Duterte’s Arrest, the ICC, and the Politics of Accountability

[Dr Nina Araneta-Alana (she/her) is a Postdoctoral Fellow at the Australian National University (ANU) under an ARC fellowship, where her research examines state engagement with and backlash against the international legal order]

The arrest of former Philippine President Rodrigo Duterte by the International Criminal Court (ICC) is a moment of rare consequence in the often-elusive pursuit of accountability for heads of state. The international legal order, so frequently dismissed as toothless when faced with realpolitik, has in this instance cut through the layers of state sovereignty to hold a former president accountable. 

More than an indictment of Duterte, his arrest is also a vindication of the ICC itself, especially as the court has spent years under siege from critics questioning its effectiveness. At the same time, this development reveals the intricate and sometimes uncomfortable dance between international and domestic legal systems. The Philippine government, by choosing to surrender Duterte, paradoxically asserts and relinquishes its jurisdiction in the same act. This moment forces reflection not only on the ICC’s resilience but also on the failures of domestic legal institutions. 

But beyond the legal and political intricacies, Duterte’s arrest also carries a deeper message: a warning to populist strongmen that they, too, can eventually be held to account. This is a lesson with striking relevance today, as populist movements rise once again.

The ICC’s Resilience 

For years, the ICC has faced questions about its ability to hold perpetrators accountable. Many states have sought to delegitimize it, casting it as an instrument of foreign interference. The ICC’s track record has been uneven at best, with a mix of high-profile failures and occasional successes. Skeptics have pointed to the withdrawal of states from its jurisdiction, the reluctance of powerful nations to cooperate, and the lengthy, cumbersome nature of its proceedings. As such, Duterte’s arrest proves that the ICC is not as powerless as its detractors claim. If anything, this moment is a reminder that international law, though slow-moving, is not entirely ineffective. It can still command the cooperation of states and law enforcement bodies when the conditions are right.

This is where the role of Interpol and state authorities becomes fascinating. The ICC itself has no police force; it relies on a web of international cooperation to enforce its warrants. In Duterte’s case, the system worked, notwithstanding the state’s withdrawal from the ICC in 2018. His name was placed on an Interpol Red Notice, and the Philippines, which had already severed ties with the court by its withdrawal from the Rome Statute in 2018, executed the arrest. This underscores a critical reality: the ICC is only as strong as the willingness of states to uphold its authority.

A Question of Jurisdiction and Sovereignty

There is a legal irony in Duterte’s arrest. In surrendering him to the ICC, the Philippine government is at once exercising and relinquishing its jurisdiction. The state retains the power to decide whether to enforce an ICC warrant, but in doing so, it also cedes its own authority to prosecute Duterte domestically.

This raises an important question: Why did the Philippine judiciary not act first? The country’s legal system had the tools to hold Duterte accountable for the thousands of extrajudicial killings under his brutal war on drugs. Under the Revised Penal Code and Republic Act No. 9851, Duterte could have been prosecuted domestically. However, there have been no substantive efforts to hold him accountable under these statutes, reinforcing the ICC’s assessment under the ‘unwilling or unable’ standard (Article 17, Rome Statute). Rather than seeing a reckoning through its own courts, the Philippine government essentially deferred the problem to the ICC.

This is a familiar pattern in global justice, a phenomenon of states ‘outsourcing’ their problems to international institutions. Instead of dealing with the messy realities of prosecuting a powerful figure domestically, it is often politically expedient to allow an international body to take on the burden. The ICC thus becomes a mechanism not just for enforcing international law but also for alleviating domestic political pressures. In this case, the Marcos administration avoids the fallout of prosecuting Duterte at home while still being able to claim that justice is being done.

The Politics of Implementation: Marcos’ Role in Duterte’s Arrest

Duterte’s arrest was never inevitable. It could have remained unenforced indefinitely had the Marcos administration chosen to ignore the warrant. It could have deferred to local courts on questions of  validity given the state’s withdrawal from the Rome Statute. This highlights an uncomfortable truth: international justice depends not just on legal mechanisms but also on political calculations. The decision to comply with the ICC arrest warrant is as much about domestic political interests as it is about upholding the rule of law.

One possible explanation is a desire to distance Marcos Jr. from Duterte’s legacy. Marcos Jr. has, at times, attempted to present himself as a break from the more violent and controversial aspects of his predecessor’s rule. Handing Duterte over to the ICC serves that narrative, signaling a return to international norms and a more palatable form of governance.

However, a more apparent factor could be the political falling out between Marcos Jr. and Duterte. The alliance that once helped Marcos Jr. secure the presidency in 2022 has since fractured, with Duterte and his allies becoming some of the most vocal critics of the administration. Duterte has repeatedly attacked Marcos Jr., even going so far as to call him a “weak leader” in public statements. The divide between their camps has further intensified following the impeachment of Vice President Sara Duterte. Once expected to bridge the gap between the Marcos and Duterte factions, Sara Duterte has instead contributed to escalating tensions, issuing veiled threats against Marcos Jr. and openly criticizing his administration. Her impeachment has been perceived as a direct political maneuver in order to dismantle the Duterte influence in Philippine politics.

This shift in political dynamics may have influenced the Marcos administration’s willingness to allow Duterte’s legal troubles to proceed rather than shield him from accountability. Where once Duterte’s political clout might have discouraged compliance with the ICC, his waning influence and public rift with Marcos Jr. may have removed a major obstacle to his arrest.

There is also the possibility of international pressure. The Philippines’ relationship with the international community suffered under Duterte’s presidency, particularly in the realm of human rights. Cooperating with the ICC could be a strategic move to restore diplomatic standing and re-engage with institutions that had previously condemned the Duterte administration’s excesses.

It is apparent that the Marcos administration’s decision is an act of political calculus as much as it is one of legal principle. If the political costs of compliance had been too high, it is doubtful that the government would have followed through. With Duterte no longer an indispensable ally, but rather a political adversary, the barriers to enforcement may have significantly diminished.

A Warning for Populist Leaders: The Consequence of Strongman Politics

Duterte’s arrest is not just about the Philippines. It is a cautionary tale for populist leaders who wield power through fear, suppression, and the erosion of democratic norms. Leaders like Duterte thrive on impunity, believing that institutions can never truly hold them accountable.

But history suggests otherwise. From Slobodan Milošević to Omar al-Bashir, strongmen who once seemed untouchable have eventually faced justice. Duterte’s case adds to this growing precedent. It is a reminder that populist leaders who weaponize state power, dismantle democratic checks and balances, and violate human rights may, one day, find themselves answering for their actions.

This is particularly relevant today as Donald Trump makes a political comeback in the United States. Trump, like Duterte, built his appeal on populist rhetoric, disdain for institutions, and a belief in his own political invincibility. Yet Duterte’s arrest shows that populist leaders can be held to account, even those who once seemed untouchable. If Duterte, once a widely popular president, can be arrested, it serves as a reminder to other populists that legal mechanisms can outlast their reigns. Justice may be slow, but it is not always absent. As the Martin Luther King, Jr. adage goes,  the arc of the moral universe is long, but it bends toward justice

What This Means for International Justice

Duterte’s arrest represents a rare victory for the ICC, but it also highlights the fragility of international justice. The court relies on a delicate balance of legal authority and political will. The system worked in this case, but it did so not because of the ICC’s inherent strength but because the Philippine government saw an advantage in cooperating.

At the same time, the prolonged delay, and effective failure, in prosecuting Duterte within the Philippine judiciary should not be overlooked. If international law’s role is to step in when domestic systems fail, then this case is a clear example of that principle in action. Ultimately, Duterte’s arrest is not just a moment for the ICC. It is a signal to the world that even strongmen can fall, and a warning to those who still believe they are beyond the reach of justice.