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The arrest of former President of the Philippines Rodrigo Duterte on a warrant issued by the International Criminal Court (ICC) marks a rare success in the ICC’s attempts to make senior political figures, especially those who have held or still hold public office, accountable for their crimes. However, it has to be acknowledged that only a set of favourable circumstances led to Mr. Duterte’s arrest, and his being flown to The Hague: the warrant was executed by the government headed by President Ferdinand Marcos Jr., and the decision may have been the fallout of his differences with Vice-President Sara Duterte, Mr. Duterte’s daughter who is embroiled in impeachment proceedings. ICC warrants invariably remain unexecuted, unless national governments cooperate with the ICC, a feature that often delays and stymies most ICC prosecutions. Mr. Duterte has been accused of “the crime against humanity of murder”. The reference is to his ‘war on drugs’, a campaign of state-backed killing when he was Mayor of Davao City, and later President. The ICC is investigating the situation between 2011 and 2019, as he formally pulled his country out of ICC membership. However, the Pre-Trial Chamber has determined that despite the country not being a state-party now, it has jurisdiction to try crimes committed by individuals during the time the Philippines was a party.
The ICC was created by the Rome Statute in response to a need to have a permanent court, instead of ad hoc tribunals, for war crimes and crimes against humanity. It has no power of enforcement and is dependent on the national interests of big powers. It has often been accused of focusing on Africa, moving mainly against warlords and leaders in conflict zones. Warrants against leaders such as Vladimir Putin and Benjamin Netanyahu are seldom executed. In addition, some member-states have also expressed an inability to execute arrest warrants when those individuals visit their countries, while some leaders avoid visiting countries of state-parties. Added to this is the open hostility of the United States that frequently threatens the ICC with punitive measures if it moves against its nationals or allies. Fortunately, the ICC still exists as an international judicial institution mainly because it tries only individuals and not states. It has also rendered some significant verdicts on its own jurisdiction, the most important being the ruling in respect of Palestine that it can order investigations into crimes committed by nationals of both state-parties and non-state-parties on the territory of a state-party. Thus, a mere refusal by a country to ratify the Rome Statute or not being a party to it may not be relevant to any decision by the ICC to investigate and prosecute any individual.
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Published – March 17, 2025 12:10 am IST
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Rare success: on the International Criminal Court and Duterte arrest
