What a Case Against Rodrigo Duterte Could Mean for the Future of the ICC
Vol. 40 Associate Editor
President Rodrigo Duterte’s brutal war on drugs in the Philippines has been making headlines since the beginning of his presidency in 2016. The campaign has resulted in the death of thousands, but over the last year and a half, the situation in the Philippines has taken a new role on the international stage: it has become the subject of a preliminary examination by the International Criminal Court. The ICC’s Preliminary Examination of President Rodrigo Duterte So far, there is nothing particularly striking about how the Duterte case has proceeded in its initial stages. How the Court moves forward with the case, however, has the potential to define the future of the ICC. It could be pivotal because it is exactly the type of situation the Court was established to address, and the ICC is in dire need of showing that it can be effective. The first complaint against Duterte was filed by an attorney in April 2017 on behalf of two Filipino men who claim to be his former paid assassins. The allegations include mass murder and crimes against humanity. In February the ICC responded with a formal announcement that it would open a preliminary examination into the situation in the Philippines. Then in August, families of victims of Duterte’s war on drugs filed a second complaint. When the ICC’s preliminary examination was announced in February, Duterte welcomed the ICC’s involvement saying “[i]f they want to indict me and convict me, fine. . . I will gladly do it for my country.” Duterte’s compliant tone changed abruptly the next month, however, when he withdrew the Philippines from the Rome Statute, the ICC’s foundational instrument. Duterte now claims that the ICC has no jurisdiction over him, and he has threatened to arrest anyone who enters the Philippines on behalf of the ICC. In response, the ICC reaffirmed its jurisdiction over Duterte, explaining in a press release that because withdrawal from the Rome Statute takes a year to go into effect, “[a] withdrawal has no impact on ongoing proceedings or any matter which was already under consideration by the Court prior to the date on which the withdrawal became effective.” In a recent display of the President’s brazenness, Duterte gave a speech in which he challenged the Filipino military and police to remove him from office if they were unhappy with his leadership, saying “I told the military, what is my fault? Did I steal even one peso? My only sin is the extrajudicial killings.” Duterte’s role in these murders was already suspected, but this statement only fortifies the already well-documented pattern of violence that would form the basis of an ICC prosecution against him. The Current State of the International Criminal Court The prospect of an ICC prosecution against Duterte comes at a time when the Court may be at a crossroads. The weight of the Court’s influence in international law has always been uncertain, but in recent years its credibility has eroded substantially. With only four convictions since its founding in 2002, the ICC is often criticized for being ineffective and lacking authority. It is further accused of bias because it has only convicted African leaders. Additionally, the United States, which has never ratified the Rome Statute, has become a particularly vocal critic of the ICC under the Trump administration, drawing international attention to the ICC’s weaknesses. The ICC’s track record as of late only highlights these frustrations: Sudanese President Omar Hassan al-Bashir has evaded arrest with ease for nine years following an ICC indictment for charges of genocide and war crimes. The ICC has also been unable to do anything about the atrocities in Syria, because jurisdictional deficiencies have rendered Syria untouchable by the Court. In addition, the Court recently threw out former Congolese Vice President Jean-Pierre Bemba’s conviction of war crimes and crimes against humanity after finding that the trial judges in his case had made a series of legal errors. The Potential Effects of ICC Proceedings against Duterte Given the fact that so many of the ICC’s endeavors are plagued by these exasperating jurisdictional, procedural, and political obstacles, it is no wonder there is so much with the Court. In light of this, the Duterte case could be a pivotal opportunity for the ICC to establish its credibility. Not only does this case come at a good time for the ICC to prove itself, but the case itself would be a good vehicle to do so. The ICC’s prosecution of Duterte would address an internationally high-profile ongoing abuse; the case was initiated by Filipino nationals rather than by outside referrals as is the case with many other ICC cases; and Duterte has shamelessly acknowledged the murders and insisted they will continue under his leadership. If the case proceeds without any major hiccups, it could be a much-needed boost of confidence in the ICC. If it cannot, however, it could magnify growing skepticism in the Court and its ability to accomplish anything that it was established for. How the ICC moves forward with this case will speak volumes as to whether the Court is salvageable as an important international legal institution, or whether its power will continue to erode until it is no more than a failed experiment.
 See, e.g., Daniel Berehulak, ‘They Are Slaughtering Us Like Animals’, New York Times (Dec. 7, 2016), https://www.nytimes.com/interactive/2016/12/07/world/asia/rodrigo-duterte-philippines-drugs-killings.html?module=inline.  See Felipe Villamor, Duterte Says, ‘My Only Sin Is the Extrajudicial Killings’, New York Times (Sept. 27, 2018), https://www.nytimes.com/2018/09/27/world/asia/rodrigo-duterte-philippines-drug-war.html.  The Court was created to be an international adjudicatory body that would have jurisdiction to prosecute individuals for crimes against humanity, war crimes, genocide, and crimes of aggression, in order to end impunity, help end conflicts, remedy the deficiencies of ad hoc tribunals, take over when national criminal justice institutions are unwilling or unable to act, and to deter future war criminals. For an overview of the Rome Statute of the International Criminal Court (1998-99), visit http://legal.un.org/icc/general/overview.htm.  Thierry Cruvellier, Can the International Criminal Court Be Saved From Itself?, New York Times (Dec. 17, 2017), https://www.nytimes.com/2017/12/17/opinion/icc-symbolic-migrants-europe.html.  Richard C. Paddock, Charge Rodrigo Duterte With Mass Murder, Lawyer Tells the Hague, New York Times (Apr. 24, 2017), https://www.nytimes.com/2017/04/24/world/asia/rodrigo-duterte-philippines-icc-complaint.html?action=click&module=inline&pgtype=Article®ion=Footer.  Statement of the Prosecutor of the International Criminal Court, Mrs Fatou Bensouda, on opening Preliminary Examinations into the situations in the Philippines and in Venezuela, International Criminal Court (Feb. 8 2018), https://www.icc-cpi.int/Pages/item.aspx?name=180208-otp-stat.  Felipe Villamor, Duterte Is Accused of Murder in New Filing at Hague Court, New York Times (Aug. 28, 2018), https://www.nytimes.com/2018/08/28/world/asia/philippines-duterte-hague.html?action=click&module=RelatedCoverage&pgtype=Article®ion=Footer.  Villamor, supra note 2.  Manuel Mogato & Martin Petty, Philippines’ Duterte hit by new ICC complaint over deadly drug war, Reuters (Aug. 28, 2018), https://www.reuters.com/article/us-philippines-drugs/philippines-duterte-hit-by-new-icc-complaint-over-deadly-drugs-war-idUSKCN1LD0CS.  Martin Petty & Neil Jerome Morales, ‘I will arrest you’: Duterte warns ICC lawyer to steer clear of Philippines, Reuters (Apr. 13, 2018) https://www.reuters.com/article/us-philippines-duterte-icc/i-will-arrest-you-duterte-warns-icc-lawyer-to-steer-clear-of-philippines-idUSKBN1HK0DS.  Press Release, ICC Statement on the Philippines’ notice of withdrawal: State participation in Rome Statute system essential to international rule of law, International Criminal Court (March 20, 2018), https://www.icc-cpi.int/Pages/item.aspx?name=pr1371.  Villamor, supra note 2.  Hannah Ellis-Petersen, Duterte confesses: ‘My only sin is the extrajudicial killings’, The Guardian, (Sept. 28, 2018), https://www.theguardian.com/world/2018/sep/28/duterte-confesses-my-only-sin-is-the-extrajudicial-killings.  Jennifer Trahan, Views of the Future of the Field of International Justice: A Scenarios Project Based on Expert Consultations, 33 Am. U. Int’l L. Rev. 837, 939-40 (2018).  Cruvellier, supra, note 4.  Why is the International Criminal Court under attack? Reality Check, BBC News (OCt. 1 2018), https://www.bbc.com/news/av/world-45670690/why-is-the-international-criminal-court-under-attack.  Alexandra Zavis and Robin Dixon, Only Africans have been tried at the court for the worst crimes on earth, Los Angeles Times (Oct. 23, 2016), http://www.latimes.com/world/africa/la-fg-icc-africa-snap-story.html.  See US President Trump Rejects Globalism in Speech to UN General Assembly’s Annual Debate, UN News (Sept. 25, 2018), https://news.un.org/en/story/2018/09/1020472, (“‘As far as America is concerned, the ICC has no jurisdiction, no legitimacy, and no authority,’ [Trump] declared.”); See also Mark Landler, Bolton Expands on His Boss’s Views, Except on North Korea, New York Times (Sept. 10, 2018).  Marlise Simons South Africa Should Have Arrested Sudan’s President, I.C.C. Rules, New York Times (July 6, 2017), https://www.nytimes.com/2017/07/06/world/africa/icc-south-africa-sudan-bashir.html?rref=collection%2Ftimestopic%2FInternational%20Criminal%20Court.  Editorial Board, Frustration Over a War and Its Crimes, New York Times (Aug. 9, 2017), https://www.nytimes.com/2017/08/09/opinion/syria-war-crimes-security-council.html?rref=collection%2Ftimestopic%2FInternational%20Criminal%20Court.  Bemba’s 2016 conviction had been a significant achievement by the ICC as a showing of the Court’s ability to hold politicians and military officials liable for crimes against their own people. It was also the first time the court held that rape could be a weapon of war. Marlise Simons, International Court Throws Out War Crimes Conviction of Congolese Politician, New York Times (June 9, 2018), https://www.nytimes.com/2018/06/09/world/africa/bemba-overturn-international-court.html?rref=collection%2Ftimestopic%2FInternational%20Criminal%20Court.  Mark Kersten, A Brutally Honest Confrontation with the ICC’s Past: Thoughts on ‘The Prosecutor and the President’, Justice in Conflict (June 23, 2016), https://justiceinconflict.org/2016/06/23/a-brutally-honest-confrontation-with-the-iccs-past-thoughts-on-the-prosecutor-and-the-president/.  Cruvellier, supra, note 4 (“[o]ne of the key ways for the ICC — and international justice as a whole — to regain legitimacy is to be moved by victims’ initiatives rather than by states or influential Western-dominated interest groups.”).  Under the Rome Statute, cases can also be referred to the ICC by the U.N. Security Council, other countries, or the ICC prosecutor. Rome Statute of the International Criminal Court art. 13, opened for signing July 17 1998 (entered into force July 1, 2002).  Philippines’ Duterte vows to continue ‘chilling’ war on drugs, Al Jazeera (Jul. 23, 2018), https://www.aljazeera.com/news/2018/07/philippines-duterte-vows-continue-chilling-war-drugs-180723180900751.html. The views expressed in this post represent the views of the post’s author only.