DU30’s globalization

Intentionally or not, former President Rodrigo Duterte’s transfer to the International Criminal Court (ICC) has placed him in international consciousness, which consequently may decide the future of the intrusive international justice system.

Several nations, including the superpower United States, have refused to be subjected to the ICC due to the jurisdiction question in which domestic processes would have to submit to the authority of the tribunal.

Asian countries are particularly apprehensive about the developments since most have their own misgivings about Western-initiated global institutions.

Duterte’s ICC detention has thrust him into the international spotlight, elevating the former Philippine president from a regional strongman to a figure whose fate may shape the future of the international justice system.

The arrest and ongoing proceedings mark a rare instance of the ICC apprehending a high-profile suspect, which contrasts with its struggles to enforce arrest warrants against figures like Russia’s Vladimir Putin or Israel’s Benjamin Netanyahu.

The ICC’s actions regarding Duterte have fueled broader skepticism about ceding sovereignty to an international tribunal.

The former Chief Executive’s supporters and legal team contend that the Philippines’ withdrawal from the Rome Statute in 2019 should exempt him from ICC oversight, yet the court asserted jurisdiction over alleged crimes committed before the withdrawal.

The debate on the extent of ICC’s ambit reinforces fears of the body being a Western tool imposing itself on unwilling nations, particularly when domestic squabbles lead to enabling its actions.

China’s indirect support for Duterte, urging the ICC to avoid “politicization,” underscores the regional unease, revealing fears that international justice could destabilize local political balances.

Dr. Lasse Schuldt, an Assistant Professor of Law at Thammasat University in Bangkok, views the proceedings against Duterte as reinforcing deeply held skepticism against the politicized international criminal justice system.

Southeast Asian countries have been particularly hesitant to join the ICC system, which Schuldt said stems from their concerns about undue external interference with national sovereignty.

At the Rome Conference in 1998, the Philippines and Thailand were largely supportive of the emerging Statute for the ICC, but the delegations from Indonesia and Vietnam stated that ICC jurisdiction should always require the consent of the respective state concerned. Representatives from Indonesia, Malaysia and Vietnam opposed the possibility of the Prosecutor conducting its own investigations without state referrals.

Indonesia and Malaysia also demanded a complete separation of the court from the “politicized Security Council,” referring to the United Nations body.

There was, thus, considerable worry that the ICC might become a political tool for external interference from other states, the prosecutor, or the UN Security Council.

Duterte is now considered a showcase of the ICC in its effort to salvage relevance amid its inability to act against powerful personalities and the sanctions that the United States has been working to impose on its officials.

To top it off, there’s the sexual misconduct scandal involving Prosecutor Karim Khan, who is being accused of inappropriate acts by a subordinate.

Malaysia’s abrupt U-turn on its path to ICC membership in 2019 was explained by concerns from the royal families about potential international exposure, which disregarded their immunity claims.

In Thailand, which had its own drug war in the early 2000s, the protection of the monarchy, both internally and externally, remains a key reference point to explain its reluctance to ratify the Rome Statute since the government’s signature in 2000.

To date, Cambodia and Timor-Leste are the only Southeast Asian countries that are parties to the Rome Statute, making the region the most underrepresented of all.

“The developments surrounding the arrest of Rodrigo Duterte are unlikely to increase Southeast Asian appetite for ICC membership — quite the reverse,” according to a regional analyst.

“Fearful of politicized interventions from outside, governments across the region watched as the Philippine government eliminated a powerful opponent with the help of an ICC arrest warrant,” Schuldt added. Political actors in volatile and polarized settings, such as those in Indonesia, Malaysia and Thailand, are concerned that they could eventually be targeted, depending on the prevailing political climate.

Duterte’s arrest may have the unintended consequence of accelerating the demise of the ICC, as countries, particularly in Asia, receive a wake-up call about the cost of allowing a foreign institution to intervene in domestic affairs.