A non-traditional route

What were they thinking?

That was a common question when it became known that a complaint had been filed before the International Criminal Court or ICC against Chinese President Xi Jinping over his country’s island-building in the South China Sea.

Xi is president for life. His government refused to participate in the proceedings at the Permanent Court of Arbitration in The Hague, where the Philippines had filed a case to define the country’s maritime entitlements in the South China Sea. Xi had ignored the PCA ruling, which invalidated his country’s nine-dash-line claim over nearly the entire SCS.Why should he care about the complaint before the ICC?

But because the complainants happen to be former foreign affairs secretary Albert del Rosario, one of the initiators of the case before the PCA, and former ombudsman Conchita Carpio-Morales, the complaint before the ICC cannot be easily dismissed.

Xi is accused of crimes against humanity through massive environmental destruction in the SCS, with vast tracts of coral reefs irreparably damaged. The loss of fish spawning grounds in what is considered to be the area with the highest marine biodiversity on the planet is threatening fish catch, livelihoods and food security even beyond Southeast Asia.

As the complaint cites, the ICC on Sept. 15, 2016 declared in a policy paper that it would assume jurisdiction over large-scale willful environmental destruction that endangers huge numbers of people, making it a crime against humanity.

In the policy paper, the office of the ICC prosecutor declared that it would give “particular consideration to prosecuting Rome Statute crimes that are committed by means of, or that result in, inter alia, the destruction of the environment, the illegal exploitation of natural resources or the illegal dispossession of land.”

The case brought against China before the PCA was not entirely novel; a similar case between Bangladesh and its giant neighbor India led to a PCA ruling in 2014 that awarded Bangladesh 19,467 kilometers or four-fifths of the total disputed area in the Bay of Bengal. Unlike China, India quickly announced it was bowing to the PCA ruling that ended the three-decade-old sea border dispute.

This time, I can’t recall a precedent for the application of the policy on environmental offenses in a case involving crimes against humanity.

Because of the novelty of the approach, Del Rosario and Morales aren’t the only ones who are hoping that the Philippines, as in the arbitration case, might obtain a favorable ruling from the ICC.

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The PCA, which is backed by the United Nations, awarded the Philippines sovereign rights over Panganiban (Mischief) Reef, Ayungin (Second Thomas) Shoal and Recto (Reed) Bank, and declared Panatag (Scarborough) Shoal a common fishing ground over which no country has sole control.

That court ruling was based on the UN Convention on the Law of the Sea, to which both China and the Philippines are signatories.

If Beijing won’t abide by a ruling of a UN-backed court that is based on a UN convention, would it recognize the ICC to which it does not belong? The ICC, created through the Rome Statute, is outside the UN system. There’s also the fact that the Philippines has withdrawn from the ICC.

Facing The Chiefs last Friday on Cignal TV’s One News, Del Rosario and Morales stressed that they filed the case two days before the withdrawal took effect on March 17. The offenses cited in the complaint, they added, took place while the country was still a state party to the Rome Statute. They explained that the ICC may assume jurisdiction over a complaint affecting any of its members, even if the accused perpetrator is not a party to the Rome Statute.

Morales told us that the announcement of the Philippines’ withdrawal from the ICC in fact was one of the issues that propelled them last year to take this approach in trying to hold Beijing accountable for its actions in the SCS.

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Beijing has not yet reacted to the case. President Duterte’s spokesman Salvador Panelo, speaking to The Chiefs, said Interior Secretary Eduardo Año had just arrived from meetings with officials in China over another matter. The Chinese were aware of the ICC complaint, Año informed Malacañang. What was the Chinese reaction? “Nothing. They couldn’t care less,” Panelo told us, quoting Año.

Or maybe the Chinese didn’t want to inject tension into the meeting with Duterte’s officials. The Duterte administration, after all, is perceived to have tossed aside the Philippines’ victory in the arbitral court, and has gone out of its way to give Beijing face after the PCA ruling in 2016.

The tack did not stop Beijing from continuing with its island-building and militarization in the SCS. It has also continued guarding Panatag Shoal, although it has allowed Filipino fishermen to enter. The stories of several of the affected fishermen are included in the case brought before the ICC, and they are prepared to testify as the victims in the complaint.

Malacañang must be feeling some frustration with Beijing as well. There has been rumbling in the military, whose men are manning the ramparts in Palawan’s Barangay Pag-asa and on a rusty tub in Ayungin, over the Duterte administration’s China policy.

Duterte has also professed concern over the plight of Filipino fishermen. I asked Panelo if the Palace supported the premise that our fishermen are suffering and the marine environment is being destroyed by China’s island-building. His reply, after reiterating that Del Rosario and Morales “are entitled” to file the complaint:  “Our position would be, it depends on the ICC, if it assumes jurisdiction or not. If it assumes jurisdiction, what can we do?”

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Duterte’s subdued response to the filing of the case is noteworthy. The Palace position is that it’s a private complaint and it’s a free country, and the complainants do not represent the Philippine government.

Morales expressed hope that the government would go one step further and perhaps provide materials that would further bolster the case.

“I think they have to manifest concern for the people who have been affected,” Del Rosario told us, adding that the objective of the complaint is “to draw a red line” particularly in Panatag.

A signature campaign has been launched in support of their case by Filipinos who hope that the move will prove to be audaciously brilliant rather than quixotic.

What were they thinking in filing the case?

 “We’re not looking for a traditional solution,” Del Rosario said. “We’re looking for a solution that will take us home.”