DU30 vis-à-vis ICC’s survival

While the lead counsel of former President Rodrigo Duterte has indicated extreme confidence in a compelling argument to convince the International Criminal Court (ICC) to dismiss the crime against humanity case against his client, he revealed other considerations that will intervene.

Nicholas Kaufman expressed his concern that the ICC, which is facing several issues undermining its credibility, including US sanctions, would be reluctant to give up such a high-profile case.

“My only fear is that this court is starved of cases at the present moment and might be loath to let a case like this go, to slip through its hands.”

The ICC’s moral high ground hinges on its ability to operate independently of political pressures, but its record suggests otherwise.

The United Nations Security Council, dominated by veto-wielding powers, exerts massive influence over the tribunal, including the referral or deferral of cases, injecting geopolitics into the court’s docket. At the same time, the US and its allies have successfully deterred investigations into their actions, while disproportionate scrutiny is applied to smaller nations.

This skewed standard contradicts the ICC’s claim to moral superiority, making it appear to be a tool of powerful states rather than a neutral arbiter.

Relentless criticism and threats further erode its integrity. US sanctions on ICC officials, such as those targeting Prosecutor Fatou Bensouda in 2020 and renewed in 2025, indicate the court can be intimidated.

Russia’s defiance of the 2023 arrest warrant for President Vladimir Putin and Israel’s rejection of 2024 warrants for Prime Minister Benjamin Netanyahu and former Defense Minister Yoav Gallant showcase how major players dismiss the ICC’s authority.

The ICC has faced persistent allegations of bias, particularly for focusing almost exclusively on African cases.

All of its convictions to date involve African nationals, prompting claims of neo-colonialism from African leaders and scholars.

The lack of investigations into Western powers or their allies, like alleged war crimes by US forces in Afghanistan or UK troops in Iraq, fuels the perception of a double standard.

The court’s decision to shelve the Afghanistan investigation in 2021, citing resource constraints as an excuse, while swiftly launching a significant probe of Ukraine in 2022, highlights the inconsistency in its operations.

Kaufman’s worry that the ICC might cling to the Duterte case out of self-preservation refers to the broader failures of the tribunal.

A court “starved of cases” and under fire could view a high-profile figure like Duterte as a chance to prove its relevance, especially after the Philippines’ withdrawal from the Rome Statute in 2019 left its jurisdiction contested.

Several cases it handled have collapsed due to lack of evidence or political interference.

The case against Kenyan President Uhuru Kenyatta, accused of orchestrating violence from 2007 to 2008 following the holding of elections, was dropped in 2014 amid allegations of witness tampering and lack of cooperation from Kenya.

Similarly, charges against Laurent Gbagbo of Côte d’Ivoire were dismissed in 2019 after years of trial, with the judges citing insufficient evidence.

These high-profile failures, which Kaufman is familiar with, cast doubt on the ICC’s competence and moral resolve.

Kaufman, thus, presented a point for ICC to ponder amid its campaign to maintain its relevance.

The international court’s desperation could backfire if it pushes forward despite weak legal grounding in the case against Duterte as it risks another high-profile blunder, further eroding its operational credibility.

ICC’s struggle to find space in the international justice system reflects a vicious cycle that highlights its failures: limited reach, selective justice, and enforcement woes.

Its legitimacy has been doubted while external attacks and internal constraints prevent it from overcoming its defects.

Lack of jurisdiction and his allegation of a kidnapping will be the main arguments of Duterte’s defense in the case in which the ICC itself will be in the global spotlight, affecting the court’s future.

Kaufman realizes that it is more the survival of the ICC rather than Duterte’s that is at stake in this historical process.

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