Is Going ‘Glocal’ The Key to The ICC’s Success?

On 11 March 2025, the International Criminal Court (“ICC”) arrested Rodrigo Duterte, former President of the Philippines, based on an arrest warrant alleging his perpetration of crimes against humanity in the context of the ‘war on drugs’ he waged between 2011 and 2019 in his capacity as head of the Davao Death Squad and then as President of the Philippines.

The news made the headlines worldwide for two good reasons. First, the number of (former) heads of State who have been arrested and tried before the ICC on allegations of international crimes committed while in office can be easily counted on the fingers of one hand. Second, and most importantly, the execution of Duterte’s arrest by the Philippines authorities and his handover to the ICC in The Hague, where the former President is currently detained following his first appearance before the court, represent at first sight a sudden change of pace in the attitude of the international community, or at least of part thereof, towards the court and its activities. Such a change of pace has been positively welcomed by those who believe that international criminal law can and should still play a pivotal role in nowadays international relations. This perspective is especially significant considering the troubled historical circumstances that international criminal law as a whole and the ICC, in particular, are facing after the highly symbolic but equally ineffective arrest warrants recently issued against Russia’s Vladimir Putin and Israel’s Benjamin Netanyahu. When compared with the resistances opposed by most states to one or both such arrests, the swift cooperation offered by the Philippines in the context of Duterte’s arrest, certainly, is remarkable.

However, a closer look at the events immediately preceding the arrest of Duterte suggests that his handover to the ICC is more linked to a power feud between the two most influential families of the Philippines, the Duterte and Marcos clans, than to a genuine will to let international criminal justice follow its course. In this regard, Duterte’s lawyer, Nicholas Kaufman, recently told AFP (1) that "the politics in [the Philippines] basically ended up in a situation where they needed to get him out of the picture. The incumbent government [led by Ferdinand Marcos] did not want him in the picture anymore".

Furthermore, it bears noting that in 2019 the Philippines, at the time led by Duterte himself, quit the Rome Statute - the 1998 founding treaty of the ICC - and the Marcos government never really expressed any interest in rejoining it nor in supporting and cooperating to any other judicial activity of the ICC.

It therefore seems that domestic motives played an important if not crucial role in the execution of an arrest warrant otherwise most likely set to remain little more than an empty form of words, similarly to those issued against Putin and Netanyahu.

For these reasons, it may be just too early to celebrate the newfound authority of the ICC in the international relations’ landscape.

However, it is certainly not too early for a lesson to be drawn from what has happened over the past few weeks in Manila: at a time when the established international order seems to converge towards deliberately stalling the proper functioning of international criminal justice and institutions, breaches in such metaphorical barrier are unexpectedly opened by domestic politics and developments thereof. It is a powerful reminder that global perspectives are sometimes shaped more by local episodes and characters than by the international relations’ usual suspects, i.e. the United Nations Security Council (“UNSC”), its five permanent members, the NATO, the Western bloc, the European Union, etc.

Photo by Jonathan Cooper on Unsplash

This reading is confirmed by the fact that Putin and Netanyahu, two leaders of two countries with little in common, are thus far escaping their arrest and surrender to the ICC thanks to, rather than in spite of, the international relations’ long-established order and way of functioning, which through a different set of alliances and power games is succeeding in the same result of stalling the court’s action on both cases. The best guarantees of Putin’s and Netanyahu’s freedom are indeed Russia’s veto power at the UNSC and that of Israel’s powerful allies as well as a network of trusted states which are ready to prove their friendship by evading their obligation under international law to execute the ICC arrest warrants. In this regard, it is worth recalling that both Putin, in September 2024, and Netanyahu, just a few days ago, undertook official trips to allied countries which are parties to the ICC without suffering any consequences as a result of Mongolia and Hungary, respectively, guaranteeing that they would not execute the ICC arrest warrants. Such guarantees emanating from traditional mechanisms of international relations would hardly suffice, should the domestic situation in Russia or Israel change to their leaders’ disfavour. Domestic upheavals or unexpected shifts in the countries’ internal politics seem to be the only way the ICC will ever be in a position to exercise its jurisdiction over Putin and Netanyahu.

Similarly but conversely, the Italian government’s recent decision to expel and repatriate Osama Elmasry Njeem, a Libyan citizen wanted by the ICC for war crimes and crimes against humanity allegedly committed against migrants in Libya, demonstrates once again how domestic issues are liable to affect the court’s capability to act even in situations, such as Libya’s one, that had been raised to its attention by nothing less than the UNSC.

While proceedings are ongoing at the ICC to determine whether Italy has violated its obligations under the Rome Statute by not surrendering the suspect, publicly available information allows for the inference that such a decision was dictated by internal political considerations. These considerations regard the impact that a surrender of Elmasry might have had on Italian citizens in Libya as well as on the control of future migratory fluxes. 

Not to mention the repercussions that any statements of Elmasry in any ICC investigation or trial might have had on Italian high-ranking politicians who are said to have long negotiated with him in the past with a view at limiting migrants’ arrivals on Italy’s southern shores. To no avail have the ICC and the international community rightly protested the release of the suspect: internal affairs, and considerations of the underlying repercussions by the Italian authorities, had already led to his release, and he will probably never be tried for his alleged wrongdoings. In the same vein, Omar Al Bashir, the former President of Sudan, wanted for crimes against humanity, war crimes, and genocide has been shielded from his arrest and transfer to The Hague not only by South Africa and Jordan by first and foremost the transitional government succeeding him in power in 2019, which promised to cooperate but has wavered between surrender to the ICC and domestic prosecution.

The question therefore arises whether the effectiveness of the ICC still depends on traditional international relations schemes or rather on much more straightforward domestic circumstances. Since the latter is capable of changing as well as being influenced much more rapidly than the former, an answer to this question goes to the very heart of the issue of how to ensure the survival and effectiveness of the ICC. Such an answer may perhaps coincide with the realisation that the success of international criminal law may require a ‘glocal’ approach which entails the departure from the old mindsets and mechanisms at the basis of the world order and international relations as we have known them until now.

Reference

1- Carter, Richard. (31.03.2025), ''Duterte lawyer: 'compelling' grounds to throw case out'' Available at: Agence France-Presse, http://doc.afp.com/38FZ3T2 (Accessed: 31.03.2025)

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