Former Philippine president Rodrigo Duterte was arrested when he returned to Manila from Hong Kong and was transferred to the International Criminal Court (ICC) in The Hague, Netherlands, for crimes under the Rome Statute. Such an act seems to be the realization of international justice, but it also highlights the difficulties in prosecuting human rights violators.
In 1998, more than 100 countries ratified the Rome Statute, and in 2002, the ICC was established in The Hague as the institution to investigate international crimes. The biggest difference between the Rome Statute and traditional international conventions is that it shifts accountability for international crimes such as aggression, war, human rights violations and genocide from state compensation to criminal punishment of natural persons, in order to prevent butchers from hiding behind government machinery and avoid accountability.
Since those who violate human rights must be in high positions in the country, it is not easy to find written evidence of ordering massacres. Therefore, Article 28 of the Rome Statute stipulates that if there is a superior and subordinate relationship where superiors give orders to subordinates and they are aware of the atrocities committed by their subordinates, but fail to exercise control properly over such subordinates, they would be held accountable. This is to prevent those in high positions from hiding behind the scenes to evade legal sanctions.
Moreover, according to paragraph 2 of Article 33, subordinate civil servants have no obligation to obey superior orders that are against humanity. If they obey and carry out the orders, they cannot be exempted from responsibility by claiming that they were only following orders. All these regulations are to prevent offenders from shirking responsibility.
After Duterte took office in 2016, he launched a large-scale anti-drug campaign and authorized the police to shoot those who resisted arrest without trial, resulting in thousands of deaths. The ICC hence issued an arrest warrant for Duterte in 2019 for crimes against humanity. He was arrested by Philippine police on March 12 and transferred to the ICC, so that the Rome Statute would not become empty talk.
However, the arrest also exposed a fundamental problem: In the absence of enforcement, prosecution of international crimes relies on the active cooperation of the relevant countries.
Therefore, if the criminals still hold high positions, no matter how many arrest warrants are issued, it is unlikely to help. The arrest warrant for Duterte was issued as early as in 2019, why did the Philippine government only execute it now? Imagine if Duterte still had a harmonious relationship with Philippine President Ferdinand Marcos Jr, it is doubtful whether he would be arrested.
The same could be applied to Russian President Vladimir Putin. The ICC issued an arrest warrant for Putin at the start of the Russian invasion of Ukraine in 2022, but Russia withdrew from the Rome Statute in 2016. Putin is still president and his regime is stable.
Now, with US President Donald Trump’s mediation, Russia and Ukraine are engaged in ceasefire negotiations. The ICC’s desire to hold Putin accountable seems even more like a vain hope.
Wu Ching-chin is a professor and chair of Aletheia University’s Department of Law.
Translated by Lin Lee-kai
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