsibility on men, which leads to a perception gap (Lee 2024b). This discrepancy is further exacerbated by the perception that there are no structural gender inequalities among the younger generation. For them, South Korea’s low gender equality and female participation in politics and senior corporate positions (World Economic Forum 2024) are perceived as a legacy of the past. These attempts conclude that the anxiety and dissatisfaction stemming from the discrepancy between economic reality and social perception give rise to anti-women sentiments and sexual crimes as manifestations of this hatred. This interpretation aligns with the growing gender conflict in South Korean society, particularly among the younger generation. However, given that the majority of individuals arrested for deepfake sex crimes are teenagers, it is difficult to attribute this phenomenon solely to male perception.   Experts of sex education and counseling for youth have observed that deepfakes have already become a form of entertainment among teenagers, positing that these individuals tend to view deepfake sex crimes as a means of gaining peer approval (Mackenzie and Choi 2024). However, the perception of deepfakes as a form of play does not necessarily indicate a lack of awareness of their seriousness. In a survey on cyberbullying asking the reasons behind the continued prevalence of digital sex crimes, the most frequently cited reasons by adolescents were “weak punishment” (26.1%) and “not worrying about being caught because of the anonymity of the internet” (22.3%). The primary reasons cited by adults were “to make money” (31.5%) and “because of the weak punishment” (30.5%). The lowest response among adolescents and adults was “because it is not serious” (Korea Communications Commission 2023-04-07). Although the survey was designed to gauge public opinion and does not directly purport to represent the motivations of actual criminals, it does indicate a trend of people who are aware of the illegality of deepfake pornography but rely on the anonymity of the internet and loopholes in punishment to commit the crime.   Further Action Against Deepfake Sex Crimes   It is yet to be determined whether the revised legislation will prove an effective deterrent against deepfake sex crimes. There are calls for further legislative action, including the police authority’s prompt intervention for internet service providers to remove and block illicit materials, as these can continue to proliferate while the decision-making process is delayed. Furthermore, in alignment with the principles of advanced democracies, it is imperative to enhance the accountability of internet service providers to implement more proactive preventive measures, such as the prevention of the posting of sexual abuse materials and regular monitoring. Regarding the subject of punishment, it was proposed that those who instigate the creation of sexual abuse materials should be held accountable. Furthermore, it is asserted that comprehensive legislation is imperative to address emerging forms of violence as technology advances. It is necessary that lawmakers are adequately informed of the gravity of the situation and that any developed legislation is legally stable and unambiguous.   In a more comprehensive sense, it is required to reinforce the regulatory framework and the response to disinformation in its entirety. The proliferation of disinformation has led to a significant increase in threats to democratic processes. These threats have been observed in the form of fake videos of politicians and fake news from unknown sources, which have the potential to influence election outcomes and impede citizens' ability to make informed decisions. While law enforcement agencies should respond expeditiously to identify digital sex crimes, comprehensive measures against rapidly evolving new technologies are also required to encompass the full spectrum of disinformation and facilitate a unified response across government ministries and between government and the private sector.   In light of the pervasiveness of deepfake sex crimes among young people, public education should equip students with the ability to recognize the seriousness and harmfulness of these crimes and to respond promptly when they occur. The most effective education would be to demonstrate that those who perpetrate crimes will face increased investigations and penalties. Besides, further educational initiatives are necessary to inform the public about disinformation and cultivate a new digital literacy that enables individuals to determine the veracity of the information they encounter and to consume it in an informed manner.   In conjunction with the proliferation of deepfake sexual abuse materials, there is a growing call from civil society for a swift and decisive response. Korean democracy is now confronted with the challenge of curbing deepfake sex crimes through legislative and institutional measures for the sake of women’s human rights. ■   References   European Commission. 2024. “The Digital Services Act package.” https://digital-strategy.ec.europa.eu/en/policies/digital-services-act-package (Accessed December 5, 2024)   Future of Life Institute. 2024. “The EU Artificial Intelligence Act.” https://artificialintelligenceact.eu/ (Accessed December 5, 2024)   Kim, Dongwon. 2024a. “"My Nude Photos in a Group Chat?"… Growing Deepfake Crimes Leave the Public in Fear.” The AI. August 27. https://www.newstheai.com/news/articleView.html?idxno=6220 (Accessed December 5, 2024)   Kim, Jeonghwa. 2024b. “Analysis of all sentences since the Deepfake Sexual Abuse Act of 2020 – Probation at Nearly 40 Percent.” (in Korean) The Kyunghyang Shinmun. September 4. https://www.khan.co.kr/article/202409041031011 (Accessed December 5, 2024)   Korea Communications Commission. 2023. “Four out of 10 teenagers have experienced cyberbullying, one more person than last year.” April 7. https://www.kcc.go.kr/user.do?mode=view&page=E04010000&dc=E04010000&boardId=1058&cp=10&boardSeq=54874 (Accessed December 5, 2024)   Lawson, Amanda. 2023. “A Look at Global Deepfake Regulation Approaches.” Responsible Artificial Intelligence Institute. April 24. https://www.responsible.ai/a-look-at-global-deepfake-regulation-approaches/ (Accessed December 5, 2024)   Lee, Soo-Jung. 2024a. “Adolescents 80% of 474 suspects arrested for deepfake porn this year.” Korea JoongAng Daily. October 16. https://koreajoongangdaily.joins.com/news/2024-10-16/national/socialAffairs/Adolescents-80-of-474-suspects-arrested-for-deepfake-porn-this-year-/2156145 (Accessed December 5, 2024)   Lee, Soohyun Christine. 2024b. “Anti-Gender Politics, Economic Insecurity, and Right-Wing Populism: The Rise of Modern Sexism among Young Men in South Korea.” Social Politics: International Studies in Gender, State & Society. October 18. https://academic.oup.com/sp/advance-article/doi/10.1093/sp/jxae016/7826751 (Accessed December 5, 2024)   Mackenzie, Jean, and Leehyun Choi. 2024. “Inside the deepfake porn crisis engulfing Korean schools.” BBC News. September 3. https://www.bbc.com/news/articles/cpdlpj9zn9go (Accessed December 5, 2024)   Ministry of Education. 2024. “Second Survey Results of School Deepfake Sexual Crime Damage Situation Released.” (in Korean) https://www.moe.go.kr/boardCnts/viewRenew.do?boardID=294&boardSeq=100958&lev=0 (Accessed December 5, 2024)   Security Hero. 2024. “2023 State of Deepfakes.” https://www.securityhero.io/state-of-deepfakes/ (Accessed December 5, 2024)   United States Congress. 2024a. “S.3696 - DEFIANCE Act of 2024.” https://www.congress.gov/bill/118th-congress/senate-bill/3696 (Accessed December 5, 2024)   ______. 2024b. “H.R.5586 - DEEPFAKES Accountability Act.” https://www.congress.gov/bill/118th-congress/house-bill/5586 (Accessed December 5, 2024)   Women’s Human Rights Institute of Korea. 2023. “Research on the Experience of Digital Sex Crime Dissemination and Anxiety.” (in Korean) https://www.stop.or.kr/home/kor/M788976317/promotion/published/research/index.do (Accessed December 5, 2024)   World Economic Forum. 2024. “Global Gender Gap Report 2024.” https://www.weforum.org/publications/global-gender-gap-report-2024/ (Accessed December 5, 2024)     ■ Hansu Park is a Research Associate at the East Asia Institute.     ■ Edited by Hansu Park, Research Associate     For inquiries: 02 2277 1683 (ext. 204) | [email protected]