ICC probe vs China's Xi 'theoretically possible, but unlikely' - analyst

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Posted at Mar 24 2019 10:41 AM | Updated as of Mar 24 2019 11:07 AM

China's President Xi Jinping walks past honor guards upon his arrival at the Ninoy Aquino International Airport during a state visit in Manila, November 20, 2018. Erik De Castro, Reuters/File

MANILA - It is "theoretically possible" for the International Criminal Court to investigate the complaint filed by a group of Filipinos against Chinese President Xi Jinping, but there is "close to zero" odds that the tribunal would do so, an analyst said Sunday. 

Xi and other Chinese officials allegedly committed crimes against humanity in implementing Beijing's "systematic plan to control the South China Sea," Filipino fishermen, former Foreign Affairs Secretary Albert del Rosario and former Ombudsman Conchita Carpio Morales said in their complaint.

Any group can lodge a complaint at the ICC, even against the nationals of states that are not members of the tribunal like China, as long as the alleged crimes are committed in the member state's territory, noted David Bosco, an associate professor at Indiana University's School of Global and International Studies. 

Many of the crimes alleged by Filipino fishermen and former officials occurred before the Philippines defected from the ICC, he added. 

"There is a theoretical possibility that the court would have jurisdiction even over Chinese nationals," he told ANC. 

However, the analyst also said that "the probability of them (ICC) taking this on is close to zero even though it's a theoretical possibility", given the context of Manila's withdrawal from the court and "the kind of facts that are being alleged." 

The ICC statute defines crimes against humanity as "large scale" and "coordinated" attacks as a policy against civilians, said Bosco, who has authored books about the court and the United Nations Security Council. 
 
The complaint against Xi, however, cites crimes against the environment, he said. 

"Based on the jurisprudence we've seen from ICC and from other courts, I think it's very unlikely that these alleged facts would constitute a crime against humanity," Bosco said. 

Complainants, he said, would be better served by filing a complaint before another international body. 

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It was during Del Rosario's time as top Philippine diplomat that the country brought China before a UN-backed arbitral tribunal in 2013 for incursions in the country's exclusive economic zone within the disputed South China Sea.

The tribunal, based in The Hague, invalidated China's 9-dash line claim over the waters and recognized traditional fishing rights of Filipinos in the Scarborough Shoal, an area where Beijing's patrol ships had shooed away Philippine fishermen.

The Philippines and China have long sparred over the South China Sea, but relations improved considerably under President Rodrigo Duterte, who set aside the 2016 landmark legal victory for enhanced ties.

Manila quit the world's only permanent war crimes tribunal after the ICC launched in 2018 a preliminary examination of Duterte's drug crackdown that has killed thousands and drawn international censure. 

The Philippine defection from the court took effect last March 17.

ICC Prosecutor Fatou Bensounda the following day said her examination into the allegations against Duterte would continue. 

The departure of the Philippines follows the court being hit in recent years by high-profile acquittals and moves by several nations to drop out. 

With a report from Agence France-Presse