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The ICC case against Duterte’s drug war is on hold. That could hurt the court’s authority.

A new book on backlash politics explains what this means for international justice.

Protesters hold pictures of alleged victims of extrajudicial killings during a rally outside the Malacanang palace in Manila on June 30. (Aaron Favila/AP)

In a Nov. 18 statement, International Criminal Court (ICC) Prosecutor Karim Khan suspended the court’s investigation into alleged crimes committed during the Philippines’ war on drugs. By some estimates, 20,000 or more people have died since 2016, when Rodrigo Duterte became president and launched an extensive campaign against illegal drug use.

This decision just two months into the formal investigation highlights the ICC’s vulnerabilities in the face of backlash politics. Backlash politics can take many forms, from withdrawals from international courts to refusals to cooperate with the courts’ work to procedural and doctrinal obstructions, such as the suspension of investigations.

The Philippines/ICC situation demonstrates the many facets of backlash politics, as well as the broader implications that this type of pushback has for international justice. My research suggests that backlash undercuts the ability of international courts to provide accountability for perpetrators and justice for victims.

Why is the ICC investigating the Philippines?

In October 2016, the ICC prosecutor at the time, Fatou Bensouda, issued a statement regarding violence in the Philippines. She warned that the extrajudicial killings that were part of Duterte’s widespread crackdown on illegal drugs could fall under the ICC’s jurisdiction and that her office would be watching developments in the country closely.

Two years later, Bensouda’s office opened preliminary examinations into the situation. Preliminary examinations are not active investigations but rather a process to evaluate whether the ICC has the grounds to proceed to an active investigation.

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What was the Philippine response?

The Philippines government was quick to resist the ICC’s preliminary examination. Duterte, long an ICC critic, repeatedly argued that the Court is a biased institution with no authority over Philippine politics. He regularly threatened to leave the Rome Statute — the 1998 framework establishing the ICC — and encouraged other countries to do the same.

Duterte made good on his threats, and in 2019 the Philippines became only the second country to withdraw from the Rome Statute and leave the ICC. Although the Philippines no longer recognizes the ICC, the court still has jurisdiction over any possible crimes committed between 2011 — the year the Philippines ratified the agreement — and 2019, the year of withdrawal.

With that authority in place, Bensouda announced this past June that she would conclude the preliminary examination into the Philippines situation and asked the court to authorize opening an active investigation. Pre-Trial Chamber I of the ICC granted the Office of the Prosecutor this authority in September — meaning the full investigation could proceed.

What just happened?

Technically, the Philippines’ deferral complies with treaty law. According to Article 18 of the Rome Statute, a country has the right to request a deferral of the ICC’s investigations when its government also is attempting to investigate and try those responsible for the alleged crimes.

Consistent with Article 18, Philippine officials argued that national authorities could — and would — prosecute those responsible for the crimes under investigation at the ICC. In a Nov. 10 letter to the ICC prosecutor, the government of the Philippines argued, “The Court may only exercise jurisdiction where national legal systems fail to do so, which is certainly not the case in the Philippines.”

Human rights and victim advocacy groups rebut the assertion that the Philippine government would rigorously investigate the alleged crimes. Given that the orders for the war on drugs came from the top — from Duterte himself — it’s difficult to believe that the country’s judicial apparatus will provide much accountability.

For the ICC, here’s what’s at stake

Reading the Philippine request for a deferral and the prosecutor’s acquiescence solely along the lines of the Rome Statute obscures the backlash politics that have marked the Philippines situation at the ICC and the pursuit of international criminal justice more broadly.

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As I suggest in my new book, Saving the International Justice Regime: Beyond Backlash against International Courts, backlash against international courts can involve ostentatious moves, like the Philippines’ high-profile withdrawal from the Rome Statute. But the backlash can also be more subtle. Doctrinal and procedural challenges, such as the one that the Philippines has made in its deferral request, can similarly undermine international courts’ moral, structural and adjudicative authority.

By initiating what’s likely to be a long and convoluted series of delays, the Philippines is putting the ICC’s ability to conduct its work on trial. Even if the investigation proceeds, Duterte has promised to undermine the ICC’s authority at every turn. His legal adviser, for instance, has warned that “[the] government will not let in any ICC member to collect information and evidence here in the Philippines, they will be barred entry.”

This is not an empty threat. The ICC, like other international courts, relies on countries to provide access to witnesses and evidence. Without these elements, there can be no investigation, no trial and no justice.

The pushback from the Philippines has implications far beyond this case. Manila’s withdrawal from the Rome Statute, the threats to refuse cooperation and the initiation of bureaucratic and procedural delays all highlight and exacerbate the court’s vulnerability — and the ICC’s dependence on countries’ willingness to abide by its rules. In turn, this apparent vulnerability invites other opponents to usurp the ICC’s authority, not only in the Philippines but more broadly.

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Of course, it’s not just the ICC that has something to lose. Behind each investigation at the ICC are victims and their families. When the ICC is not able to bring perpetrators to account, these victims go without recourse or resolution. An international trial will never bring back a lost loved one, but a prolonged and drawn-out international investigation that never results in justice is only further punishment.

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Courtney Hillebrecht (@c_hillebrecht) is Samuel Clark Waugh Distinguished Professor of International Relations and director of the Forsythe Family Program on Human Rights and Humanitarian Affairs at the University of Nebraska, Lincoln. She is the author of Saving the International Justice Regimes: Beyond Backlash against International Courts (Cambridge University Press, 2021).