FORMER Foreign Affairs Secretary Albert del Rosario said the least they could expect, as a result of bringing President Xi Jinping before the International Criminal Court (ICC), is for China to compensate thousands of affected Filipino fishermen because of the destruction of reefs in the South China Sea.
China, he said, has caused the “permanent and devastating destruction of the environment,” a move that adversely affected and injured not just 326,000 fishermen but also present and future generations of people across the nation,” he said at a joint press conference with Ombudsman Conchita Carpio-Morales at the Manila Polo Club in Makati.
Del Rosario and Carpio-Morales, along with some fishermen, submitted their complaint or communication to the ICC on March 15, two days before the Philippines’s withdrawal from the ICC takes effect on March 17.
They accused Chinese President Xi of being behind the widespread destruction of the seven contested reefs and shoals in the West Philippine Sea (WPS).
Included in their complaint are Chinese Foreign Minister Wang Yi and Ambassador Zhao Jian Hua.
Relatedly, Sen. Risa Hontiveros hailed del Rosaro and Carpio-Morales for filing the complaint, saying they are “accomplishing what President Rodrigo Duterte is unwilling and unable to undertake: his job to safeguard and protect Philippine sovereignty and us Filipinos against China.”
In a statement on Sunday, the senator said: “In filing a case against Chinese President Xi Jinping before the International Criminal Court [ICC] regarding China’s incursions in the West Philippine Sea, the complainants provided us with a powerful template of courage as we continue to assert our sovereignty in the West Philippine Sea.”
They clearly underscored the difference that can be made by standing up against foreign aggression instead of pursuing President Duterte’s hollow and treacherous foreign policy.”
Del Rosario said the great consequences of their actions justify the court’s involvement as it affirms the principles of the Rome Statute.
He described the destruction of the undersea features, which China has converted into military installations, as “the most serious crimes of concern to the national community as a whole,” adding, this “must not go unpunished.”
Del Rosario said it is only the ICC that can exact accountability in behalf of Filipinos and the international community respecting the rule of law.
By submitting their “communication” on March 15, del Rosario said, “the court retains its jurisdiction over crimes committed on Philippine territory by Chinese nationals during the period the Philippine remains a state party to the Rome Statute from November 2011, to March 17, 2019. ”If the ICC fails to exact accountability from the Chinese leaders, del Rosario said it would mean the “continued food and livelihood degradation of Filipino fishermen and other groups of vulnerable fishermen along the SCS [WPS].”
He said the continuing denial by Chinese authorities of access to Filipinos and other nationalities so they can fish in their traditional fishing grounds in the WPS “creates impunity and the license for the perpetrators to continue in the SCS and possibly elsewhere in the world.”
Asked how their complaint could prosper since China is not a member of the ICC, del Rosario had a hypothetical answer: “if enough credible witnesses have reached the point of a formal investigation, this could lead to a warrant of arrest for [Chinese President] Xi.”
He said the warrant of arrest can be served by any one of 123 state parties to the ICC, and they can compel Xi Jinping to go back to The Hague to be able to face the charges that have been brought against him.
“If he does not wish to do this and he remains outside of the country, there are 123 countries he cannot visit for the rest of his life, he has to stay close to home; that would probably be the worst that could happen to him.”
Noting that Foreign Minister Wang Yi and Ambassador Zhao Jian Hua are included on their list, the former DFA chief said, “can you imagine a Foreign Minister who cannot travel or an Ambassador who cannot be posted because of the same restrictions?”
He conceded these were hypothetical assertions “I wanted to share with you and, of course, it’s difficult, but there are enough countries in the ICC to be able to encourage that enforcement.”
Told that sovereign heads of state are protected by immunity from arrest, Carpio-Morales said: “The one who committed the crime does not have to belong to a country who is a state member or party to the ICC.”
“In other words, since we filed the communications at the time that the Philippines was still a state party to the ICC to the Rome Statue, then we have jurisdiction over Mr. Xi because he committed a crime within sovereign territory.”
She added: “The whole foundation of the ICC is a principle of ‘irrelevance of official capacity’ so that heads of states do not have immunity.”
Secretary del Rosario said a small group of like-minded citizens like him gathered over breakfast one day and decided to take China to the ICC “because the Arbitral Tribunal outcome has not moved.”
It was during del Rosario’s term in 2013 that the Philippines brought China before the Permanent Court of Arbitration in The Hague, to limit China’s excessive claim to the whole of the South China Sea.
At that time, the area claimed by China was delineated by the nine-dash line, which loops like a cow’s tongue all the way from China and through the boundaries of some countries, including the Philippines.
The Tribunal ruled in favor of the Philippines, saying the nine-dash line is illegal, and junked China’s claims based on historical grounds.
China ignored the Tribunal’s ruling, saying it is not a signatory to the United Nations Convention on the Law of the Sea (Unclos).
Del Rosario advised China to take their accusations seriously: “If I were China, I would take this seriously because this is not our first encounter with them, it’s our second encounter and we’re serious about winning this encounter, as well.”
Carpio-Morales lamented that despite the friendliness shown by the Filipinos, China did not reciprocate our gesture. “We expected reciprocity but it seems there’s no reciprocity,” she said.
Del Rosario said, “we’re delivering the message that we’re not happy with the way we’ve been treated. We want to be treated better and we’ll look for every possible resource to receive the treatment that we deserve.”