The arrest of Rodrigo Duterte, a monumental first for international justice
Legal news often make fewer headlines on what is — or isn’t — happening on the political or humanitarian front in conflict regions. Yet, important developments continue to occur across all continents, even if they do not end the humanitarian tragedies these conflicts cause.
On May 9, around 40 countries approved the creation, within the framework of the Council of Europe, of a special tribunal tasked with prosecuting the crimes of aggression committed by Russia in Ukraine since 2022, as well as since the invasion of Crimea in 2014 — intended to compensate for the ICC’s lack of jurisdiction.
A special tribunal for the crime of aggression by Russia against Ukraine
The prosecutor of this new tribunal will reportedly be able to issue an indictment containing charges against Vladimir Putin, his prime minister, or his foreign minister; however, due to their immunity, no trial can take place while they remain in office in Moscow. The situation would nevertheless change the day they are no longer in office, allowing them to be tried even in absentia. The possibility of this tribunal prosecuting other nationals, notably Belarusians or even North Koreans, also appears to be open.
If the work of such a tribunal eventually leads to indictments, they would be the first prosecutions in the world for the crime of aggression in over 80 years. As Marieke de Hoon from the University of Amsterdam points out, the stakes are therefore enormous, as the norm of territorial integrity — and the collective security system linked to it — are collapsing before our eyes.
ICC arrest warrants will no longer be made public
As for the situation in the Middle East, in late April, the English press reported that the ICC Prosecutor’s Office was preparing to issue new arrest warrants against Israeli nationals — this time in connection with alleged international crimes committed in the occupied territories. The ICC judges also appear determined to assess the merits of these potentially explosive new requests without yielding to political pressure. They have therefore ordered the Prosecutor’s Office to no longer make its arrest warrant requests public, as it has done in the past — notably for Vladimir Putin, Benjamin Netanyahu, the leaders of Hamas, Talibans, and the regime in Myanmar. It remains to be seen what the Office will do, considering that Karim Khan has just temporarily stepped down amid media reports of allegations of inappropriate sexual behavior against him, which he denies.
Furthermore, at the end of April, the ICC Appeals Chamber issued two rulings following appeals filed by Israel against the Pre-Trial Chamber’s decisions, handed down at the same time as the issuance of arrest warrants against Benjamin Netanyahu and Yoav Gallant. According to some observers, the objective was to suspend these two arrest warrants — and if so, the attempts failed.
Indeed, the Chamber refused to suspend the warrants, which remain fully valid, with the 126 ICC member states legally obligated to arrest these Israeli officials if they enter their territory — something Hungary failed to do in April with regard to Mr. Netanyahu. However, the Chamber did partially side with Israel by affirming its right to challenge the ICC’s jurisdiction before the Pre-Trial Chamber.
A legal first in the Philippines
However, the most spectacular news for international justice in recent weeks undoubtedly came from the Western Pacific, with the ICC’s arrest warrant and transfer into custody of former Philippine President Rodrigo Duterte in mid-March. The press noted the historic and symbolic nature of this case, as it is the very first time that an Asian leader has been detained at the ICC — just as some were considering the institution to be on its last legs.
This precedent is also of immense importance in another respect. The Philippine government is engaged — a fact that many are unaware of — in multiple and parallel conflicts with armed groups on its territory, some of which have lasted for over fifty years. However, Rodrigo Duterte is not imprisoned in The Hague in connection with these armed conflicts, but rather, because of his “war on drugs,” which falls outside the context of an armed conflict as understood by humanitarian law.
The acts he is accused of, which allegedly caused the deaths of between 12,000 and 30,000 people as per the ICC, are classified as crimes against humanity, since — in theory — a crime against humanity does not necessarily require a connection to an armed conflict, but a “widespread or systematic attack against any civilian population.” Yet, until now, nearly all trials for crimes against humanity have taken place in the context of an armed conflict. In over twenty years of practice before various national and international courts, I myself have never worked on a crimes against humanity case without a link to armed conflict. Here, before the ICC, is a case of crimes against humanity in peacetime — in the legal sense — and not a minor one.
The former President Duterte, in office from 2016 to 2022, seems to be the ideal target for such a first. Just a few days before his arrest, speaking from Hong Kong, he referred to ICC investigators as “sons of bitches,” described himself as a killer, and even appeared to accept, in a video message published while he was on his way to The Hague, full responsibility for anything he might be accused of. He is indeed suspected of having ordered these crimes through state repression, officially aimed against drug users and traffickers but primarily targeting poor men — often without proof of their involvement in drug trafficking.
“You will see the fish in Manila Bay getting fat. That is where I will dump you.”
Among the documents attached to the Prosecutor’s request for arrest are statements made by Rodrigo Duterte during his election campaign, in which he claimed that the number of criminals killed “will reach 100,000,” that he would kill them all, and that the fish in Manila Bay will get fat because that is where “I will throw you.” As noted by Professor Tom Smith of the University of Portsmouth, Mr. Duterte’s deadly policy as head of state was a continuation of a hardline security stance that dates back to his days as mayor of a city in the south of the Philippines, starting in 1988, during which he had openly admitted to personally killing people with his Davao death squad.
As is often the case, this affair was also made possible thanks to the exemplary courage of citizens from very different backgrounds — religious figures, doctors, relatives of victims, photographers, and politicians — all of whom took considerable risks for their own safety and provided various incriminating elements that contributed to the ICC Prosecutor’s case.
This proceeding is also not free of political considerations on the part of Ferdinand Marcos, the current President of the Philippines, as argued by Rodrigo Duterte’s lawyer during the initial hearing. It will be fascinating to see how the Philippine state positions itself when the role played at the time by the national police in all these abuses is brought up — especially as members of that police force now hold positions of power.
At a time when democratically elected populist leaders are using belligerent rhetoric against entire segments of their populations, this case, brought against a former head of state for crimes against humanity committed against his fellow citizens in peacetime, seems especially timely. Next hearing before a possible trial: September 23.
The article first appeared in French on Le Temps on the 19th of May 2025
Image: Rodrigo Roa Duterte appearing for the first time before the ICC judges on 14 March 2025. ICC-CPI
