A Filipino Story: Duterte’s Fall Gives The Hague a Lifeline

CHRIS STEPHEN REPORTS: Docket empty and credibility fading, the International Criminal Court was staring into the abyss — until the Philippines unexpectedly handed over its former president

By Chris Stephen

What does a court do when it has no cases to try? Shut down? Sell the furniture? Hire out robes and courtroom for weddings and bachelor parties? That was the problem facing the International Criminal Court.

Its judges knew that when their existing cases wound up this summer, there were no more to come. Not because the ICC has no suspects. There are more than 30 at large, but none are being arrested. By this time next year, the jail would be empty, and the courtroom too.

For an operation already shuddering under sanctions from Trump and threats from the Kremlin to zap it with missiles, the lack of new cases spelt doom. Its record so far is dismal enough: In its twenty-two years of existence, it has managed to jail just six war criminals, despite spending north of $3 billion. With no new cases to try it faced being possibly mothballed. What it needed was a miracle, and on March 11 it got one.

That day, the Philippines arrested their former president Rodrigo Duterte and sent him to The Hague.

At a stroke, the fortunes of the court have changed. Duterte’s alleged crimes are legion. When he became president in 2016, he unleashed security forces to rid the Philippines of an epidemic in drug-taking and associated violence. The methods of his special squads were brutal, with murders not just of drug sellers but addicts. A government commission has since estimated the war on drugs took more than 6,000 lives, with human rights groups saying the real figure is double that number.

Prosecutors appear confident, partly because the killings were far from secret. Security forces boasted about them, and Duterte was not shy about the harsh methods he insisted were needed to rid his country of the drugs menace.

Duterte is being prosecuted both for alleged murders while president, and more before he was president. He first embarked on his war on drugs while mayor of Davao City, creating a team named the Davao Death Squad to accomplish the task.

On the face of it, then, this is exactly the kind of case the ICC was built for. A senior figure, a former president no less, accused of grievous crimes against his own people.

So on 10 February 2025, the Office of the Prosecutor of the ICC applied for an arrest warrant against Duterte for the crimes against humanity. Judges agreed there were “reasonable grounds” for the charge and stamped it and sent it to Manilla.

But there’s a problem. And the problem is the politics. It starts with the fact that the Philippines is not an ICC member.

The ICC is not a world court. Its powers are limited to its 125 member states, and Philippines quit the court in 2018. Now, Duterte was the one who pulled the country out of the ICC, and he did it a month after the ICC announced it was investigating him. Even so, formally, the Philippines is not an ICC member and under no obligation to hand over suspects.

Yet that is what the new government did. His arrest warrant was issued in secret on March 7 and that day, possibly tipped off, Duterte flew to Hong Kong. Four days later, he flew home again, to be arrested by police at Manilla airport. The arrest was dramatic, because Duterte uses a wheelchair and is fragile. Nevertheless the government found a charter flight and whisked him off to the Hague.

The move sparked a political furor in Manila, with the government facing recriminations over its denials that it had prior knowledge of the ICC’s arrest warrant. Critics (see article in The Manila Times) accuse the administration of misleading the public, and of using Duterte’s transfer to The Hague to settle old political scores. Duterte was handed over by his key political rival, sitting president Bongbong Marcos. The two men are scions of the two political families who have dominated the country’s political landscape for years.

Moreover, Duterte supporters complain that the transfer to The Hague was illegal, and under Philippines law it may well be so. The country is not part of the ICC and not obliged to hand over its suspects. The government cheerfully admits it has no obligations to the ICC, saying it made the arrest on an instruction from Interpol. That explanation doesn’t scan. Interpol is an information agency, and has no enforcement powers. It just transmits information, including an ICC warrant. The Philippines was within its rights to ignore it.

That matters not to the ICC. Hague rules are simple. Suspects who show up go on trial. No ifs, no buts, no immunities. Even ex-presidents get to face the music.

Where is does matter is politically, with the allegation that this is two-tier justice. A country can exit the ICC, then send a former president and political rival for trial there, knowing the ICC has no powers over the present authorities.

To be fair, the ICC has no choice in the matter. Its rules are complex, but are best understood as a sort of Hotel California: With the ICC, you can check out any time you like, but you can never leave. The fact that the Philippines was a willing member until 2019 (when it announced it was quitting) means the court can investigate anything up to that date.

Domestically, opinion has yet to settle, and its unclear how this arrest will affect the looming mid-term elections. Duterte’s brutal drugs crackdown was both popular and unpopular. A recent poll found 71 percent saying abuses were committed in the war-on-drugs. But 75 percent in the same poll also said they approved of that war in making the streets safe. A common refrain in the Philippines is that Duterte “killed thousands, but saved millions.”

In that, there is a parallel to the ongoing War Against The Gangs underway in El Salvador. Plagued by anarchic gang violence, the government has in recent years run a brutal crackdown, arresting 85,000 people accused of gang affiliations. The crackdown is brutal, the prison conditions harsh. But social media is awash with photos posted by Salvadorians showing their newly crime-free streets.

Hague judges won’t care overmuch about politics. Sure, the Philippines has no plans to return to the ICC, but at least the judges get to try a case. Ghastly crimes were reported and now the court gets to do what it was built for and hold people to account. Duterte is 80, and in failing health, and he may be spending several years in detention regardless of the eventual verdict. But finally, the ICC has a new case.

Chris Stephen is author of The Future of War Crimes Justice, published in February 2024 by Melville House (London and New York) and Judgement Day: The Trial of Slobodan Milosevic (Atlantic Books, New York, 2005). He has reported on nine wars for many publications and has written about war crimes justice for The Guardian, International Institute for Strategic Studies, Petroleum Economist, and Counsel, the magazine of the Bar of England and Wales.