The court risks undermining its own authority by seeking to claw back jurisdiction in a sovereign state that has rejected it — as in the case of former president Rodrigo Duterte
Rodrigo Duterte, the former president of the Philippines, was arrested earlier this month and transported across the world into the custody of the International Criminal Court on a warrant alleging crimes against humanity between 2011 and 2019 during the country’s “war on drugs”.
The move has triggered a backlash, with some Philippine offcials claiming that Duterte has been abducted at the behest of a foreign organisation.
Only one year earlier, the Philippine government stated that it did not recognise the jurisdiction of the court, considering it
“a threat to our sovereignty”.
Fast forward a year and that same government, under the same leadership, has surrendered to that threat and handed over Duterte.
The court has jurisdiction over nations that have signed the treaty that established the body, the Rome Statute. The Philippines is no longer a signatory, having withdrawn from the statute and the jurisdiction of the court in 2019.
However, the court insists that it retains jurisdiction to try international crimes that occurred in the Philippines while the state was a party to the statute — even though it did not authorise the commencement of any investigation until September 2021, more than two years after the Philippines had withdrawn.
The court is meant to be a tribunal loyal to the principle of complementarity. It is intended to complement, not replace, national criminal justice systems. The Philippines has its own functioning criminal justice system, and there appears to be no bar, in principle or in practice, to prosecuting Duterte in the local courts.
In protest at this alleged interference by the Hague court, the Philippines’ most senior government lawyer, the solicitor-general, Menardo Guevarra, has refused to represent Manila in legal proceedings relating to Duterte’s arrest and transfer, stating that:
“the ICC is barred from exercising jurisdiction over the Philippines and the country’s investigative, prosecutorial and judicial system is functioning as it should”.
The impression left is of the ICC grasping for its own jurisdiction. The instinctive reaction of those who care about the long-term strength and sustainability of international criminal law should be to recoil.
In seeking to claw back jurisdiction from the domestic system of a sovereign state that has firmly rejected it, the court risks undermining its own authority, independence and impartiality, and weakening further the already fragile ecosystem of international criminal law.
This is not the way to win signatories to the Rome Statute, nor to win back those who have departed from it.
Eleanor Stephenson is a barrister specialising in international criminal law and human rights. She acts in a range of Chambers’ practice areas including extradition & international law, sanctions, and public inquiries & inquests, and general crime.
This article was published in The Times on 27 March 2025, written by Jonathan Rees KC, Apex Chambers & Eleanor Stephenson, 5 St Andrew’s Hill.
