In an exclusive email interview with the Philippine News Agency, Michael Tiu, Jr., assistant professor at the University of the Philippines College of Law, shared insights into the ICC’s mandate, how it prosecutes former heads of state, and what this means for international human rights law.
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| International Criminal Court. (Wikimedia) |
The ICC was established under the Rome Statute to prosecute genocide, war crimes, crimes against humanity, and the crime of aggression. But it doesn’t automatically step in when these crimes occur. Instead, it operates under a principle called complementarity — meaning it only intervenes when a country is either unwilling or unable to investigate and prosecute cases on its own.
In former president Rodrigo Duterte’s case, the ICC’s jurisdiction remains a point of debate, however, Tiu explained: “The court determined that it still has jurisdiction because the matter had been under consideration before the Philippines’ withdrawal from the Rome Statute took effect.” This means that even though the country officially left the ICC in 2019, the case can still move forward because the investigation began while the Philippines was still a member.
The legal process behind ICC arrest warrant
Issuing an ICC arrest warrant is a multi-step legal process. It begins when the Prosecutor submits an application, which is then reviewed by the Pre-Trial Chamber. The judges assess whether there are reasonable grounds to believe the accused committed a crime under the court’s jurisdiction. If they determine an arrest is necessary, they issue a warrant.
But making an arrest isn’t always straightforward. “Since the ICC has no police force, it relies entirely on state cooperation,” Tiu pointed out. This means if a country refuses to arrest the accused, the trial cannot proceed. Unlike in some national legal systems, the ICC does not allow trials in absentia — so without an arrest, justice remains out of reach.
The challenge of holding high-ranking officials accountable
One of the biggest hurdles in prosecuting former leaders is actually bringing them into custody. The ICC depends on cooperation from its member states, as well as other countries where the accused might be found.
If a country refuses to cooperate, it could slow down or even block the proceedings. “The matter could be raised to the U.N. Security Council, but there would be minimal legal and diplomatic consequences unless obligations under Interpol cooperation come into play,” Tiu noted. This highlights a broader challenge the ICC faces - enforcing its rulings when political considerations outweigh legal obligations.
How the ICC assesses state’s own probe
The ICC only intervenes when it determines that a country isn’t taking meaningful action to investigate and prosecute crimes itself. To assess this, it applies the “same person, same conduct” test.
“The court uses the same person, same conduct test,” Tiu explained. If domestic proceedings fall short or appear politically motivated, the ICC can justify stepping in.
Why Duterte’s case matters for int’l justice
This case is about more than just one leader — it could shape how international justice works in the future. If the ICC successfully prosecutes Duterte, it sets a precedent that even leaders who withdraw their countries from the Rome Statute can still be held accountable.
“It signals that the international criminal justice project could work,” Tiu said. “It also shows that no one is above the law and that accountability is possible if states cooperate.”
That said, the ICC has long faced criticism, particularly for allegedly targeting leaders from specific regions. “It has received criticism for prosecuting only African nationals, but this has changed in the last decade,” Tiu noted. In recent years, the court has expanded its investigations beyond Africa, pushing back against accusations of bias.
The role of int’l cooperation
For the ICC to function effectively, it relies on cooperation from governments, international organizations, and even non-governmental groups. These entities play a role in everything from arresting suspects to providing evidence.
“International power can be used both to pressure states into cooperating with the ICC and to prevent them from surrendering accused individuals,” Tiu said. The United States, for example, has influenced other countries through non-surrender agreements, which prevent them from handing over individuals to the ICC. This kind of political maneuvering often complicates the court’s work.
Sensitive situation
Duterte’s case presents a politically sensitive situation. If an arrest warrant is issued and the government refuses to comply, it could strain the country’s relationship with international institutions and fuel domestic political tensions.
“It is a delicate relationship,” Tiu acknowledged. “But the government should ensure that both international law and the Constitution are followed.”
The outcome of this case will ultimately shape the credibility of the ICC. If the court succeeds in holding Duterte accountable, it could reinforce the idea that no one is above international law. (Edison Joseph Gonzales)
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