Del Rosario, Morales sue China leader in ICC

In an unusual move, two former high-ranking Philippine government officials have filed a case against Chinese President Xi Jinping in the International Criminal Court (ICC), saying the “atrocious actions of Chinese officials in the South China Sea and within Philippine territory” constitute crimes against humanity that the tribunal can prosecute.

Taking on the Chinese president are Albert del Rosario, a former foreign secretary, and Conchita Carpio Morales, a former Ombudsman.

They filed the complaint, technically called a communication, on behalf of Filipinos and the hundreds of thousands of Filipino fishermen “persecuted and injured” by China’s aggressive island-building and occupation of islands in the West Philippine Sea, waters within the country’s 370-kilometer exclusive economic zone (EEZ) in the South China Sea.

“In implementing China’s systematic plan to take over the South China Sea, President Xi Jinping and other Chinese officials have committed crimes within the jurisdiction of the court, which involve massive, near permanent and devastating environmental damage across nations,” Del Rosario and Morales said in the communication they filed before the Philippines withdrew from the Rome Statute on March 17.

“The situation presented is both unique and relevant in that it presents one of the most massive, near permanent and devastating destruction of the environment in humanity’s history, which has not only adversely affected and injured myriad groups of vulnerable fishermen, but present and future generations of people across nations,” they said.

“This has seriously undermined the food and energy security of the coastal states in the South China Sea, including the Philippines,” they added.

Del Rosario and Morales said the grave consequences of the Chinese actions justified the involvement of the ICC, as one of the tribunal’s principles was that “the most serious crimes of concern to the international community as a whole must not go unpunished and their effective prosecution must be ensured.”

Atrocious actions

“Though widely publicized, these atrocious actions of Chinese officials in the South China Sea and within Philippine territory remain unpunished, and it is only the ICC that can exact accountability on behalf of Filipinos and the international community, respecting the rule of law,” they said.

“We urge you to initiate a preliminary examination on this matter, if only so the court can apprise itself of Chinese crimes committed not only against the Filipino people but also against people of other nations, which crimes are already known to the international community,” they said.

Duterte plays down complaint

President Duterte played down the filing of the complaint, telling reporters on Thursday that it would not jeopardize the diplomatic ties between the Philippines and China.

Duterte said the ICC had no jurisdiction over China, which did not sign the Rome Statute that created the tribunal, and the Philippines, which he had pulled out of the treaty.

“They (Del Rosario and Morales) are entitled to file the case, and I will say there is no jurisdiction of this country and of China. Even more so with China. We’ll just go along that line,” Duterte said.

The communication, dated March 13, was filed at the office of ICC Chief Prosecutor Fatou Bensouda to beat the March 17 withdrawal of the Philippines from the Rome Statute.

Duterte ordered the withdrawal after the ICC opened in February 2018 a “preliminary examination” of an information brought against him by Filipino lawyer Jude Josue Sabio about possible crimes against humanity for the thousands of killings in his brutal war on drugs.

Bensouda stood her ground on mounting proceedings against Duterte even after the withdrawal, saying the court “retains its jurisdiction over crimes committed during the time in which the state was party to the statute.”

Del Rosario told the Inquirer that the communication was hand-delivered to the ICC on March 15, two days before the Philippine withdrawal took effect, and that Bensouda’s office issued a letter receipt.

The communication included a 17-page outline of how Xi and other Chinese officials committed crimes against humanity in “implementing China’s systematic plan to control the South China Sea” and testimonies of Filipino fishermen deprived of their livelihood.

Del Rosario and Morales said the ICC’s preliminary examination could be facilitated by the fact that much of the evidence they presented were widespread, highly publicized incidents of Chinese incursions and included those that were already judicially vetted when the Philippines won the South China Sea arbitration on the tribunal in July 2016.

Documented cases

In filing the communication, Del Rosario and Morales presented documented cases of Chinese blockade of fishermen in the disputed waters, Chinese destructive fishing activities and dozens of instances where China built military installations on contested islands.

They cited China’s installation of a weather radar on Fiery Cross Reef (known in the Philippines as Kagitingan Reef) in 1987, seizure of Subi (Zamora) Reef in 1988, occupation of Mischief (Panganiban) Reef in 1995 and of Scarborough (Panatag) Shoal in 2012, as well as occupation of islands claimed by Vietnam and Malaysia.

They said that from 2013, China started a massive, illegal land reclamation on disputed reefs and building air and naval bases on seven of those reefs in the Spratly archipelago

They said one of the military bases had an anchorage larger than Hawaii’s Pearl Harbor.

The communication named as “perpetrators” Xi, president and leader of China’s Communist Party, Foreign Minister and State Councilor Wang Yi (as primary promoter of China’s plan in the South China Sea, and as such he defends, promotes and facilitates the crimes) and Chinese ambassador to the Philippines Zhao Jinhua.

They said Xi had been reported to have, over the past several years, “ordered engineers to pile sand onto some of the sea’s disputed offshore reefs, mostly in the Spratlys, with the apparent goal of building military bases there.”

Maritime militia

Under Xi’s command, they said, Beijing has “provided military training and sophisticated communication technology to its fishermen so they can call in the coast guard if they have a run-in with a foreign law enforcement vessel or alert the coast guard [to] the presence of fishermen from other countries.”

They said Zhao wrote in a local paper that China and the Philippines were “separated by only a narrow strip of water, and have been close neighbors for centuries.”

“This is a continued assertion of China’s unlawful and expansive nine-dash line claim in the South China Sea because the Philippines and China are not ‘separated by only a narrow strip of water’ but instead by a distance of approximately [1,780 kilometers],” they said.

They said China’s blockade against Filipino and other fishermen, and tolerance of illegal, unreported and unregulated fishing by the Chinese, directly caused food and livelihood deprivation to as many as 350,000 Filipino fishermen.

They cited the testimonies of fishermen Crispen Talatagod, Tolomeo Foreones and Jowe Legaspi earlier submitted to the UN arbitral tribunal.

They said the Chinese actions would result in a “fisheries collapse” and food shortages in several nations on the rim of the disputed waterway.

Law of the sea

They said the crimes committed by the Chinese officials occurred within the Philippines’ EEZ and continental shelf, including Panatag Shoal and Kalayaan Islands.

They pointed out that the UN Convention on the Law of the Sea (Unclos) affirmed that the Philippines “possesses the sovereign rights to explore and exploit, conserve and manage the living and nonliving resources” in the area.

Del Rosario and Morales said they sought ICC involvement because the Philippine government had not taken up a case against Chinese incursions.

Under the Rome Statute, the ICC steps in only if a state party “is unwilling or genuinely unable to carry out the investigation or prosecution” of international crimes.

“As of the submission of this communication, there are no proceedings against President Xi Jinping and other Chinese officials to account for their actions in the South China Sea,” Del Rosario and Morales said.

They added that the “current (political) climate [in] the Philippines is not conducive to any investigation or prosecution” of Chinese officials.

Deferential to China

“The President of the Philippines, Rodrigo Roa Duterte, has repeatedly and publicly declared his deferential attitude toward China and President Xi Jinping,” they said.

They cited news reports in which Duterte publicly declared his “love” for Xi, heaped praises on him and his policy to refrain from asserting the Philippines’ legal victory against China, among other things.

Del Rosario was head of the Department of Foreign Affairs from 2011 to 2016. He led the Philippine team that filed and won a challenge to China’s claim to nearly all of the South China Sea in the UN arbitral court.

The tribunal affirmed the Philippines’ “exclusive sovereign rights over the West Philippine Sea” and invalidated China’s sweeping claim to the strategic waterway.

Morales was Ombudsman from 2011 to 2018.

Both have incurred the ire of Duterte for their strong stand against issues that are sometimes against his policies.

Del Rosario told the Inquirer that with Morales, he was confident that “our measure of successfully dealing with [Xi] has increased significantly.”

Asked if Duterte could block the case, Del Rosario said: “Rather than block the case, President Duterte could be more helpful to the Filipino fishermen by ensuring that they do not continue to undergo the suffering they have experienced. And furthermore, this presents an opportunity for reparations.” —WITH A REPORT FROM JULIE M. AURELIO