ICC has no jurisdiction over China's 'crimes' in West Philippine Sea
In this July 12, 2019 file photo, Former Ombudsman Conchita Carpio Morales talks about demanding accountability from China following the destruction of coral reefs in the South China Sea, including the West Philippine Sea.
Philstar.com/Ian Cigaral, file
ICC has no jurisdiction over China's 'crimes' in West Philippine Sea
Franco Luna (Philstar.com) - December 5, 2019 - 8:54pm

MANILA, Philippines — The International Criminal Court does not have jurisdiction over a complaint into China's alleged crimes against humanity through its activities in the West Philippine Sea, the court's prosecutor said in a report on Thursday.

The ICC Office of the Prosecutor said Exclusive Economic Zone does not equate to the territory of a State and that the crimes alleged in the communication filed before the court are not technically within its ambit.

"Accordingly, the Office concluded that the crimes allegedly committed do not fall within the territorial or otherwise personal jurisdiction of the Court," the report said. 

The ICC Office of the Prosecutor also ruled that because these crimes were supposedly committed aboard Chinese-registered vessels, the court has no jurisdiction.

"China is not a State Party to the Rome Statute. Accordingly, the Court lacks personal jurisdiction," the report explained. 

Article 12 of the Rome Statue, which outlines the court's preconditions to the exercise of jurisdiction, says:

[T]he Court may exercise its jurisdiction if one or more of the following States are Parties to this Statute or have accepted the jurisdiction of the Court in accordance with paragraph 3:

  1. The State on the territory of which the conduct in question occurred or, if the crime was committed on board a vessel or aircraft, the State of registration of that vessel or aircraft;
  2. The State of which the person accused of the crime is a national.

The statute also states that "a State which becomes a Party to this Statute thereby accepts the jurisdiction of the Court with respect to the crimes referred to."

At the directive of President Rodrigo Duterte, whose 'drug war' is a subject of a separate preliminary examination, the Philippines officially pulled out of the ICC on March 17, 2019.

However, a statement from the ICC asserted that "[a] withdrawal has no impact on ongoing proceedings or any matter which was already under consideration by the Court prior to the date on which the withdrawal became effective."

This means that the ICC may still exercise jurisdiction during the period when the Philippines was still a state party, from  November 1 2011 until March 16, 2019. The Philippines deposited its ratification to the Rome Statute on August 30, 2011.

Early this year, former Ombudsman Conchita Carpio-Morales and former Foreign Affairs Secretary Albert Del Rosario filed a communication before the ICC against Chinese President Xi Jinping, alleging  "crimes against humanity" in Beijing’s activities in the strategic waterway.

The Philippines has already won a favorable arbitral ruling in The Hague in 2016 based on the United Nations Convention on the Law of the Sea (UNCLOS). The ruling invalidated Beijing’s nine-dash claim over the West Philippine Sea.

However, Jinping has since made it clear to President Duterte that Beijing does not recognize this ruling. 

“The ICC communication is a means of enforcing the award because it seeks to enforce individual criminal responsibility for China’s acts already found unlawful by the award,” Morales said earlier in filing the communication with the court.

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