Duterte’s arrest shows power and limits of the International Criminal Court

Police in the Philippines arrested Rodrigo Duterte, the country’s former president, Tuesday on charges of crimes against humanity under a warrant by the International Criminal Court.

While in office, Duterte encouraged the police to hunt down and kill people whom they suspected of being involved in the illegal drug trade. Human rights groups say that more than 30,000 people were killed in extrajudicial executions.

The arrest represents a significant victory for the ICC, an independent judicial body that investigates and tries people accused of genocide, war crimes, crimes against humanity and the crime of aggression from its base in The Hague.

But Duterte’s arrest also shows the limits of the court’s power: Although its jurisdiction is sweeping, the court cannot carry out arrests on its own. It relies on the cooperation of national governments to execute its warrants, which leaves it at the mercy of domestic politics.

Arresting Duterte was possible because he was out of office and politically weakened. By contrast, there appears to be essentially no chance that the ICC arrest warrants for President Vladimir Putin of Russia or Prime Minister Benjamin Netanyahu of Israel will be carried out anytime soon.

On paper, the ICC has the ability to order the arrest of anyone who is alleged to have committed a crime listed in the Rome Statute, the 1998 treaty that established the court, and who is either a national of an ICC member state or committed the crime on the territory of one. Even sitting leaders are not immune from prosecution — a notable departure from the usual rules of international law. (Duterte withdrew the Philippines from the court during his presidency, but a panel of ICC judges found that the court still has jurisdiction because his alleged crimes took place before that withdrawal.)

But in practice, the court has little to no ability to go after sitting leaders, or people under their protection.

Duterte may have expected to be protected by his successor, Ferdinand Marcos Jr., who initially pledged to shield him from international inquiry. But then Duterte’s family — especially his daughter Sara Duterte, who is vice president — had a dramatic falling out with Marcos (Sara Duterte said she wanted to cut Marcos’ head off and threatened to dig up the body of his dead father and throw it into the ocean).

As the relationship deteriorated, so did Rodrigo Duterte’s protection from the international court. Marcos began allowing ICC investigators into the country.

Experts say this narrow set of circumstances created a way for the ICC to act.

“We can’t expect a new institution to substantially counteract the operation of power, or real entrenched interests of powerful actors,” said Kate Cronin-Furman, a professor at University College London who studies accountability for mass atrocities. “But what we do hope that they’ll do is adjust things along the margins, and over time shift things toward a more just world.”

“In the absence of the ICC, Duterte probably happily lives out his life, responsible for the massacre of thousands,” she added.

Most of the outstanding ICC arrest warrants have not gone the same way. Many of the court’s most high-profile warrants have not resulted in arrests, including the cases of Putin and Netanyahu.

For political leaders who are targeted by the ICC, the power of their offices can often be enough to protect them from arrest. But with Duterte as a notable example, that dynamic creates an additional incentive for them to stay in office for as long as possible.