Photo: PixelBiss/Adobe Stock
Upon returning to Manila from travel in Hong Kong on March 11, former Philippine President Rodrigo Duterte was taken into custody by police on a warrant from the International Criminal Court (ICC). The ICC warrant, which remains under seal at the time of writing, alleges (per a review of the document by the New York Times) that President Duterte was responsible for “both widespread and systematic” killings when he was president and when he was mayor of the Philippine city of Davao. Under the Rome Statute, which formally established the ICC, these killings amount to crimes against humanity.
Q1: Has the ICC issued arrest warrants for heads of state previously?
A1: While President Duterte is not the first to be indicted by the ICC, he is the first to be arrested under such a warrant. Other indictments include Russian President Vladimir Putin, Israeli Prime Minister Benjamin Netanyahu, former Sudanese President Omar al-Bashir, and leader of the Myanmar Junta Min Aung Hlaing. These indictments with no corresponding arrests present important case studies on the geopolitical factors that often stand in the way of international criminal justice, including lack of access to indicted individuals, alliances, and domestic or regional pressures.
Q2: How have those warrants been addressed?
A2: President Vladimir Putin—Russian President Vladimir Putin was indicted by the ICC in 2023 in connection with Russia’s full-scale war in Ukraine in 2022. The allegations of crimes against humanity in the indictment center around the unlawful deportation and transfer of children in occupied areas of Ukraine.
Under the ICC legal regime, states parties are required to arrest anyone in their territory indicted by the ICC. However, Russia is not a party to the Rome Statute, and since being indicted in February of 2023, President Putin has largely restricted his travel to countries that are similarly not parties to the Rome Statute.
The notable exception to this travel limitation was a trip to Mongolia that President Putin took in September of 2024. In a statement after President Putin had left the country, the Mongolian government professed a policy neutrality, but also was clear that it was in a state of energy dependence from Russia. Perhaps this is why in advance of the visit a Russian government spokesperson was confident President Putin would not be arrested.
The ICC responded to Mongolia’s failure to detain the president by issuing a finding that Mongolia had failed to cooperate with the ICC, but the potential outcomes are limited (more on this below).
Prime Minister Benjamin Netanyahu—On November 21, 2024, the ICC issued an arrest warrant for Israeli Prime Minister Benjamin Netanyahu for crimes against humanity related to the situation in the Gaza Strip. In the conflict, the court has also issued indictments for leaders of Hamas. As the warrants were only issued four months ago, Prime Minister Netanyahu has had little occasion to travel, with his only trip being taken to the United States, also not a party to the Rome Statute.
The geopolitical protections of Prime Minister Netanyahu stem largely from the interests of a global power, the United States. In response to the arrest warrant, the United States imposed sanctions on the ICC’s lead prosecutor Karim Khan. Additionally, the U.S. House of Representatives has proposed a bill that would impose penalties on any “foreign persons that engaged in or materially assisted.” The “ICC attempts to investigate, arrest, detain or prosecute a protected person,” which the bill defines as “any U.S. individual, U.S. entity, or person in the United States . . . [or] any foreign person that is a citizen or lawful resident of a U.S. ally that is not a state party to the Rome Statute or has not consented to ICC jurisdiction.” The combination of sanctions from the White House and proposed legislation makes it clear that there would be geopolitical costs levied by the United States and its allies to complying with the arrest warrant for the 125 state parties to the Rome Statute.
Omar al-Bashir—The former president of Sudan, Omar al-Bashir, was twice indicted by the ICC in 2009 and 2010, after he had led the North African country for more than two and a half decades. He was charged with crimes against humanity and war crimes as well as genocide in Darfur.
Despite the indictments, then President al-Bashir traveled relatively freely until he was deposed in a 2019 popular uprising. One of these trips bears particular examination.
President al-Bashir attended South Africa for an African Union (AU) meeting in June of 2015. Advocates for international justice took to domestic courts to compel the government of South Africa to arrest him and transfer him to The Hague. The South African government argued that President al-Bashir enjoyed head of state immunity under the relevant laws, an argument they eventually lost in both domestic courts and at the ICC when they were cited for noncompliance. However, President al-Bashir was able to fly home unimpeded.
A political backdrop to President al-Bashir’s visit was an effort from South Africa to leave the ICC’s jurisdiction, along with a general scorn towards the ICC from the AU and many AU member states. This would eventually result in a withdrawal notice from multiple African states (though most were reversed) as well as an AU “withdrawal strategy” that decried the “selectivity and inequality” of the ICC “only pursuing African cases.” The AU also adopted a declaration in its 2009 AU Commission meeting vowing not to cooperate with the ICC in its pursuit of President al-Bashir, as well as a “Decision on the International Criminal Court” in 2020 that would call upon all AU member states to oppose the finding of noncooperation by Jordan in not detaining President al-Bashir, in a different episode of his travels.
While the relationship South Africa, and the wider AU, has with the ICC has ebbed and flowed over the years (South Africa reversed its decision to withdrawal, however President Cyril Ramaphosa mentioned as recently as 2023 that it is desired by the governing African National Congress), allowing President al-Bashir to leave unmolested stands in sharp contrast to South Africa’s referral of Israel and Israeli leaders to the International Court of Justice for the crime of genocide. The difference in these concerns surrounding genocide and other international crimes is likely determined by factors other than law.
Taken together, international justice cannot be separated from geopolitics. Historically indicted leaders have escaped arrest through a lack of jurisdiction and reach of the ICC alongside their personal decisions not to travel, but also through realpolitik. This includes threats, either explicit or implicit, to impose costs for arrest of a state’s citizens or that of its allies as well as the difficult relationship the ICC has with some states or regions, in particular those that see themselves as unduly targeted by its actions.
Q3: What can be done to ensure compliance?
A3: There are a wide array of options for responding to noncooperation including referral to the Assembly of State Parties (ASP), referral to the UN Security Council, and various informal and diplomatic pressures, however, as a practical matter, the options for ensuring cooperation with the ICC are limited. Take, for example, Mongolia’s failure to cooperate with regard to President Putin. The ICC found that Mongolia had not met its obligations, and the matter was referred to the ASP. As Professor Olympia Bekou notes on referrals to the ASP generally, “adopting countermeasures should not be precluded as a theoretically available option, it would be a radical one.”
Referrals aim to improve future cooperation rather than punish for noncooperation. In this vein, “a finding of State responsibility will not assist in securing cooperation with the Court in practice.” Put differently, the ICC has to weigh whether it will alienate state parties when considering countermeasures as cooperation from that State or its allies may be required in the future. This makes for a very difficult, and fundamentally political, consideration when responding to noncooperation.
Q4: Does the arrest of President Duterte signal a new era of leaders in the ICC?
A4: The flip side of geopolitics playing a substantial role in leaders escaping justice is its outsized role in when leaders will be held accountable for their actions. In various other international arenas, it has taken major political sea changes for leaders to find themselves in court. The list includes Hissène Habré, who saw trial 25 years after he was deposed in Chad, Slobodan Milosevic, who would only see trial after a popular uprising toppled his regime, and would die during the proceedings, or many other ex-rulers who justice catches up with.
The arrest of President Rodrigo Duterte is similarly responsive to politics, though of the domestic variety. As Japhet Quitzon observed, “Marcos initially balked at ICC activity in the Philippines, announcing in January 2024 that his government would not cooperate with the investigation into Duterte. But as his relationship with Vice President Sara Duterte worsened, so did Marcos’s resistance to the ICC. In November 2024, his government announced that it would be obligated to comply should the ICC seek the elder Duterte’s arrest.”
Ultimately, international justice cannot be separated from political economy. Every indictment at the ICC or any other institution of international justice is part of a broader political context. Removing this context while asking states to arrest alleged war criminals is an impossibility. While very often this geopolitical reality flies in the face of justice, the arrest of President Rodrigo Duterte provides hope for victims of international crimes that there will be more cases where political tides result in arrests and trials for those accused of heinous crimes.
Andrew Friedman is a senior fellow in the Human Rights Initiative at the Center for Strategic and International Studies in Washington, D.C.
