What Duterte's potential withdrawal could mean for the ICC

Just one day after Russia's departure from the International Criminal Court, Philippine President Rodrigo Duterte has threatened to follow suit.

Before flying to Peru for the annual summit of Asia-Pacific leaders, Mr. Duterte aligned himself with Russia in its decision to leave the tribunal. Critics have argued that the leader could be charged by the court over his war on drugs, which has killed thousands in the past few months. The embattled leader also criticized US influence in the United Nations, and indicated that he might one day leave that organization as well.

"You know, if China and Russia would decide to create a new order," Duterte said, "I would be the first to join."

Duterte’s anti-drug campaign, which has killed more than 4,000 suspected addicts and dealers since July, according to the Associated Press, has been decried by human rights advocates. Meanwhile, Duterte has criticized the ICC for focusing too much on violations in the Philippines – "we the small ones are the only ones being beaten up," he said – while bombings claim thousands of lives in Syria and Iraq.

The ICC was founded in 2002 to prosecute individuals for international war crimes, genocide, and crimes against humanity. At that time, African nations were among the most supportive of the court's cause. But in recent years, many have called the Netherlands-based court "anti-African" – in the court's first six years, it only prosecuted crimes in the African continent.

Earlier this year, the ICC opened its first case outside of Africa: an investigation of the Russia-Georgia war of 2008. On Wednesday, Russia announced its intent to leave the tribunal. 

The withdrawal may also relate to Russia's "temporary occupation of Crimea," which was condemned in a recent UN report.

"Until now, countries have joined the Court but none have left," said Alex Whiting, a professor at Harvard Law School who formerly worked in the prosecutor's office at the ICC, in an interview with The Christian Science Monitor on Wednesday. "These withdrawals might make it easier for states to leave the Court in the future if there is a risk that they will fall under investigation, and that would in turn seriously undermine the legitimacy of the Court."

The departure of the Philippines could increase that risk, particularly at a time when Duterte as seen as a destabilizing political force in the Pacific, as the Monitor's Michael Holtz reported last month:

Analysts say Duterte's aggressive push to distance the Philippines from the US has injected new uncertainties into a region already brimming with tension. China has been increasingly assertive in recent years in its claims of sovereignty over most of the South China Sea, constructing military facilities and artificial islands in the area. That has angered many of its neighbors, including Vietnam, Malaysia, and, until now, the Philippines. The US has also intensified its pushback, conducting four "freedom of navigation" patrols over the past year to challenge China's claims – most recently on Oct. 21.

ICC departures could complicate international law enforcement, analysts say, since it's not clear how the court will prosecute cases in countries that choose to leave. The court works like a stoplight, its first prosecutor, Luis Moreno Ocampo, told the Monitor last month: It cannot always prevent or punish crimes against humanity because "sometimes the cars stop, and sometimes they don't."

"South Africa is tearing down the traffic light," Moreno Ocampo said. "My prediction is that there will be more accidents. The question is not whether the ICC needs Africa; it's Africa that needs the ICC."

ICC prosecutors have said that they will continue to move forward on existing cases. In the meantime, the court may even be able to win back leaving nations by enlisting the support of non-members. But the court may also need to adjust its approach.

"The court may have to do smaller cases, or cases that are innovative, like the prosecution of Ahmad Al-Mahdi in Mali for the destruction of religious and cultural property in Mali," Mr. Whiting told the Monitor.

This report includes material from The Associated Press.