For each of his high-level arrest warrants, the International Criminal Court (ICC) chief prosecutor Karim Khan has seen his announcements met with a flurry of responses. These responses have grown increasingly cynical about the reality of these officials ever sitting in any of the ICC’s courtrooms in the Hague. Coupled with the prosecutor’s office (OTP) ongoing attempt to have an ‘in absentia’ confirmation of charges hearing for 20-year-ICC-fugitive Joseph Kony, I expressed my own cynical exasperation to a colleague last month, that the letters ‘I.C.C.’ would soon stand for ‘I Confirm Charges’.
As 2024 drew to a close, the Court’s 2025 calendar perspectives remained anaemic – with just two judgements pending, one trial ongoing, and “no prospect” of new trials. The Court’s own President, Judge Tomoko Akane, told the Assembly of States Parties in December 2024, that the challenges the ICC was facing could “jeopardise its very existence”. For all the historic and ongoing criticism of the Court’s penchant for prosecuting (African) rebels, the apparently performative pursuit of world leaders seemed like the final rallying cry of a Court on its knees.
Success of the ‘big fish’ strategy?
Then, on Tuesday 11 March 2025, the news broke that former president of the Philippines, Rodrigo Roa Duterte, had been arrested at Manila airport on an ICC warrant. Court observers variously announced that such an arrest could be the first of many, and proclaimed Duterte’s ICC sojourn to be an “important test case” for those of other, current heads of state wanted by the Court. Does Duterte’s arrest signal the success of the OTP’s ‘big fish’ strategy? Can it quell the murmurs of the impending death of the ICC?
Is an arrest like Duterte’s only possible when it is politically expedient for his opponents? His lawyer, Salvador C. Medialdea certainly thinks so, and told Presiding Judge Iulia Motoc as much on Friday 14 March, during Duterte’s “Initial Appearance” hearing. “Two troubled entities struck an unlikely alliance,” he lamented, “an incumbent president [of the Philippines] who wished to neutralise” Duterte and his legacy, and “a troubled legal institution subject to delegitimisation and desperate for price cuts and a legal show”.
The legal and political issues around prosecuting (former) heads of state will undoubtedly play out throughout these proceedings against Duterte. The criticism of the ICC will also undoubtedly continue, from legal and academic observers, as well as from those opposed to the Court for blatantly political reasons. Perhaps, at the moment, that is not the most interesting question. The ICC, for better or for worse, is a performative court. Khan himself has told journalists that justice must be “seen to be done”. But for all the emphasis on the ICC’s ‘expressive’ contribution to the discourse of justice and human rights, does Duterte’s arrest prove that the Court is better off keeping its head down, and its mouth shut?
Pomp and circumstance
In May 2024, Khan stood behind a podium, flanked by two colleagues, in front of a blue ICC backdrop, and announced that “today I am filing applications for warrants of arrest” for Israel’s prime minister Benjamin Netanyahu, alongside defence minister Yoav Gallant, and three senior Hamas leaders: Yahya Sinwar, Mohamed Diab Ibrahim Al-Masri (Deif), and Ismail Haniyeh. In November 2024, flanked by just one colleague, but still behind a podium and between two ICC flags, Khan proclaimed: “Today, I am announcing” an application for a warrant of arrest for Myanmar’s senior general and acting president, Min Aung Hlaing. In January 2025, Khan stood again between two ICC flags, and beside a colleague, and told the world that his office had applied for warrants against the supreme leader of the Taliban, Haibatullah Akhundzada, and Afghanistan’s chief justice Abdul Hakim Haqqani.
Khan’s official video statement on Duterte was markedly different. Apparently seated, with no colleagues nearby, he told a camera that “well, the arrest [of Duterte] … is an important moment”. It seemed that he was answering some off-screen question, rather than launching into his own monologue. Of course, there was no need for a similar ‘breaking news’ style announcement: the world already knew of Duterte’s arrest. But the tone and the timing of the statement speaks volumes about the behind the scenes work of the OTP.
For one thing, Khan’s statement was made after the successful execution of a warrant which almost nobody knew about. On 10 February 2025, the OTP had submitted an “urgent application” for a warrant against Duterte, accusing him of five counts of crimes against humanity, committed in the context of his “war on drugs” first as mayor of Davao City, and after 2016 as president of the country. Concluding the urgent request, the OTP noted that barely two weeks before, the current government of the Philippines (led by Duterte’s rival Bongbong Marcos) had announced its willingness to arrest Duterte if a warrant came through Interpol. Citing the risk that over time, “the prospects of arresting Duterte will likely disappear”, deputy prosecutor Mame Mandiaye Niang asked for the warrant to be issued “under seal”. It was only a month later, when Duterte was taken into custody, that the existence of a warrant against him was confirmed by the chamber, only three days before his effective arrest.
A captive (but uncaptured) audience
Tactically speaking, the difference in approach is perhaps explained by the fact that Duterte, unlike Netanyahu, Min Aung Hlaing, or Akhundzada, is a former, not current, head of state. The risk of Duterte literally fleeing from the law was thus much greater. But expressively speaking, the differing approach raises the question: who are warrant application announcements for? Are they for the senior officials and heads of state they are aimed at? The Palestine warrant announcements reveal the futility of that approach. Within months of Khan’s announcement, all three Hamas leaders he had named were killed as a result of Israeli government targeted attacks. Hoping the threat of arrest will stay the hand(s) of violence is a big gamble, as the decades old ‘peace vs. justice’ debate reveals. Surely, the OTP does not presume that the officials in question will hand themselves in. They might be a captive audience to the workings of the court (as former Russian attempts to infiltrate it imply), but they remain uncaptured.
Are these announcements aimed at the allies of those senior officials, the governments who support them, or entertain them in their parliaments and palaces? That audience has also proven largely deaf. Already in 2015, South Africa failed to arrest Sudanese president Omar Al-Bashir during a summit of the African Union, despite its government having been made aware of a warrant against him six full years previously. More recently, Mongolia has failed to arrest Russian president Vladimir Putin during his visit to the country for a commemoration ceremony in September 2024. In July 2024, Benjamin Netanyahu, while under warrant from the ICC, addressed members of the US Congress in Washington D.C., receiving a standing ovation that lasted almost eight minutes.
For all the talk of the impact of global politics on the ICC, the cornerstone of criticism against the Court’s recent targeting strategies stems, it seems, from the Prosecutor’s floundering apparent attempts to impact global politics. This uneasy, half-embrace of politics by Khan might be both the main impetus behind its public arrest warrant application announcements, but also the crux of its ongoing struggles.
Are the announcements for victims? The ICC prides itself on being a victim-centred court, but Khan’s three statements regarding Palestine, Myanmar, and Afghanistan warrant applications were relatively light on victim-related discourse. In the Palestine warrant announcement, victims were referenced mostly as a source of evidence. In Myanmar, victims were given a glancing recognition. The Afghanistan announcement contained much more explicit references to the bravery of victims. In general, however, warrant applications are (by their very nature) focused on alleged perpetrators.
What aspect of justice must be seen, and by whom?
Are they, then, for us? The observers? Those thorns in Khan’s side, who criticise the inaction of the Court when it is silent, or its apparent precociousness when it is vocal? If that is the case, the Duterte warrant and arrest process provides perhaps the most complicated challenge to the idea that justice “must be seen to be done”. What aspects of the justice process must be seen, and by whom, to make them as effective as possible? Perhaps warrant application announcements provide only fuel to the fire of criticism, whereas unnecessary redactions and private sessions constitute genuine hindrances to the visibility of justice. Or perhaps, despite everyone’s best intentions, we really are only sated when we get retributive outcomes: arrests, and convictions.
The ICC’s ‘successes’ and ‘failures’ reflect not only a struggling Court, but also the biases, politics, and blind spots of those who follow it. Duterte’s arrest, and September’s confirmation of charges hearing will indeed prove a testing ground for the Court. Considering the OTP has (at least) five further heads of state in its sights, it might be worth dissecting not only the ICC’s triumphs and tribulations, but, procedurally speaking, what gets classified as a success or failure, to whom, when, and why. Justice must, indeed, be “seen to be done”, but the messy, slow, and at times misguided process of working towards it is perhaps a bit more difficult to stomach.
Lucy J. Gaynor is PhD Researcher at University of Amsterdam and NIOD Institute for War, Holocaust, and Genocide Studies, examining the construction of historical narratives within international criminal trials.
