The ICC showed its might by arresting Rodrigo Duterte. Its reputation will take longer to fix

Only five days after the arrest warrant^[1] against former Philippines President Rodrigo Duterte was issued, he was apprehended and immediately put on a plane to The Hague to face charges before the International Criminal Court (ICC).

The prompt action – and the fact he is the first former Asian head of state before the ICC – have been heralded as “a pivotal moment for the court^[2]”.

While this is a rare success story in the court’s tumultuous history, many challenges remain. The successful arrest of one defendant will unfortunately do little to change negative perceptions of the court or remove the many obstacles it faces in prosecuting cases.

A long history of criticism

The ICC was conceived as a “court of last resort” in 1998 under the Rome Statute^[3], the treaty that established it. The aim was to try individuals accused of war crimes, crimes against humanity, genocide and aggression in cases where a state’s domestic courts refuse or are unable to do so.

Shortly after it began its work in 2002, however, the ICC faced criticism^[4] for its perceived focus on Africa.

In more recent years, it has also been criticised for its limited effectiveness^[5], its perceived hypocrisy^[6], and a lack of support from major powers, such as the US, China and Russia, which are not members.

The court has long faced a public relations crisis it may never be able to resolve. When it does not investigate a potential case, it is said to be ineffective. And when it does initiate investigations, it is often said to be biased or acting beyond its capabilities.

Putin and Netanyahu

Currently, the ICC has 12 ongoing investigations^[7], mostly in Africa and Asia. It has issued 56 arrest warrants^[8], half of which have yet to be executed.

As the focus of the court is limited to those who bear the greatest responsibility for international crimes^[9], the cases frequently involve high-profile individuals.

Current arrest warrants, for example, have been issued against Russian President Vladimir Putin^[10] on charges of allegedly deporting Ukrainian children to Russia^[11] and Israeli Prime Minister Benjamin Netanyahu^[12] for alleged war crimes committed in Gaza.

These two cases have been among the court’s most controversial. Critics say the ICC lacks jurisdiction because:

• the alleged crimes did not occur in their own states
• their states are not parties to the Rome Statute
• the UN Security Council did not refer these cases to the ICC for investigation.

Others have accused the court of selective prosecution^[13] and bias for pursuing a case against Netanyahu, specifically, instead of prioritising cases in states run by dictators, such as Syria.

And some complain the court should be focusing on crimes allegedly committed by Western leaders^[14] in places like Iraq.

Indicting leaders of states raises additional legal challenges. International law dictates that heads of state enjoy immunity^[15] in other states’ courts – unless this immunity is expressly waived by their own governments.

The ICC defends its actions as fair. It argues it does have jurisdiction in the cases against Putin and Netanyahu because the alleged crimes took place in Ukraine and Palestine, two states who have explicitly accepted its jurisdiction.

And Article 27 of the Rome Statute says the ICC can exercise jurisdiction over people with state immunity, although it’s debatable^[16] whether this must be first waived for leaders of states not party to the Rome Statute.

Cooperation remains key

The ICC is not only constrained by these complex legal questions, but also by the limited cooperation of states around the world.

It relies on close cooperation with its 125 state parties, among others. But some states have been reluctant or even refused to cooperate with the court in executing the arrest warrants of controversial figures.

For example, Putin was not arrested when he visited Mongolia, an ICC member, last year, in part, because Mongolia relies heavily^[17] on Russian energy. South Africa similarly refused^[18] to arrest Sudanese dictator Omar al-Bashir when he visited in 2015.

Even when state parties do cooperate, the political fallout can impact the court’s reputation.

Following Duterte’s arrest last week, a Filipino senator (the sister of the current president) launched an urgent investigation^[19] to ensure due process was followed and Duterte’s legal rights were upheld and protected. She acknowledged the arrest has “has deeply divided the nation”.

The lack of support from the US – arguably, still the world’s most powerful democracy – remains a perennial problem, as well.

While the US has generally supported the court’s mandate over the years, it has been wary of its jurisdiction over American citizens and those of its allies accused of crimes. Last month, President Donald Trump authorised new sanctions^[20] against ICC officials in an attempt to paralyse the international organisation.

Although 79 states did declare their support for the ICC^[21] following the sanctions, the Trump adminstration’s rejection of the court’s jurisdiction, legitimacy and authority has had significant consequences for its operations.

It remains to be seen how the case against Duterte will play out. Securing a conviction is not assured.

However, his arrest demonstrates the court can fulfil its mandate and remain a relevant force in the fight against the gravest of crimes. It is also a significant moment for the families of those killed during Duterte’s rule, who have long sought justice^[22] for their loved ones.

References

1. ^{^} arrest warrant (www.icc-cpi.int)
2. ^{^} a pivotal moment for the court (www.bbc.com)
3. ^{^} Rome Statute (www.icc-cpi.int)
4. ^{^} criticism (www.hrw.org)
5. ^{^} limited effectiveness (theconversation.com)
6. ^{^} perceived hypocrisy (www.newsweek.com)
7. ^{^} 12 ongoing investigations (www.icc-cpi.int)
8. ^{^} 56 arrest warrants (edition.cnn.com)
9. ^{^} greatest responsibility for international crimes (www.icc-cpi.int)
10. ^{^} Russian President Vladimir Putin (www.icc-cpi.int)
11. ^{^} allegedly deporting Ukrainian children to Russia (theconversation.com)
12. ^{^} Israeli Prime Minister Benjamin Netanyahu (www.icc-cpi.int)
13. ^{^} selective prosecution (www.washingtonpost.com)
14. ^{^} Western leaders (www.theguardian.com)
15. ^{^} heads of state enjoy immunity (www.idi-iil.org)
16. ^{^} debatable (www.justsecurity.org)
17. ^{^} relies heavily (thediplomat.com)
18. ^{^} similarly refused (www.theguardian.com)
19. ^{^} urgent investigation (www.aljazeera.com)
20. ^{^} President Donald Trump authorised new sanctions (www.hrw.org)
21. ^{^} 79 states did declare their support for the ICC (buildingtrust.si)
22. ^{^} sought justice (www.aljazeera.com)