ICC no jurisdiction over communication vs Chinese officials for activities in South China Sea - prosecutor
The International Criminal Court has dismissed the communication filed by former Filipino government officials against Chinese officials for allegedly committing crimes against humanity in connection with certain activities in the South China Sea.
In the Report on Preliminary Examination Activities 2019 issued on December 5, ICC Prosecutor Fatou Bensouda said the Court has no jurisdiction over the case since the alleged violations did not occur in the territory of the Philippines.
"In the present situation, the conduct alleged in the communication received did not occur in the territory of the Philippines, but rather in areas outside its territory, purportedly in its EEZ and continental shelf," she said.
According to Bensouda, the EEZ and continental shelf could not be equated to territory of a State within the meaning of Article 12 of the Rome Statute, given that the term in this provision should be interpreted as being "limited to geographical space over which a State enjoys territorial sovereignty," for example its landmass, internal waters, territorial sea and the airspace above such areas.
"Criminal conduct which takes place in the EEZ and continental shelf is thus in principle outside of the territory of a Coastal State and as such, is not encompassed under Article 12(2)(a) of the Statute (unless such conduct otherwise was committed on board a vessel registered in a State Party)," she explained.
Bensouda said the ICC has also no jurisdiction over the matter given the Chinese nationality of the alleged perpetrators in question.
She said that China is not a State Party to the Rome Statute, which created the ICC.
The case stemmed from the communication filed by former Foreign Affairs Secretary Albert del Rosario and former Ombudsman Conchita Carpio-Morales before the ICC last March, alleging that China has intentionally and forcibly excluded Philippine nationals from making use of the resources in certain relevant areas of the sea, such as blocking Filipino fishermen's access to traditional fishing grounds at Scarborough Shoal.
The communication also alleged that the Chinese officials were engaged in massive illegal reclamation and artificial island-building in the Spratly Islands, causing significant damage to the marine life in the areas; and tolerated and actively supported illegal and harmful fishing practices by Chinese nationals, which also has caused serious environmental damage.
Bensouda noted that the communication alleged that such conduct not only violated the law of the sea but also gave rise to crimes against humanity.
"Accordingly, the Office concluded that the crimes allegedly committed do not fall within the territorial or otherwise personal jurisdiction of the Court," Bensouda said.
The Philippines and China are engaged in a territorial dispute in the South China Sea. Celerina Monte/DMS