(Editor’s note: This is Part 2 of a two-part analysis, following Part 1: Why the ICC Should Respect Immunities of Heads of Third States.)
Who Will Join Duterte at the ICC? A Plea for Realism
The arrest of former Philippine President Rodrigo Duterte is a welcome and much needed success for the International Criminal Court (ICC). It is the first arrest for the ICC since 2022. It comes at a time when commentators are freely discussing how the ICC is on the precipice and are asking what will follow the Court’s slow-motion death. As important as this arrest is, the relieved and jubilant reactions since then also underline how precarious the Court’s situation now is.
Over time, the ICC has dug itself into a deep hole primarily by poor case selection, with too much emphasis on unrealistic cases against Heads of State and other leaders, coupled with a lack of respect for international law’s long-established rules on immunities. This combination has led to minimal results and maximal resistance from both States parties and third States. For the ICC to find the way up, the question after Duterte’s arrest should not be whether it can now move on to confront more powerful leaders, but rather how it can become more effective and have more trials.
ICC Case Selection: Too Many Symbolic Dead-Ends
The ICC’s longstanding focus on leadership cases – including cases against senior State officials – has not only brought it into questionable legal waters, but also led to minimal results. As a rule, leadership cases are the most difficult cases to prosecute. They often require complex evidence and generate the most resistance, since senior officials generally have more resources and support than others. Even leaving immunities aside, these cases are the least likely to yield arrests and convictions.
Some years ago, there was an impression that the ICC’s Office of the Prosecutor (OTP) would chart a more realistic course and would focus on cases that have a decent chance of leading to successful prosecutions. That approach has not borne out. The Court is now best known for a string of failed cases and unfulfilled arrest warrants for Heads of States and a mostly empty courtroom.
This situation is mostly by choice, not necessity. The lack of success at the ICC stems from a number of factors, some in the ICC’s control and some not. In my view, one of those factors is the error of the OTP focusing too much on the highest ranks of potential accused. A different approach would not solve all of the ICC’s challenges but would be an important step towards making it a more effective court.
Nothing in the ICC’s legal framework requires it to focus only on those most responsible. It is a self-imposed limitation. Surely, the argument that the ICC cannot prosecute everyone and therefore must be selective in its focus would be strong if the ICC was at risk of being overwhelmed. But the opposite is true. Yes, the Court has a complex mandate and no coercive powers of its own. But as has been pointed out many times by now, better results are possible for a Court with this mandate and these resources. What it requires is a stronger focus on realistic cases rather than symbolic dead-ends.
The fact that the ICC operates in a difficult environment and has too often not received the support it should have, even when it comes to arresting “small fish,” makes it all the more important to focus on situations where there is a reasonable prospect of success and on cases that are likely to succeed. As far as we know, that is not happening. Public arrest warrants from the ICC are sparse, certainly when compared to national practice for the same or comparable crimes, and most have clearly not been selected based on their chances of actual execution. It seems unlikely that arrest warrants under seal are very different. Duterte was the first arrest for the ICC in years, while there is regular information on potential suspects of crimes within the Court’s jurisdiction traveling the world.
It is a fundamental misconception that international prosecutors should focus on the most powerful defendants to be considered successful. For the International Criminal Tribunal for the former Yugoslavia (ICTY), the Duško Tadic case contributed more to the development of international criminal law than the case against former Serbian President Slobodan Milosevic. For the International Criminal Tribunal for Rwanda (ICTR), the case against former mayor Jean-Paul Akayesu was at least as significant as the case against former Rwandan Prime Minister Jean Kambanda.
Obviously, case selection must entail more than an assessment which cases can successfully be brought to the Court. But as explored in more detail here, legitimacy for the ICC can be found in many other factors than the high status of its defendants.
Effective international criminal law enforcement demands realism, patience, and a sense of humility. The ICC was never going to instantly change the world, and it will not end wars. What it should have done, was quietly build a line of high quality cases that would have contributed to an increasing body of convictions for international crimes, setting precedents for national courts, authoritatively interpreting new crimes, and incrementally changing perceptions of the international rule of law. Successful prosecutions establishing the facts can spur more cases in other jurisdictions and contribute to State responsibility cases, regardless of the stature of the defendants in the criminal case. If done right, such a movement can slowly change perceptions of the international rule of law and gradually raise the bar on who is within reach of the law, and who is above it.
The choice to ignore practical constraints and focus on high-level defendants means the ICC is now associated more with its inability to progress these cases than with positive results. (The Guardian opined that Duterte’s arrest “helps make the court and its mission feel less theoretical.”) That is a problem that can affect more than only its cases against Heads of State. While it is unknown what Italy would have done if the OTP had made different choices long ago, surely the decision to not execute an ICC’s arrest warrant is easier when many States have previously made the same decision, without consequences, than if one is the first and only State to do so.
Prosecutors, national or international, should focus most of their time and resources on cases where they can achieve results. There are good reasons to occasionally bring cases which are more symbolic than realistic, but these must be exceptional. Symbolic confrontations have little value if they are not followed up by results in the courtroom. Prosecutors should avoid creating a general impression that cooperation is optional and lack of results is the norm.
The OTP has long been ignoring a fact that was apparent even to its most ardent supporters: that, in the words of Benjamin Ferencz, the ICC “manifests all the helplessness of a new born babe” and that the best that could be hoped for was that “given assistance, in time, it will mature and hopefully will become an increasingly powerful moral force in deterring terrible crimes that, in the past, were committed with impunity.” Instead, the Prosecutor is trying to fast forward to a stage of authority for which the Court neither has the credentials nor the political support and thus mostly collects grand symbolic gestures against individuals who will not see the inside of a courtroom anytime soon.
The lack of trials also affects the ICC’s ability to successfully prosecute leaders if it ever gets them to the courtroom. Prosecutors and courts need practice and routine to be efficient and successful. More complex cases often lean on facts, procedures, and precedents established in smaller cases. Like the mountaineer who insists that he will only climb Mount Everest and snubs practice on smaller mountains, an ICC aiming to tackle only an occasional leadership case is likelier to perish than to succeed. Thus, it remains to be seen whether the case against Duterte will be successful, or follow the unfortunate examples of senior Congolese leader Jean-Pierre Bemba (acquitted, and now again in government), former Côte d’Ivoire president Laurent Gbagbo (acquitted), and former Kenyan president Uhuru Kenyatta (charges withdrawn).
A Duty to Prosecute?
The OTP pursues a homeopathic version of international criminal law enforcement, with a minimal number of arrest warrants and even fewer trials, justified by the alleged need to focus only on the highest echelons of suspects. It is an open question how this can be reconciled with the duty to prosecute emphasized in the preambles of the Rome Statute. The kind of leadership cases that the OTP mostly focuses on is a small fraction of the potential prosecutions under its mandate. States have an obligation to investigate and prosecute all these crimes. If they substantially invest in the ICC as a necessary tool for fully effective prosecutions, why then do they accept the OTP refusing to do a productive job? Why is it acceptable for the OTP to limit its activities to the fraction of its mandate least likely to be successful? Any national prosecutor deciding to focus almost exclusively on the top one percent of his or her legally authorized mandate, resulting in hardly any cases at all, would be corrected. Why would it be acceptable for an international prosecutor with a mostly empty courtroom schedule to do so?
Achieving Actual Results
Neither Duterte’s arrest nor U.S. sanctions against the ICC should distract from the urgent need for change within the Court. Given its mandate and resources, one arrest every few years is far from enough for the ICC. The Court’s lack of trials is a matter of choice, not necessity. Its dominant focus on symbolic cases against Heads of States has ground the work of the Court to a near standstill and contributed to increased resistance among States against the effective enforcement of international criminal law. States parties to the ICC should generally be deferential to the Court, and some rallying around the flag in current times is understandable and justified, but silence about the Court’s persisting fundamental problems does not help anyone. Saving the ICC requires the Court tackling more problems than described in this article and my recent contribution on immunities. But rigorous respect for international law and a realistic case selection policy aimed at a full implementation of its mandate would make an important contribution to achieving actual results.