MANILA, Philippines – The International Criminal Court (ICC) has junked the communication made by former Ombudsman Conchita Carpio-Morales and former Foreign Affairs Secretary Albert del Rosario against China and its president, citing lack of jurisdiction on the case.
ICC said in its report on preliminary examination activities issued on Thursday that the crimes against humanity complaint lodged against Chinese officials led by Chinese president Xi Jinping cannot be acted upon as China is not a state party to the Rome Statute — the treaty that established the ICC.
Morales and Del Rosario pulled off a surprise move in March 2019 when they, both retired government officials and whose last posts came during the former administration’s term, filed a case against Xi.
It was on behalf of fishermen allegedly disadvantaged by China’s fishing and poaching activities in the West Philippine Sea (WPS).
“The crimes referred to in the communication were allegedly committed by Chinese nationals in the territory of the Philippines. China is not a State Party to the Rome Statute. Accordingly, the Court lacks personal jurisdiction,” ICC said.
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The court also said that while it may exercise jurisdiction if the alleged crime was committed on territories that are state parties to the Rome Statute, the activities in question were not within the territory, but only on the exclusive economic zone (EEZ).
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“The information available confirms that the alleged conduct in question occurred in areas that are outside of the Philippines’ territorial sea (i.e., in areas farther than 12 nautical miles from its coast), but nonetheless within areas that may be considered to fall within its declared EEZ,” ICC noted.
“In this context, the Office’s analysis has been conducted ad arguendo without taking a position on the different disputed claims with respect to these areas. However, the Office has concluded that a State’s EEZ (and continental shelf) cannot be considered to comprise part of its ‘territory’ for the purpose of article 12(2)(a) of the Statute,” they explained.
The two officials claimed that thousands of Filipino fisherfolk have been persecuted and injured by China’s aggressive island-building and occupation of the disputed islands in the WPS.
They also used the boat ramming incident, where a local fishing boat sunk after a ‘collision’ with a Chinese ship that left 22 fishermen at sea, to boost the complaints. However, ICC said that it is also well outside their jurisdiction as the supposed actions were committed inside a Chinese boat — a country, again, not a party to the Rome Statute.
“[…] While article 12(2)(a) also extends the Court’s jurisdiction to crimes committed on board vessels registered in a State Party, this condition likewise is not met, given that the alleged crimes were purportedly committed on board Chinese registered vessels,” ICC reiterated.
“Finally, as previously highlighted, the remaining basis for the exercise jurisdiction (active personality) under article 12(2)(b) is also not met, given the Chinese nationality of the alleged perpetrators in question. Accordingly, the Office concluded that the crimes allegedly committed do not fall within the territorial or otherwise personal jurisdiction of the Court,” it added.
Under the term of President Rodrigo Duterte, the Philippines and China enjoyed stronger relations — despite being damaged years prior by complaints filed at the International Arbitral Tribunal, which ruled that China’s nine-dash line territorial claim has no historical and legal basis.
However, the renewed ties have alarmed critics as the Asian superpower continued to assert its presence in the country, with several advanced structures being built on several islands at the WPS.