In perhaps its highest profile arrest to date, the International Criminal Court (ICC) had former Philippines president Rodrigo Duterte detained on Tuesday, March 11th. Duterte faces charges based on his former administration’s ‘war on drugs’—primarily his campaign of extrajudicial killings of addicts and ‘narcotics personalities’—between 2016 and 2022.
The Hague-based court first announced a “preliminary examination” into lethal violence linked to the Philippine drug war in February 2018, around 18 months into Duterte’s campaign. This culminated in an arrest warrant, executed as the former president returned to Ninoy Aquino International Airport in Metro Manila from Hong Kong.
On the surface, allegations of ‘crimes against humanity’ have a strong basis in fact. While estimates vary wildly, somewhere between 6,000 and 20,000 drug suspects died violently on Duterte’s watch. This includes at least 54 minors. Official police figures for such fatalities are grim, but the recorded statistics appear alongside the actions of armed vigilantes and a large number of unsolved ‘disappearances.’ Family members point to the loss of sons who smoked cannabis or used amphetamines while working—hardly proof of the transformation of the Philippines into a ‘Narco-state,’ as Duterte claimed. Other casualties included political opponents of the then-president.
Case closed? Now, with the first ever Asian leader potentially up before the Court, it is worth considering some of the problems inherent in this organisation. In its modern form, which dates back to the International Criminal Tribunals for the former Yugoslavia (1993) and Rwanda (1994), there were both sovereigntist and left-wing concerns that the outfit would lead to ‘victor’s justice.’ The U.S. voted against its main statute in 1998, and it appeared that major powers would enjoy immunity from prosecution. Significantly, Israel also opposed the trap set by Arab states supporting the ICC, which treated population transfers into occupied territories as being among the worst crimes.
The arrest of Duterte is symptomatic of the mission creep of the ICC. With NGOs such as the Red Cross and Amnesty International present almost from the beginning, and a dominance of undemocratic states from across the developing world, it always had the potential to be much worse than its early critics predicted.
This can be seen most clearly in its pursuit of arrest warrants against democratically elected Israeli prime minister Benjamin Netanyahu and his former defence minister Yoav Gallant, which some European Union member states have had the wisdom to oppose. Most recently, the chief of the Hungarian prime minister’s office, Gergely Gulyás, looked forward to an imminent Budapest visit from Netanyahu where the arrest warrant would be defied, adding that if it was up to him, Hungary would withdraw from the ICC.
U.S. president Donald Trump took this scepticism further, by slapping sanctions on ICC staff and calling the court “illegitimate.”
If other critics are wondering if the Court’s pursuit of Israel is a ‘bug’ or a ‘feature’ of the system, given the influence of unelected NGOs and undemocratic regimes, the case of Duterte warrants close attention. Previous prosecutions have tended to focus on war crimes or treatment of neighbouring civilian populations. This time, there is an emphasis on international and extraterritorial punishments for domestic policy transgressions.
Like him or not, in 2016 Duterte was given a significant mandate by the Filipino electorate. He ran on an anti-crime platform where his record as mayor of Davao City showed what he would do to restore order across the country. This strongman image was consolidated by his reputed involvement in Davao’s death squad, which counted street children among its victims, and his own admissions of shooting a school bully and stabbing a rival in a street fight. The use of lethal force as Davao mayor was rolled out at a national level, as the Philippines’ commander-in-chief called on fellow citizens to start a nationwide cull of drug addicts.
Unrelenting official violence from Manila caught the attention of the ICC and even the selectively pro-human rights European Commission. In 2019, the Philippines withdrew from the ICC amid an investigation of its war on drugs. The arrest of Duterte marks the latest stage of this process.
Tough cases make bad law, but it’s clear from this latest ICC initiative that—like the disgraceful campaign against Israel—the Court will gladly override national sovereignty and the wishes of millions of Filipino voters.
