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Morales, Del Rosario ICC case vs. China to proceed

Former Foreign Affairs Secretary Albert Del Rosario on Tuesday said the case filed against Chinese President Xi Jinping and other officials before the International Criminal Court will proceed after submitting new evidence that could compel the tribunal to reconsider the complaint months after it was initially rejected.

With former Supreme Court Associate Justice Antonio Carpio joining as counsel in the ICC case he and former Ombudsman Conchita Carpio Morales filed in March last year, Del Rosario said a response demonstrating that Xi and his officials committed crimes against humanity was submitted to the The Hague court last week.

“These facts are straightforward because they are based on publicly available evidence and a number of them have been judicially vetted in the South China Sea arbitration,” Del Rosario said at a forum. 

“We therefore believe that the ICC has a strong basis to proceed with our case.”

Carpio is one of the country’s leading maritime legal experts and a member of the Philippine legal team to the Permanent Court of Arbitration also in The Hague where the Philippines won a case that invalidated China’s sprawling South China Sea claim.

“Justice Carpio’s unparalleled wisdom and expertise in the South China Sea issue have raised our confidence in the case and will surely bolster our chances in the ICC,” said Del Rosario, who spearheaded the successful arbitration case that resulted in the legal victory for the Philippines.

Del Rosario said the end purpose of the case is to hold Xi and other Chinese officials “criminally liable and be penalized by imprisonment pursuant to the ICC statute.”

“They planned it; they implemented it; and they continued with it,” he said.

If the case progresses, Del Rosario said warrants of arrest may be issued against Xi and Chinese officials identified in the case, which included Chinese Foreign Minister Wang Yi. This will also prevent them from travelling to ICC state-parties, which will be obligated to enforce the arrest warrants against them. 

In December 2019, the ICC initially rejected the case, citing lack of jurisdiction as China is not a party to the Rome Statute that established the ICC and that the said crimes cited by former Philippine officials were not committed within Philippine territory, but only within its exclusive economic zone (EEZ).

In its response, Del Rosario said they demonstrated that the crimes against humanity committed by the Chinese leadership occurred not only in the Philippine EEZ, but also on its territorial sea and the coast of Luzon.

Del Rosario cited the following arguments:

  • Part of the destructive reclamation and artificial island-building undertaken by Chinese officials in the Spratly occurred in Subi Reef, which is within the territorial sea of Pag-Asa, a Philippine territory with a permanent community of Filipinos and is controlled and administered by the Philippines.
  • Chinese officials continue to enforce its blockade within the territorial sea of the Scarborough Shoal that prevents Filipino fishermen from pursuing their livelihood. The fishermen live along the coast of Luzon who rely on their fish catch to survive. The effects of these criminal actions by the Chinese therefore extend to the coast of Luzon.
  • At least 322 Chinese militia vessels were swarming in Pag-asa’s shores for more than 450 days from 2018 to 2019 meant to harass the Filipinos living in Pag-asa and prevent fishermen  from pursuing their livelihood.
  • The ramming of the F/B Gem-Ver in the Reed Bank, where 22 Filipino fishermen aboard were left to die until they were ultimately recovered by the Philippine Navy. While this occurred in the Philippine EEZ, this falls within ICC jurisdiction because the Chinese crime was committed against a Philippine-registered vessel.

Del Rosario said they also included senior executives of Chinese Communications Construction Company (CCCC) as the firm and its subsidiaries were found to have undertook the destructive reclamation and artificial island-building in the South China Sea. CCCC is involved in the development of the Sangley Point International Project in the southern Philippine province of Cavite.

The case was filed by Del Rosario and Carpio-Morales on March 15, 2019 – two days before the Philippines’ exit from the tribunal following orders from President Rodrigo Duterte.

Carpio-Moralez said the ICC retains jurisdiction over the acts committed by China even after the effectivity of the Philippine withdrawal from the Rome Statute. The Philippines was a member from Nov. 1, 2011 to March 17, 2019. —KBK, GMA News