ICC can still go after China’s Xi Jinping after Philippine pull out

MANILA, Philippines –The International Criminal Court  (ICC) may still go after Chinese President Xi Jinping and other officials, even if the Philippines has renounced its ICC membership, according to UP College of Law Institute for Maritime Affairs and Law of the Sea director Jay Batongbacal.

Batongbacal said that while China is not an ICC member, the international court could still pursue the case because the alleged crime was committed in Philippine territory when it  was still a member of the Rome Statute. The Philippine withdrawal from the ICC took effect on March 17.

In a roundtable on Wednesday, March 27, he said: “Never sumama ang China sa ICC dahil sa tingin niya ang mismong konsepto ng international court at ang sistema na ‘yon ay labag sa sovereignty ng China…Pero di ‘yun ibig sabihin kaagad na wala sila sa jurisdiction, or rather, ang nationals nila ay wala sa jurisdiction ng ICC statute.” 

(China never joined the ICC because they view the very concept of the international court and that system is against the sovereignty of China… but this doesn’t mean that they are out of the jurisidiction, or rather, their nationals are out of the ICC statute’s jurisdiction.)

“Actually ang pinu-punterya nito ay hindi yung mga state parties or states, kundi ang individuals…Kasi, criminal liability of individuals ang hinahabol doon.”

(Actually, what is being targetted here is not the state parties or the states, but the individuals… because what is being chased here is the criminal liability of individuals.)

Asia Pacific Pathways to Progress Program research fellow Lucio Blanco Pitlo III said that there had been precedents where the ICC had gone after individuals who came from countries that were not members of the ICC. These individuals were accused of committing crimes within the territories of ICC party states. 

However, in terms of its effects, Pitlo said that it may not be significant. 

“China is not a signatory of the ICC so I guess since ‘di siya signatory, ‘di substantial ang reputational cost sa China,” Pitlo said.

(China is not a signatory of the ICC so I guess since they’re not a signatory, the reputational cost to China is not substantial)

“So, the motive dito nina (here of) Ombudsman [Morales] and former Secretary [Del Rosario] is to call out again China, to pressure China,” he added, referring to China’s  reclamation activities in the Philippines’ supposed South China Sea territories. (READ: 2018: Year of China military deployments in South China Sea – U.S. think tank)

Asia Pacific Pathways to Progress Program Convenor and Fellow Aaron Jed Rabena noted that China may simply just ignore it. 

However, the question this would now raise is if the ICC can still pursue the case at all since the Philippines has now quit from the Rome Statute.  (READ: Malacañang: Ex-PH officials’ ICC case vs Xi ‘a futile exercise’)

Batongbacal said that since the ICC requires the assistance and cooperation of the states involved, the Philippine governmnent will most likely not extend that if ever the investigation pushes through. (READ: Duterte threatens to arrest ICC prosecutor if she goes to PH)

“Yung issue naman ng jurisdiction over the offense…continuing pa ba ang jurisidiction ng ICC sa offenses na ‘yon? ….‘Yan na pagdedebatihan doon sa ICC dahil ang sistema sa ICC, state party pa rin ang nagco-complain,” Batongbacal added. 

(The issues now of the jurisdiction over the offense… will the jurisdiction of the ICC continue for those offenses? … that will have to be debated at the ICC because the system of the ICC, the state party is still the one that complains.)

“Ngayong ‘di na tayo under the jurisidiction, ‘di na tayo parte ng convention, so tatanungin ng mga mahestrado doon, pwede pa ba ‘yan? Even if the ICC had jurisidiction during the time that we were a member, does that jurisdiction continue afterwards?” 

(Not that we are no longer under the jurisdiction, we’re not part of the convention, so the magistrates will ask there, is that still even allowed?)

Former foreign secretary Albert del Rosario and former ombudsman Conchita Carpio Morales, along with Filipino fisherfolks,  had sent the communication last March 15, requesting that the ICC investigate China’s top officials for crimes against humanity. (READ:Thousands sign petition backing ICC complaint vs China’s Xi)

Bureau of Fisheries and Aquatic Resources Assistant Director for fisheries policy and ecnocomics Sammy Malvas said that China’s reclamation activities in the South China Sea has affected the livelihood of some 20,000 Filipino fishermen.

Fish caught from the area also accounts to 7% of the total production of the country, Malvas added. –Rappler.com