ICC prosecutor junks complaint vs Xi Jinping on West Philippine Sea dispute

Mike Navallo, ABS-CBN News

Posted at Dec 05 2019 09:54 PM | Updated as of Dec 05 2019 11:41 PM

MANILA (UPDATED) - The International Criminal Court's (ICC) Office of the Prosecutor has junked the communication filed by 2 former government officials and Filipino fishermen against Chinese President Xi Jinping over alleged destruction of natural resources in the West Philippine Sea.

In a report released Thursday, ICC Prosecutor Fatou Bensouda said the ICC neither has personal nor territorial jurisdiction over the case.

Former Foreign Affairs Secretary Albert del Rosario, former Ombudsman Conchita Carpio Morales and a group of fishermen had accused Xi of committing crimes against humanity in allegedly implementing a systematic plan to control the South China Sea which resulted in the destruction of natural resources, and endangered the livelihood of more than 300,000 fishermen and the food security of present and future generations of Filipinos.

In dismissing the communication, the ICC Prosecutor pointed out that China is not a party to the Rome Statute, the treaty which created the ICC.

“The crimes referred to in the communication were allegedly committed by Chinese nationals in the territory of the Philippines. China is not a State Party to the Rome Statute. Accordingly, the Court lacks personal jurisdiction.”

The Court also rejected the argument that it has jurisdiction over the case on the ground that the acts allegedly took place within Philippine territory.

It noted that the supposed acts took place outside the Philippine territorial sea but within the country’s exclusive economic zone or EEZ, which is not part of the definition of “territory” under the Rome Statute.

“[T]he Office has concluded that a State’s EEZ (and continental shelf) cannot be considered to comprise part of its ‘territory’ for the purpose of article (12)(2)(a) of the Statute,” the ICC Prosecutor said, explaining that ‘territory’ only refers to areas under the sovereignty of the State, namely its land mass, internal waters, territorial sea and the airspace above such areas.

It further pointed out that while the ICC could potentially have jurisdiction if the crime was committed on board a vessel registered in a state party to the treaty, this was not the case because the alleged crimes were allegedly committed on board Chinese registered vessels.

Del Rosario, Carpio Morales, and the fishermen filed the communication in March this year, two days before the Philippines’ withdrawal from the ICC took effect on March 17.

Meanwhile, the ICC Prosecutor said it is still finalizing its analysis on whether the ICC can admit the other set of communications filed with the ICC with respect to alleged extrajudicial killings in connection with President Duterte’s war on drugs.

“During 2020, the Office will aim to finalize the preliminary examination in order to enable the Prosecutor to reach a decision on whether to seek authorization to open an investigation into the situation in the Philippines,” the report said.

The ICC Prosecutor said her office has examined a wide range of sources such as hundreds of media and academic articles, reports and other materials including public statements of intergovernmental, governmental and non-governmental organizations and communications submitted directly to her office. They are verifying the claims, she added.

The analysis includes looking into patterns and trends, and whether the alleged acts amount to crimes against humanity of murder, torture, other inhumane acts or rape.

In addition, the ICC Prosecutor said her office is monitoring relevant national proceedings conducted by Philippine authorities including Senate hearings.