From Punisher to Punished?: The Trial of Rodrigo Duterte & The International Criminal Court’s Challenge of Legitimacy

Cartoon image of Duterte being snatched by the International Criminal Court. Image via Malaya Business Insight.

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Former Philippine President Rodrigo Duterte’s arrest by the Philippine government, following an International Criminal Court (ICC) warrant, marks the first time an Asian head of state has been arrested for crimes against humanity. It is also the first time an Asian head of state will stand trial at The Hague. Nicknamed “The Punisher,” Duterte’s presidency was defined by his handling of the Philippine War on Drugs, which resulted in an estimated 12,000 casualties, including exactly 2,555 killings linked to the Philippine National Police and other death squads.

The news of Duterte’s arrest and extradition to The Hague has sparked outrage among Filipinos both at home and abroad, with many calling it a kidnapping. Also suggested was the possibility of a politically motivated attack due to an ongoing feud between the Duterte and Marcos political dynasties. 

Prior to the arrest, President Ferdinand Marcos Jr. and Vice President Sara Duterte, the daughter of former President Duterte, had a falling out. Major disagreements over China-Philippines relations, as well as accusations of corruption, resulted in an uneasy and unstable political partnership. This tension eventually culminated when Vice President Duterte was impeached in the House of Representatives of the Philippines on a variety of accusations, including that she was plotting to kill the president, first lady, and Martin Romualdez, the Speaker of the House (and President Marcos’ cousin). At the time of this article being written, Vice President Duterte is accompanying her father on his trip to The Hague, making an effort to rally their supporters. 

Many Filipinos have since taken to the streets in protest, accusing President Marcos of granting government permission to allow Interpol agents to detain the former president in a cheap attempt to get rid of one of his main political rivals.

But setting aside the political rancor, this monumental case serves as a challenge to the International Criminal Court’s legitimacy as an institution that has dedicated itself to promoting global justice and that possesses the jurisdiction to prosecute individuals who have committed some of the most heinous crimes in existence. From a legal standpoint, the ICC’s ability to enforce global justice under international law depends on whether nations are parties to the Rome Statute, which established the Court’s framework. Countries that sign and ratify the Rome Statute are legally bound to uphold its principles. To date, approximately 125 nations have adopted the statute and its legal guidelines, with the United States being a notable exception.

The Philippines presents an interesting dilemma, as it was a signatory to the Rome Statute until Rodrigo Duterte’s presidency. After taking office and launching the War on Drugs, Duterte faced an ICC investigation into extrajudicial killings linked to his administration, following multiple pleas from human rights organizations. In response, he accused the ICC of bias and withdrew the Philippines from the institution in 2018. The case thus raises questions about the effectiveness of international law when leaders can evade accountability by simply withdrawing from the very system meant to hold them responsible.

Duterte’s legal defense, led by his former official spokesperson, Harry Roque, and British lawyer Nicholas Kaufman, are arguing that the case against Duterte must be dismissed, as the Philippines’ withdrawal from the Rome Statute was effective long before the ICC was able to establish a formal investigation. Even further, Roque argues that the case is based on racial profiling due to leaders of developing countries being selectively targeted by the Court itself—yet another institutional challenge. 

The case of Rodrigo Duterte remains one of the most controversial cases the ICC has taken so far, with many anticipating a drawn-out legal battle with the potential to completely reconfigure the structures of international law as we know them. Only time will tell whether or not this case will be definitive in shaping international law and politics in the future.