Ex-PH officials file ICC communication vs. Xi Jinping over actions in South China Sea

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Chinese President Xi Jinping (FILE PHOTO)

Metro Manila (CNN Philippines, March 21) —  Former Department of Foreign Affairs (DFA) Secretary Albert del Rosario and former Ombudsman Conchita Carpio-Morales filed a communication before the International Criminal Court outlining the crimes Chinese President Xi Jinping and other Chinese officials supposedly committed in their "systematic plan to control" the South China Sea.

In a letter dated March 13 addressed to ICC Chief Prosecutor Fatou Bensouda, Del Rosario and Morales raised concerns over China's "atrocious actions" in the South China Sea and within Philippine territory.

"Though widely publicised, these atrocious actions of Chinese officials in the South China Sea and within Philippine territory remain unpunished, and it is only the ICC that can exact accountability on behalf of Filipinos and the international community, respecting the rule of law," it said.

Del Rosario and Morales urged Bensouda in the letter to initiate a preliminary examination on Chinese encroachment in the South China Sea.

The communication was sent to the court on March 15, two days before the Philippines' withdrawal from the court took effect.

"We understand the Court retains its jurisdiction over crimes committed during the period the Philippines was a state party to the Rome Statute,"

What are the accusations against China?

The 17-page communicated outlined the "crimes against humanity" China reportedly committed which fall within the ICC's jurisdiction.

"Given that these occurred within Philippine territory pursuant to China's longterm, widespread and/or systematic plan to control the South China Sea, the Court can exercise jurisdiction over genocide, crimes against humanity and war crimes committed by Chinese nationals," it said.

The communication said China's encroachment in islands in the South China Sea, including the Spratly Islands, resulted in "environmentally destructive and illegal reclamations and artificial island building activities," which were led by Chinese President Xi.

The communication also cited the decision of the international tribunal in the arbitration case filed by the Philippines against Beijing, which found that China "unlawfully prevented fishermen from the Philippines from engaging in traditional fishing" in the hotly-contested Scarborough Shoal. The Chinese took over the shoal in 2012 after a standoff with the Philippines, which prompted Manila to file a case for international arbitration.

China's moves in the waterway led to the deprivation of food for Filipinos, the harvesting of endangered species, and damage to the marine environment, the communication said. It cited written testimonies of fishermen who said they lost their livelihood as China took over Scarborough Shoal.

"This shows discriminatory intent by Chinese officials to exclude and harm Filipino nationals, as well as other inhabitants of coastal States of the South China Sea who are not Chinese," he said.

Brunei, Malaysia, Taiwan and Vietnam also have claims in the South China Sea.

The Permanent Court of Arbitration in The Hague, Netherlands invalidated China's sweeping claims to almost the entire South China Sea. It recognized the Philippines' sovereign rights in areas within its 200-nautical mile Exclusive Economic Zone where China has built artificial islands, prohibited Filipino fishermen from fishing and interefered in petroleum exploration.

The tribunal did not rule on which country has sovereignty over Scarborough Shoal -- located around 120 nautical miles off Zambales -- but said China violated its duty to respect traditional fishing rights of Filipino fishermen there.

The tribunal also said China's large scale land reclamation and construction of artificial islands at seven features of the Spratly islands have caused "severe harm" to the coral reefs and the marine environment there.

Can the ICC prosecute Chinese officials?

China is not a party to the Rome Statute, the treaty which forms the ICC. However, the communication stated the ICC can take jurisdiction over Chinese nationals who commit crimes covered by the international tribunal within Philippine territory during the time the country was a State Party.

The communication also identified Chinese Foreign Minister and State Councilor Wang Yi, as well as Chinese Ambassador to the Philippines Zhao Jianhua among the alleged perpetrators of the crimes.

"The crimes committed by Chinese officials occurred within the Philippines EEZ and continental shelf. Under UNCLOS, the Philippines possesses the sovereign rights to explore and exploit, conserve and manage the living and non-living resources over this area," it read.

It also argued that the Scarborough Shoal and Kalayaan Island Group, two of the contested areas in the West Philippine Sea, are territories of the Philippines as stated in domestic legislation.

Why file the case before ICC?

While a country's judiciary is primarily responsible for investigating international crimes, the ICC provides a remedy.

The communication pointed out that there are no active proceedings against Xi and other Chinese officials in the Philippines, adding that the current political climate is "not conducive to any investigation" on the crimes they stated.

"The President of the Philippines, Rodrigo Roa Duterte, has repeatedly and publicly declared his deferential attitude towards China and President Xi Jinping," the communication read.

The Duterte administration has been repeatedly criticized for its warmer ties with China. The Philippines, under his term, has engaged in several bilateral agreements with the eastern giant amid the unresolved claims in the South China Sea.