THE communication lodged against Chinese President Xi Jinping before the International Criminal Court (ICC) for alleged crimes against humanity may not prosper, since the filing could be considered “futile,” Malacañang said on Saturday, March 23.
Presidential Spokesperson Salvador Panelo echoed President Rodrigo Duterte's stance that former Foreign Affairs Secretary Albert del Rosario and former Ombudsman Conchita Carpio-Morales have the right to challenge China's massive build-up in the disputed South China Sea.
The Palace official, however, stressed that the Duterte government does not need the help of “biased” ICC to resolve the sea disputes between the Philippines and China.
“Former Ombudsman Conchita Carpio-Morales and former Foreign Affairs Secretary Albert del Rosario may have the right to file the complaint against Chinese President Xi Jing Ping before the International Criminal Court as individuals over a perceived violation committed against their country or their countrymen,” Panelo said in a statement.
“[However], we do not need the help or disturbance of a biased tribunal known to politically prosecute heads of state, the very reason why powerful countries like the United States, China, Russia, and Israel, to name only a few, have either withdrawn their membership as State Parties from the Rome Statute or declined to be members of the ICC,” he added.
Del Rosario and Carpio, on behalf of Filipino fishermen “persecuted and injured” by China's massive island-building and occupation of islands in the South China Sea, filed a communication against Xi for allegedly committing crimes against humanity attributed to Beijing’s allegedly aggressive militarization of the contested waters.
The two former Philippine government official accused Xi and other Chinese officials of committing crimes against humanity for implementing Beijing's “systematic plan to control the South China Sea.”
The communication was submitted to the ICC on March 15, or two days before the Philippines's official withdrawal from the Rome Statute on March 17.
On Thursday, March 21, Duterte was confident that the Philippines's mended ties with China would not be strained by the move of Del Rosario and Carpio-Morales to file a communication against Xi.
Panelo said the two former officials could be motivated with “righteous indignation over the establishment of structures on some parts of the South China Sea which have been ruled to be rightfully belonging to us.”
“To their minds, the establishment of those structures endanger the environment as well as our fishermen,” he said.
Panelo, however, stressed that Del Rosario and Carpio-Morales were “not authorized to lodge a complaint against China at the ICC on behalf of the Philippines.”
He added that even if they were authorized, the Duterte administration's position was that the ICC “has never acquired jurisdiction over us.”
“Assuming that they are so authorized, the Philippines, like China, as we have said, is not a State Party to the ICC hence the latter cannot take jurisdiction,” Panelo said.
“Whether or not the case will prosper is another matter. It could be dismissed because China is not a member of the ICC, so is the Philippines. The filing of the complaint may be a futile exercise. The ICC has no jurisdiction over China,” he added.
China is not a party to the Rome Statute, a treaty that creates the ICC, but the communication states that the ICC can exercise jurisdiction over China for its “atrocious actions” in the South China Sea, particularly within Philippine territory.
Panelo cited that the former officials' argument was that Xi committed crimes against humanity resulting from acts which cause “environmental damage” in the South China Sea.
He however, noted that the Rome Statute does not include environmental damage.
“What it includes are murder; extermination; enslavement; forcible transfer of population; severe deprivation of physical liberty; torture; rape or sexual slavery; political, racial, religious, ethnic or gender persecution; enforced disappearances; or other inhumane acts causing great suffering or serious injury to physical or mental health,” he said.
“Hence, even assuming that the Philippines was a State Party when the complaint was filed, there could be an issue as regards the jurisdiction of the ICC,” he added.
Panelo also stressed that the Philippines and China are already engaged in a “diplomatic negotiation.”
“We reiterate that the Philippines under the Duterte Administration is engaged in a diplomatic negotiation, through a bilateral consultation mechanism, over the West Philippine Sea issue,” he said.
“The critics and detractors will have a field day criticizing the President in the event the case is dismissed by the ICC for lack of jurisdiction. They can claim that it was a mistake for the Philippine government to withdraw its membership from the Rome Statute as the ICC can no longer serve as a venue to prosecute President Xi for an alleged commission of crime against humanity,” he added. (SunStar Philippines)