Maritime expert says there's precedent for ICC to probe Xi, et al for crimes vs humanity


Posted at Sep 17 2020 08:55 AM

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Filipino youth activists brave the waves as they hoist a Philippine flag on the shores of Zambales facing the West Philippine Sea on June 12, 2017, Independence Day, as a symbol of the country’s claim to the disputed territory. Jun Dumaguing, ABS-CBN News/File

MANILA - A maritime expert believes there is already a precedent for the International Criminal Court to investigate Chinese officials, including Chinese President Xi Jinping, for crimes against humanity in the West Philippine Sea.

Prof. Jay Batongbacal, director of the University of the Philippines Institute for Maritime Affairs and Law of the Sea, said there is already a precedent wherein a person accused of crimes against humanity was placed under ICC investigation.

He said the ICC can exercise jurisdiction "over the persons, if not the official."

"There has been precedent where at least 1 person accused of crimes against humanity has been subjected to an ICC investigation. It is possible the petitioners here will try to use that as precedent to try to build the case that the ICC can still exercise jurisdiction over the persons, at least if not the official. The persons will not be considered as an official in an acting capacity but as an international criminal," he told ANC.

He said it is possible that the ICC will look into the communication as its prosecutor earlier "expressed interest."

Retired Supreme Court Justice Antonio Carpio has joined the communication filed against Chinese President Xi Jinping and other Beijing officials over "crimes against humanity" they allegedly committed in the West Philippine Sea.

The Philippine group is set to file its response to the ICC which questioned why the acts of Chinese officials fall within its jurisdiction when Beijing is not a state-member of the international body.

The case has "genuine legal issues" but will not gain support of other nations if the Philippines itself would not back it, Batongbacal said.

The Duterte administration, despite initiating the Philippines' withdrawal from the ICC, can still join the petition, he added.

The current communication falls under ICC jurisdiction as it details the alleged crimes of Chinese officials in the West Philippine Sea when Manila was still a member of the international body.

"It would also be a serious credibility issue... but we know that credibility is not exactly something that deters this administration," Batongbacal said.

The next administration can also do a "follow up" on the ICC communication despite the inaction of the current government, he added.

"Since China continued to do some of those activities, particularly destructive fishing activities, another case could possibly formulated to try to pursue that particular point and get China to stop these illegal activities," he said.

"A subsequent administration could argue that the time passed was simply a means for Philippines to try to explore ways of getting China to comply voluntarily with the arbitration decision."

China will not act on the communication in an "official or formal level" but may somewhat change its behavior, Batongbacal said.

"That’s against their interest also especially this Chinese dream of national rejuvenation where they see themselves as becoming a world leader by 2050. Even if they ignore this, I think they will somehow alter their behavior in order to avoid further accusations of being a rogue state and seen as an untrusty member of the international community."