Palace says filing of complaint vs. Xi before ICC 'may be a futile exercise'

Malacañang on Saturday said the filing of a complaint before the International Criminal Court against Chinese President Xi Jinping "may be a futile exercise."

"The filing of the complaint may be a futile exercise. The ICC has no jurisdiction over China," presidential spokesperson and Chief Presidential Legal Counsel Salvador Panelo said in a statement.

Former Foreign Affairs Secretary Albert Del Rosario and former Ombudsman Conchita Carpio Morales sued Chinese President Xi Jinping, Foreign Minister Wang Yi and China's envoy to Manila Zhao Jianhua for allegedly committing crimes against humanity in connection with China's activities to gain control over most of the South China Sea.

They filed the case before the ICC on March 15 or two days before the Philippines' exit from the tribunal.

"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 Jinping before the International Criminal Court (ICC) as individuals over a perceived violation committed against their country or their countrymen," Panelo said.

"They 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 added.

"As the President said, former Ombudsman Morales and former Foreign Affairs Secretary Del Rosario have the right to file the complaint against President Xi before the ICC," Panelo said.

However, he said the case may be dismissed since China, like the Philippines, is not an ICC member.

"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," Panelo said.

The presidential spokesperson also said the two ex-officials are not authorized to file a complaint against China on behalf of the Philippines.

"The complainants are also not authorized to lodge a complaint against China at the ICC on behalf of the Philippines, and even if they are so authorized still since our position is that the ICC has never acquired jurisdiction over us given that the Rome Statute never took effect as the requirement of publication in a newspaper of general circulation or in the Official Gazette was not complied with, which publication is a requirement in our jurisdiction before the said Rome Statute or any law for that matter becomes effective and enforceable," Panelo explained.

"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," he added.

Panelo also said the Rome Statute does not cover 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, 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 said.

Panelo said if the case is dismissed by the ICC for lack of jurisdiction, critics and detractors "will have a field day criticising the President."

"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 said.

Panelo said the government "is engaged in a diplomatic negotiation, through a bilateral consultation mechanism (BCM), over the West Philippine Sea issue."

"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.

President Rodrigo Duterte on Thursday suggested that the ICC cannot hear the case due to lack of jurisdiction.

He also expressed confidence that the case will not affect the bilateral ties between the Philippines and China.

"No. I'm sure [it won't]. The Philippines is a democratic country and anybody can bring a suit against anybody but whether or not it would prosper, or whether or not we have the jurisdiction, that's something else. Remember China is not a member of the ICC," Duterte said.

Del Rosario and Morales, however, expressed optimism that the complaint will prosper.

"What we’re talking here is crime committed within the territory of a state party. The one who committed the crime does not have to belong to a country who is a state party or member to the ICC. Since we filed the communication at a time the Philippines was still a state party to the Rome Statute, then we have jurisdiction over Mr. Xi because he committed the crime within Philippine territory," Morales said at a press conference in Makati City on Friday.

The Philippines and five other governments have been contesting ownership of the strategic waters and island chains for decades. China asserts sovereignty over nearly the entire South China Sea, where undersea oil and gas deposits have been discovered in several areas. It has built structures in several reefs claimed by the Philippines. —KG, GMA News