China's President Xi Jinping (L) and Premier Li Keqiang arrive for the closing session of the National People's Congress (NPC) in Beijing's Great Hall of the People on March 15, 2019.
AFP/Greg Baker
ICC submission of Del Rosario, Morales vs Xi may be 'futile' — Palace
(Philstar.com) - March 23, 2019 - 11:41am

MANILA, Philippines — The filing of two former top officials of the Philippines against Chinese President Xi Jinping may be a “futile exercise,” said the Palace on Saturday.

Two days before the Philippine government’s exit from the ICC took effect, former Ombudsman Conchita Carpio Morales and former top diplomat Albert del Rosario called the international tribunal’s attention to Chinese officials’ alleged crimes against humanity against the Philippines and our fishermen in the South China Sea, which is within Philippine territory.

Presidential spokesperson Salvador Panelo said that while Morales and Del Rosario have the right to file a communication before the international tribunal, it “may be a futile exercise.”

“The ICC has no jurisdiction over China,” he added.

Jurisdiction

The international tribunal is mandated to try individuals, not states, and hold them accountable for the most serious crimes such as genocide, war crimes, crimes against humanity and crime of aggression in the international community.

Del Rosario and Morales argued that the ICC has jurisdiction over the "atrociously inhumane actions" of Chinese officials in the contested waterway as it occurred "within Philippine territory."

International maritime law expert Jay Batongbacal has earlier said that China not being a member of the statute may serve as an obstacle on the matter of the ICC’s jurisdiction over the incidents alleged in the communication.

“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 also said.

The Office of the Prosecutor (OTP) is tasked to determine whether a submission—like the communication from Morales and Del Rosario—falls within the standards of the Rome Statute for a full-blown investigation.

"For this purpose, the OTP conducts a preliminary examination of all communications and situations that come to its attention based on the statutory criteria and the information available," the ICC said in its official website.

The OTP would determine whether the recently filed communication would merit an investigation from the ICC.

EXPLAINER: ICC correspondence vs China's Xi: What happens next?

Withdrawal

Panelo also reiterated that the Duterte government “is engaged in a diplomatic negotiation, through a bilateral consultation mechanism 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 Statue or declined to be members of the ICC,” Panelo added.

President Rodrigo Duterte has earlier expressed optimism that the complaint against China before the International Criminal Court would not affect the ties between Manila and Beijing. 

"No, I'm sure they don't. The Philippines is a democratic country anybody can bring a suit against anybody," Duterte said.

On March 16, 2018, the Philippines formally submitted its letter of withdrawal from the Rome Statute—the treaty that established ICC—after the tribunal’s chief prosecutor launched a preliminary examination into the alleged crimes against humanity of Duterte and his men.

The Philippines became the second nation to leave the ICC, following Burundi in October 2017. The withdrawal became effective on March 17.

READ: Philippines becomes second country to quit ICC

—  Kristine Joy Patag

CHINA INTERNATIONAL CRIMINAL COURT SALVADOR PANELO SOUTH CHINA SEA WEST PHILIPPINE SEA XI JINPING
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