{"id":143346,"date":"2025-03-25T11:39:55","date_gmt":"2025-03-25T10:39:55","guid":{"rendered":"https:\/\/www.justiceinfo.net\/?p=143346"},"modified":"2025-04-01T15:47:59","modified_gmt":"2025-04-01T13:47:59","slug":"duterte-arrest-icc-prosecutor-performative-paradox","status":"publish","type":"post","link":"https:\/\/www.justiceinfo.net\/en\/143346-duterte-arrest-icc-prosecutor-performative-paradox.html","title":{"rendered":"Duterte\u2019s arrest: the ICC Prosecutor\u2019s performative paradox"},"content":{"rendered":"\n

Three times in the last 10 months, the International Criminal Court\u2019s prosecutor has made solemn statements about arrest warrants, not of \u2018small fish\u2019 \u2013 but of senior officials of sovereign states. He has done so amidst increasing <\/strong>criticism<\/strong><\/a>, a tightening <\/strong>budget<\/strong><\/a>, and <\/strong>sanctions<\/strong><\/a> by the United States of America. Now that the former president of the Philippines Rodrigo Duterte is in the box, scholar Lucy Gaynor exposes the paradox of this apparent performance for a Court in trouble.<\/strong><\/strong><\/p>\n\n\n\n\n\n\n\n

For each of his high-level arrest warrants, the International Criminal Court (ICC)<\/a> chief prosecutor Karim Khan has seen his announcements met with a flurry of responses. These responses have grown increasingly cynical about the reality of these officials ever sitting in any of the ICC\u2019s courtrooms in the Hague. Coupled with the prosecutor\u2019s office (OTP) ongoing attempt to have an \u2018in absentia\u2019 confirmation of charges hearing for 20-year-ICC-fugitive Joseph Kony, I expressed my own cynical exasperation to a colleague last month, that the letters \u2018I.C.C.\u2019 would soon stand for \u2018I Confirm Charges\u2019.<\/p>\n\n\n\n

As 2024 drew to a close, the Court\u2019s 2025 calendar perspectives remained anaemic \u2013 with just two judgements pending, one trial ongoing, and \u201cno prospect\u201d<\/a> of new trials. The Court\u2019s own President, Judge Tomoko Akane, told the Assembly of States Parties in December 2024<\/a>, that the challenges the ICC was facing could \u201cjeopardise its very existence\u201d. For all the historic and ongoing criticism<\/a> of the Court\u2019s penchant for prosecuting (African) rebels, the apparently performative pursuit of world leaders seemed like the final rallying cry of a Court on its knees.<\/p>\n\n\n\n

Success of the \u2018big fish\u2019 strategy?<\/h2>\n\n\n\n

Then, on Tuesday 11 March 2025<\/a>, the news broke that former president of the Philippines, Rodrigo Roa Duterte, had been arrested at Manila airport on an ICC warrant. Court observers variously announced<\/a> that such an arrest could be the first of many, and proclaimed<\/a> Duterte\u2019s ICC sojourn to be an \u201cimportant test case\u201d for those of other, current heads of state wanted by the Court. Does Duterte\u2019s arrest signal the success of the OTP\u2019s \u2018big fish\u2019 strategy? Can it quell the murmurs<\/a> of the impending death of the ICC?<\/p>\n\n\n\n

Is an arrest like Duterte\u2019s only possible when it is politically expedient for his opponents? His lawyer, Salvador C. Medialdea certainly thinks so, and told Presiding Judge Iulia Motoc as much on Friday 14 March, during Duterte\u2019s \u201cInitial Appearance\u201d hearing. \u201cTwo troubled entities struck an unlikely alliance,\u201d he lamented, \u201can incumbent president [of the Philippines] who wished to neutralise\u201d Duterte and his legacy, and \u201ca troubled legal institution subject to delegitimisation and desperate for price cuts and a legal show\u201d.<\/p>\n\n\n\n

The legal and political issues around prosecuting (former) heads of state will undoubtedly play out throughout these proceedings against Duterte. The criticism of the ICC will also undoubtedly continue, from legal and academic observers, as well as from those opposed to the Court for blatantly political reasons. Perhaps, at the moment, that is not the most interesting question. The ICC, for better or for worse, is a performative court. Khan himself<\/a> has told journalists that justice must be \u201cseen to be done\u201d. But for all the emphasis on the ICC\u2019s \u2018expressive\u2019 contribution to the discourse of justice and human rights, does Duterte\u2019s arrest prove that the Court is better off keeping its head down, and its mouth shut?<\/p>\n\n\n\n

Pomp and circumstance<\/h2>\n\n\n\n

In May 2024<\/a>, Khan stood behind a podium, flanked by two colleagues, in front of a blue ICC backdrop, and announced that \u201ctoday I am filing applications for warrants of arrest\u201d for Israel\u2019s prime minister Benjamin Netanyahu, alongside defence minister Yoav Gallant, and three senior Hamas leaders: Yahya Sinwar, Mohamed Diab Ibrahim Al-Masri (Deif), and Ismail Haniyeh. In November 2024, flanked by just one colleague, but still behind a podium and between two ICC flags, Khan proclaimed<\/a>: \u201cToday, I am announcing\u201d an application for a warrant of arrest for Myanmar\u2019s senior general and acting president, Min Aung Hlaing. In January 2025, Khan stood again between two ICC flags, and beside a colleague, and told the world<\/a> that his office had applied for warrants against the supreme leader of the Taliban, Haibatullah Akhundzada, and Afghanistan\u2019s chief justice Abdul Hakim Haqqani.<\/p>\n\n\n\n

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