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Friday, March 29, 2024

A snowball’s chance in hell

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"This complaint is more a political move than a solid legal case."

 

 

Will Chinese President Xi Jinping ever see the inside of a jail for "crimes against humanity?"

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That's the scenario that former Foreign Affairs Secretary Albert del Rosario and former Ombudsman Conchita Carpio-Morales wanted to create by filing a complaint before the International Criminal Court recently, but I really doubt whether this would happen at all.

I consider the complaint as more of a political move than a solid legal case, addressed largely to the international community to muster support for the Philippine victory in the Permanent Arbitral Tribunal in The Hague in 2016.

In the first place, China is not a member of the ICC, and therefore the complaint could be dismissed outright for lack of jurisdiction. The Duterte administration has already withdrawn Philippine membership in the international body.

Under its charter, the ICC may exercise jurisdiction to prosecute individuals for international crimes of genocide, war crimes, and crimes against humanity only under certain conditions—when national courts are unwilling or unable to prosecute criminals or upon referral by the United Nations Security Council or individual states.

The complaint filed by the two former government officials, however, alleges that the Chinese leader “directly caused the problems” in the South China Sea through the building of artificial islands that led to deterioration of fish resources and the loss of livelihood for Filipino fishermen. It asked the ICC to investigate the "massive, near-permanent, and devastating environmental damage across nations.”

President Duterte reacted to the issue by saying that the two former government officials were "entitled to file the case" and that "it has no jurisdiction over this country and China. Even more so with China.”

The Palace spokesman dismissed the complaint as a "futile exercise." Justice Secretary Menardo Guevarra described it as "politically motivated…The complaint against President Xi is really a political statement more than a legal action, and is thus intended to achieve a political result rather than a legal victory.”

For his part, lawyer Jay Batongbacal, Director of the Institute for Maritime Affairs and Law of the Sea of the University of the Philippines College of Law, also sees rough sailing for the complaint before the ICC. But he also said it shows a "principled stand" on the part of the former government officials and Filipino fishermen: "I don't think it's entirely futile because in the first place it already has an impact. It has called attention to the fact that China continues to carry out its activities in the West Philippine Sea."

David Bosco, an associate professor at Indiana University's School of Global and International Studies, asserts that "there is a theoretical possibility" for the ICC to investigate the complaint against Chinese President Xi Jinping, but there is "close to zero" odds that the tribunal would do so.

"Any group can lodge a complaint at the ICC, even against the nationals of states that are not members of the tribunal like China, as long as the alleged crimes are committed in the member-state's territory," according to the analyst.

While the ICC defines crimes against humanity as "large scale" and "coordinated" attacks as a policy against civilians, the complaint against Xi cites crimes against the environment, Bosco noted. 

"Based on the jurisprudence we've seen from ICC and from other courts, I think it's very unlikely that these alleged facts would constitute a crime against humanity," Bosco said, adding that the complainants should go to another international body. 

Another foreign analyst, Anders Corr, who makes no secret of his anti-China bias, avers that the complaint heightens public awareness of the problem in the South China Sea: "Bringing these lawsuits have more than legal impact. It has a public relations impact. It brings the attention of the Philippine community and also the world community to bear on China. It takes China to the court of public opinion." The Philippines, he suggested, can go to legal venues, such as the United Nations General Assembly and the UN Human Rights Commission, to present its case.

At a press briefing in Beijing on March 22, foreign ministry spokesperson Geng Shuang said China’s position on the South China Sea dispute had always been consistent and clear, that the country's joint efforts with countries in the region had ensured developments in the waterway had gone in "the right direction."

"In this context, the actions of a few people to stir up a fuss won’t result in any big trouble. Neither will it affect or damage bilateral ties,” Geng said.

We have had enhanced bilateral ties with China in the past three years, with the Philippine government opting to put aside contentious issues in the territorial dispute in the South China Sea. The prudent thing to do, from where we sit, is for the two sides to strive for the peaceful resolution of the dispute while continuing to strengthen economic cooperation and people-to-people exchanges in the years ahead on the basis of mutual benefit and mutual respect.

ernhil@yahoo.com

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