Duterte arrest last week puts ICC back in the spotlight

Within hours of his arrest, Duterte was on a plane to The Hague, the Netherlands capital where the ICC sits. Duterte is being investigated for presiding over a violent “war on drugs”, which saw the execution of thousands of drug dealers and drug users without any form of criminal trial.

ICC and its role

The International Criminal Court was established in 1998, under the Rome Statute, to prosecute war crimes, crimes against humanity, genocide, and other serious crimes of aggression of international concern.  The ICC has 125 member states and has jurisdiction to prosecute crimes committed by nationals of member states, or those committed on the territory of member states by other actors.

The ICC is currently investigating crimes conducted in, amongst other states, Palestine, Ukraine, a number of African states, Venezuela, Myanmar and the Philippines

To date the ICC has publicly indicted 69 people, with proceedings ongoing against 35. Cases have completed against 34 people, including convictions, acquittals, and dismissals, and it has issued 60 arrest warrants, with Duterte being the most recent. 

The Rome Statute grants the ICC jurisdiction over four main crimes:

1. Genocide – characterised by the specific intent to destroy in whole or in part a national, ethnic, racial, or religious group, by killing its members or by other means: causing serious bodily or mental harm to members of the group; deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; imposing measures intended to prevent births within the group; forcibly transferring children of the group to another group.
2. Crimes against humanity – serious violations committed as part of a large-scale attack against any civilian population including murder, rape, imprisonment, enforced disappearances, enslavement – particularly of women and children, sexual slavery, torture, apartheid, and deportation.
3. War crimes – grave breaches of the Geneva Convention in the context of armed conflict and include, for instance, the use of child soldiers; the killing or torture of persons such as civilians or prisoners of war; intentionally directing attacks against hospitals, historic monuments, or buildings dedicated to religion, education, art, science, or charitable purposes.
4. Crimes of aggression – the use of armed force by a state against the sovereignty, integrity, or independence of another state.

Criticism of the ICC

The ICC is not however without its critics – perhaps most notably US President Donald Trump.  Trump imposed sanctions on the court earlier this year after it issued an arrest warrant for Isreal’s prime minister Benjamin Netanyahu, and defence minister Yoav Gallant for alleged war crimes, and crimes against humanity conducted during its war on Hamas in Gaza.

At a time when the ICC is facing increased pressure and scrutiny, the Duterte case could play a pivotal role in both its history and its future.

So, what next for Duterte?

Interestingly, Duterte and his supporters have protested that the ICC has no jurisdiction over the Philippines, since he pulled the country out of the tribunal in 2019. Indeed, his daughter claims the ICC arrest is tantamount to kidnapping and a violation of Philippine sovereignty.

However, according to the Rome Statute, the ICC maintains jurisdiction over alleged crimes committed before a nation leaves the tribunal. In this case the ICC investigation covers crimes against humanity committed between 2011-2019, before Duterte became president. As Mayor of Davao, it is claimed he kept a “death squad” of bounty hunters to pursue drug suspects. This is a model he later replicated on a national scale when he became president.

Within hours of arriving in the Netherlands, Duterte had appeared at a hearing before the committee. He was informed of the alleged nature of the crimes he was arrested for, as well as his rights as a defendant in the ICC. Next will come a session to confirm the charges once the ICC has conducted its investigation.

The ICC investigation will include gathering evidence from victims, survivors, witnesses, and communities affected by these alleged crimes, as well as the Philippine authorities and civil society groups. At the second hearing Duterte will be given opportunity to challenge the evidence against him. The ICC will then decide whether to press ahead with trial – if it does then this process that could take years to complete.

It’s certainly not a quick process – something that might frustrate 79-year-old Duterte’s victims. Pre-trial investigations can take up to four years, and trials themselves have been known to take six or more years to complete.

As ever, we’ll keep you updated with progress.