A former prosecutor thinks Vladimir Putin and Benjamin Netanyahu may never face the ICC
The ICC accused Russian President Vladimir Putin of the war crime of illegal deportation of children from Ukraine. (Reuters/pool: Yuri Kochetkov)
Five days after the International Criminal Court (ICC) issued an arrest warrant for former Philippines president Rodrigo Duterte in March for crimes alleged to have taken place during his "war on drugs", he was arrested and handed over to the courts in The Hague.
International observers will be closely watching the trial and wondering if this marks the beginning of a new chapter for the ICC.
When it was formally established in 1998, the ICC's 120 member states hoped to hold perpetrators of war crimes accountable.
But the issue of an arrest warrant in 2023 for Russian President Vladimir Putin and, more recently, Israeli Prime Minister Benjamin Netanyahu has prompted some world leaders to question the court's power to successfully prosecute alleged war crimes.
US President Donald Trump has gone one step further, calling the ICC's warrant for the Israeli prime minister a "dangerous precedent".
He has signed an executive order imposing sanctions on the court, including financial and visa limitations on individuals who assist ICC inquiries, over its investigations of Israel.
U.S President Donald Trump welcomes Israeli Prime Minister Benjamin Netanyahu at the entrance of the White House in February 2025. (Reuters: Leah Millis)
Neither the US, Russia or Israel are members of — or recognise — the ICC.
Until Mr Duterte's arrest, the Russian president and Israeli prime minister were the only elected leaders to have arrest warrants issued by the ICC against them.
But will either eventually make it to the dock? And what does all this mean for international criminal justice?
How the ICC changed the conversation on war crimes
When former ICC prosecutor Alex Whiting graduated from law school in 1990, international criminal justice did not exist.
But in the 30 years since, tribunals have been held for the former Yugoslavia, Rwanda and Sierra Leone, and the ICC was established in The Hague.
Alex Whiting, former prosecutor at the International Criminal Court, has witnessed first-hand how leaders can be charged, arrested, tried, convicted and sentenced. (Supplied: Asia Kepka)
Dealing with war crimes that took place during the conflicts in the Balkans in the 1990s, the International Criminal Tribunal for the former Yugoslavia alone indicted 90 individuals with a range of crimes, including genocide and crimes against humanity.
A Harvard law professor, Mr Whiting was lead counsel for the Yugoslavia tribunal, and he has overseen investigations and prosecutions for not only the ICC but also the Kosovo Specialist Prosecutor's Office. He's witnessed first-hand how leaders can be charged, arrested, tried, convicted and sentenced.
"One of the big accomplishments of international criminal law in the last 30 years is that it has changed the conversation," he told an audience at a recent University of Tasmania event, recorded by ABC Radio National's Big Ideas.
"Now, whenever there is a conflict, we talk about whether war crimes are being committed, and who might be responsible, and what the evidence might be for those crimes.
"[For example] when somebody — who shall go unnamed — suggests moving the civilian population out of Gaza, we know what that is. That's forced displacement, it's a crime of ethnic cleansing, and everyone talks about that and recognises that."
Donald Rothwell, a professor of international law at Australian National University, believes the ICC is working as it was intended but acknowledges its shortcomings.
"This [arrest warrant for Netanyahu] really represents a maturing of the work of the International Criminal Court, which initially came under a lot of criticism because many of its initial investigations and inquiries and trials related to African political and military leaders," he told ABC Radio National's PM in November.
The International Criminal Court in The Hague, Netherlands has been criticised for its effectiveness. (Supplied: International Criminal Court)
'Weak by design'
Professor Whiting acknowledges that "we're in a very difficult moment", despite this evolution in international justice.
"Around the world, nations have turned against international institutions, international solutions, international agreements, and they are losing faith and diminishing their support for institutions like the International Criminal Court," he says.
As for the sanctions imposed on the court by the United States, he describes them as "abhorrent and a scandalous violation of the rule of court" but concedes other countries are also losing confidence in the Hague institution.
"The International Criminal Court, like every other international criminal tribunal, is weak by design," he says.
"It's a creature of the [member] states, and they only gave the court certain powers but not many powers. It does not have its own police force, for example.
"It is entirely dependent on states … to do its work, to gather evidence, to get arrests. It has no independent power of its own."
It also relies on the support of its members states.
"[The International Criminal Tribunal for the former Yugoslavia] succeeded because it had strong and sustained support from Europe, the United States and from the region itself to do its work," Professor Whiting says.
The same cannot be said for the ICC's case concerning Libya, whose warrant in 2011 for Saif Gaddafi, son of Libyan's late dictator Muammar Gaddafi, has not been honoured by Libya.
"We had strong support initially, but it was not sustained. It lasted for about six months, and the court has not had a single case out of Libya as a result," he explains.
Putin made his first visit to a member state of the ICC since he was indicted on a charge of war crimes, but faces little threat of arrest in Mongolia. (Sputnik via Reuters: Natalia Gubernatorova)
In a recent display of the ICC's weakness, Hungarian Prime Minister Viktor Orbán announced Hungary's withdrawal from the ICC as the Israeli prime minister arrived in the country for a state visit.
And late last year, Mongolia failed to take Mr Putin into custody when the Russian president visited the ICC member state.
"State parties are obligated to arrest anybody who is charged by the court [and] who comes on their territory. But Putin went to Mongolia, a state party, [and] Mongolia did not arrest," Professor Whiting says.
"Now states are indicating that if Netanyahu comes to their state, they will not execute their arrest warrant. That's true for Poland, Hungary, France, Germany, Italy … and other states are taking this into consideration.
"If these cases do not result in arrests — if they are nothing more than a press release [and] an arrest warrant that will never be executed — how does that affect our legitimacy?
Former Philippines president Duterte appears before the International Criminal Court. (Supplied: International Criminal Court)
"The court needs to show that it can succeed for it to go forward, for the states to continue to invest in this project, to continue to believe in this project."
But according to the former ICC prosecutor, the court has struggled on this measure.
"In its 20 years or so of cases, it has only had five convictions, and those have been against rebel leaders in the DRC [Democratic Republic of Congo], Mali and Uganda," Professor Whiting says.
The ICC's custody of the former Philippines president, who is the first Asian former head of state to face trial in The Hague, may mark a turning point for the court.
According to Professor Whiting, his arrest signals a significant win for the ICC at a critical time.
"It comes at a moment when the court was under enormous pressure and had few cases in the pipeline.
"In the cases of Putin and Netanyahu, the court rushed arrest warrants with almost no chance of arrests and made them public, turning them into high-profile failures."
The ICC has issued arrest warrants for the Israeli Prime Minister Benjamin Netanyahu for alleged crimes against humanity and war crimes committed during the Israel-Gaza war. (Reuters: Jacquelyn Martin)
Netanyahu or Putin to face court?
Professor Whiting is not so sure if either Netanyahu and Putin will face prosecution.
"It's widely acknowledged, and I think it is a certainty, that neither Putin nor Netanyahu will ever be arrested and brought to The Hague for justice," he says.
Professor Rothwell, however, believes that in time both will eventually be taken into ICC custody.
"Often this is the way in which international criminal law plays out in terms of very high profile accused persons. It often takes a period of time for those persons to be brought to trial but eventually they are brought to trial," he says.
"It's just not a very quick and speedy process similar to that that we're used to in our domestic legal systems.
"So, I think the real issue here is what happens when Netanyahu ends his political life?
"There [also] needs to be an appreciation that a change in the domestic political situation within an individual state can see a change in position towards the ICC and standing ICC arrest warrants.
"This has recently been highlighted by the change in position by the current Marcos administration in the Philippines, resulting in the recent arrest of former Philippine president Rodrigo Duterte.
"A change in the political situation in Russia that could see President Putin removed from power could lead to a situation whereby he is arrested and taken to The Hague for an ICC trial."