Carpio: PHL giving up legal defense vs. China ‘invasion’ by withdrawing from ICC

The Philippines is giving up a legal defense against China by withdrawing from the International Criminal Court (ICC), Senior Associate Justice Antonio Carpio warned Tuesday.

During oral arguments, Carpio said pulling out of the Hague-based tribunal would render the Philippines unable to sue Chinese President Xi Jinping and his military leaders before the ICC if Beijing invades Pag-Asa Island or installs a naval base in Scarborough Shoal.

"We cannot take advantage of this legal defense anymore because we are withdrawing from the Rome Statute," Carpio told Solicitor General Jose Calida, referring to the establishing treaty of the ICC.

"And we have to take advantage of this new crime. We must remain with the ICC and we must ratify the Kampala amendment, the fourth crime under the ICC, but we will not be doing this because we are withdrawing, correct?" the senior magistrate said.

The Kampala amendments refer to additions in the Rome Statute, particularly on the provisions on the crime of aggression, that were adopted in June 2010 in Kampala, Uganda.

In July this year, the ICC activated its jurisdiction over the crime of aggression, eight years after the Kampala amendments provided that political and military leaders can be held accountable for acts that include invasions, attacks, or military occupations by a state of the territory of another state. 

But the amendments are binding only on the states that ratified them. The Philippines, which notified the United Nations Secretary General of its withdrawal from the Rome Statute in March, did not.

Other international treaties?

Calida reasoned that there might be other international treaties the Philippines could use to seek accountability from China in case of such an attack.

"You know any?" Carpio said. "This is the only treaty in the world that holds military and political leaders of a state that commits the crime of aggression... individually accountable before an international tribunal. No other."

"Unfortunately, Your Honor, I don't have the encyclopedic mind of Justice (Marvic) Leonen, I cannot answer it, Your Honor," Calida said, at which point Carpio told him to discuss the matter in his memorandum, the final required pleading before the case is considered submitted for resolution.

"Because we will be giving up this legal deterrent. If we withdraw from the ICC, we cannot bring Presidenti Xi Jinping to the ICC if he invades Pag-Asa or builds a military base on Scarborough Shoal, we will lose that defense," Carpio said.

An advocate for the Philippines' claims in the South China Sea, he said no other tribunal can decide on territorial disputes, unless both parties submit to arbitration. "But this one, it's a crime against the world, it's a crime against mankind," he said.

The senior justice's point was the last one raised in the oral arguments of petitions challenging the government's decision to withdraw from the ICC, which becomes effective by March next year.

Carpio presided over the afternoon's session. Outgoing Chief Justice Teresita Leonardo-De Castro took no part in the proceedings. She retires on Wednesday, October 10.

The senators and the coalition behind the petitions and the Office of the Solicitor General were given 30 days to file their respective memoranda, or a summary of their arguments. — RSJ, GMA News