The Price of Getting Duterte

The arrest and transfer of Rodrigo Roa Duterte to the International Criminal Court (ICC) was certainly good news for the heavily beleaguered Court. But the price of getting Duterte could be considerable. The manifest entanglement with Philippine politics is likely to harden Southeast Asian skepticism towards international criminal justice. Existing fears of external politicization are enhanced with a scenario of internal political turmoil. Consequently, Southeast Asian hesitation toward the ICC is reinforced.

The criminal case against Rodrigo Duterte

The warrant to arrest Rodrigo Duterte was based on reasonable grounds to believe that he committed crimes against humanity as vice mayor and mayor of Davao City and, subsequently, as the 16th president of the Philippines. The ICC’s Pre-Trial Chamber I (PTC I) concurred with the Prosecution’s allegation that Duterte directed extrajudicial killings (the so-called drug war) between 1 November 2011 and 16 March 2019 with thousands of victims, amounting to a widespread and systematic attack against the civilian population.

The alleged acts occurred at a time when the Republic of the Philippines was a party to the Rome Statute of the ICC. Here, it is necessary to recall that Rodrigo Duterte, as the president of the Philippines, withdrew his country from the Rome Statute after the ICC Prosecutor had announced a preliminary examination of the drug war in February 2018. The Philippines’ withdrawal became effective on 17 March 2019. In September 2021, PTC I authorized the Prosecution to launch an investigation into the situation.

The case against Duterte seems to be fairly strong. Not only did the Office of the Prosecutor gather extensive evidence to support the widespread and systematic nature of the killings, but meanwhile also Duterte himself publicly admitted that he had commanded a death squad in Davao City.

On the other hand, the question if the ICC has temporal jurisdiction continues to be the elephant in the room: Article 127(2) of the Rome Statute demands that, in order for the Court to have jurisdiction ratione temporis, a matter related to a withdrawing state must already have been “under consideration by the Court” when the state’s withdrawal becomes effective. Whether the Prosecutor’s preliminary examination, ongoing at the time of the effective date, was sufficient to meet the “under consideration by the Court” requirement, will soon need to be decided by the ICC.

An arrest amid a political feud

The ICC’s arrest warrant was issued based on reasonable grounds to believe that Duterte was criminally responsible for crimes against humanity. The warrant was forwarded to Interpol that, in turn, issued a global red notice. Philippine authorities then arrested Duterte on 11 March 2025 in Manila when he had just returned from a trip to Hong Kong. Claims of procedural irregularities in the arrest will likely be irrelevant before the ICC as these are largely matters of Philippine domestic law.

What may, however, haunt the ICC is the manifestly politicized nature of the arrest. Tactical rather than legal considerations led the Philippine government to act, provoking the perception that the arrest was less a victory for the rule of law than the result of brute friend-enemy calculations: the latest culmination in a heated political feud between the Marcoses and the Dutertes, two of the most influential dynasties in contemporary Philippine politics, which is mainly arranged around families rather than parties.

In fact, during the first year of his presidency, Ferdinand “Bongbong” Marcos Jr. and his administration did everything in their powers to fend off the ICC’s investigations. In January 2023, Marcos reportedly instructed Philippine authorities not to cooperate with ICC investigators, stating, “the Philippine government will not lift a finger to help any investigation that the ICC conducts.”

In February 2023, the Marcos government appealed against the PTC I decision (of 26 January 2023) that authorized the Prosecution to resume its investigations. In these complementarity proceedings, PTC I had found that the Philippines was not genuinely carrying out its own investigations and prosecutions. The Appeals Chamber dismissed the Philippines’ appeal (decision of 18 July 2023), giving final green light for the Prosecutor to resume investigations.

Since the fall of 2023, however, the Marcos-Duterte family rift became increasingly virulent, and visible. Political in-fighting over the allocation of funds led to broader tensions between the Marcos faction and the Dutertes, first and foremost Marcos’ former running mate, vice president Sara Duterte, daughter of Rodrigo. While the many steps of escalation cannot be recounted here, suffice it to say that a climax was reached in November 2024 when Sara Duterte reportedly claimed she had hired someone to kill president Marcos, his wife, and the Speaker of the House in case she would be assassinated. In turn, Sara Duterte is currently facing impeachment proceedings. She denies the death threat statement.

After Rodrigo Duterte’s public death squad admissions in congressional hearings of November 2024, the government finally changed its position on the ICC proceedings. President Marcos issued a statement according to which the government would be obliged to execute an Interpol request to arrest Rodrigo Duterte, relinquishing all support to defend him against the ICC. A defiant Duterte, for his part, called on the ICC to hurry up as he was getting old.

Repercussions for the ICC in Southeast Asia

The colorful episodes from the Philippines would certainly make good television. But they also reinforce a deeply held skepticism against politicized international criminal justice. Southeast Asian countries have been particularly hesitant to join the ICC system, voicing concerns of undue external interference with national sovereignty.

At the Rome Conference in 1998, the Philippines and Thailand were largely supportive of the emerging Statute for the ICC. The delegations of Indonesia and Vietnam, however, stated that ICC jurisdiction should always require the consent of the respective state concerned. Representatives from Indonesia, Malaysia and Vietnam opposed the possibility for the Prosecution to conduct its own investigations (proprio motu) without state referrals. And Indonesia and Malaysia also demanded a complete separation of the Court from the “politicized Security Council”: The Court shall be “independent of political influence of any kind.” There was, thus, considerable worry that the Court might become a political tool for external interference from other states, the prosecutor or the UN Security Council.

This apprehensiveness is reflected in more recent developments. The lukewarm cooperation of the Cambodian government with the Extraordinary Chambers in the Courts of Cambodia (the so-called Khmer Rouge Tribunal) during the latter years of their existence speaks to this. Malaysia’s abrupt U-turn en route to ICC membership in 2019 was explained with reference to royal families’ concerns about possible international exposure, in disregard of their immunity claims. And in Thailand, which had its very own drug war in the early 2000s, the protection of the monarchy, both internally and externally, remains a key reference point to explain why the kingdom is not advancing to the ratification of the Rome Statute since the government’s signature in 2000. To date, Cambodia and Timor-Leste are the only Southeast Asian parties to the Rome Statute, making the region the most underrepresented of all.

The developments surrounding the arrest of Rodrigo Duterte are unlikely to increase the Southeast Asian appetite of ICC membership, quite the reverse. Fearful of politicized interventions from outside, governments across the region witnessed how, inside the Philippines, the government took out a powerful opponent with the help of an ICC arrest warrant. Having this tool in hand may perhaps sound attractive for some. But political actors in volatile and polarized settings such as those of Indonesia, Malaysia and Thailand will be extremely cautious to sign up, knowing that it could very well be them who might eventually be targeted, depending on the politics of the day. The rather unchallenged governments of Brunei, Laos, Singapore and Vietnam, though not fearing political opponents, are not realistic candidates for a host of many reasons, neither is Myanmar at this time.

Where politicization provokes rejection

Of course, nothing of the above is the ICC’s fault. The Court benefited from developments in the Philippines that handed it an important and intriguing case. In addition, it is everything but unheard of that governments deliver their own nationals to the Court. After all, state parties referred situations in their own territories to the Court on seven occasions thus far, including the self-referral by Gabon. In divided countries, such self-referrals carry the inherent risk that an incoming government might use the ICC system to retaliate against previous powerholders. The danger of politicization is therefore nothing new or unusual.

The arrest of Rodrigo Duterte nonetheless stands out for two reasons. First, it was an incumbent government that turned against an opponent in an ongoing political feud. And second, the developments occurred in a region where the language of politicization falls on particularly fruitful ground, where non-interference has been the ever-repeated mantra, and where human rights have been losing out for years. Thus, despite all understandable enthusiasm about the future trial against Rodrigo Duterte, the political side of the case casts a shadow on the future of international criminal justice in Southeast Asia.