Carpio is petitioners’ counsel in ICC case against Xi Jinping

Published September 16, 2020, 6:30 PM

by Roy Mabasa

Retired Supreme Court Associate Justice Antonio Carpio will stand as counsel for a petition to hold Chinese President Xi Jinping and other Chinese officials criminally accountable for their actions in the South China Sea before the International Criminal Court (ICC), former Foreign Affairs Secretary Albert del Rosario announced on Wednesday.

Retired Supreme Court Associate Justice Antonio T. Carpio

“We are submitting our Response this week to the International Criminal Court’s Prosecutor, and I am happy to announce that Justice Tony Carpio has agreed to join our quest for justice, as our counsel in this ICC Case,” Del Rosario said in his opening remarks in a webinar on Southeast Asia’s China challenge.
With Carpio’s vast experience as a legal luminary with “unparalleled wisdom and expertise in the South China Sea issue”, Del Rosario is confident that the former magistrate will “surely bolster our efforts in the ICC.”

The former top Filipino diplomat was referring to a Communication that he and former Ombudsman Conchita Carpio Morales had filed with the Office of the Prosecutor of the ICC on March 13, 2019.

As private sector petitioners, they described in the document how the Chinese leader and other Chinese officials committed crimes against humanity by “intentionally depriving Filipinos and other coastal inhabitants in the South China Sea of their food, resources, and livelihood.” 

“We are all familiar with China’s continuing unlawful oppression in the South China Sea. These include preventing our fishermen from pursuing their livelihood in Scarborough Shoal and in our West Philippine Sea, blocking the development of our natural resources, mercilessly destroying our marine environment, erecting military facilities in our waters, and ridiculously confronting our President with the threat of war,” Del Rosario pointed out.

On December 5, 2019, the ICC Prosecutor’s Office raised some “jurisdictional concerns” on the communication, stating that for the ICC to take jurisdiction, the crimes being alleged in the document should occur in Philippine territory, which includes its territorial sea. 

More than a week later, petitioners Del Rosario and Carpio-Morales responded to the ICC Prosecutor conveying their intent to submit a more extensive discussion on why the acts of Chinese officials as they earlier describe “fall within the territorial jurisdiction of the International Criminal Court” as well as to give new facts and information to supplement their communication. 

If it is shown that the crimes described in the Communication occurred not only in the Philippines’ Exclusive Economic Zone (EEZ) but also within its territorial sea or landmass, Del Rosario argued that the ICC has basis to proceed with their communication. 

Among the citations mentioned in their response were the destructive, massive illegal reclamation and artificial island-building undertaken by Chinese officials in the Spratlys that occurred in Subi Reef, which is within the territorial sea of Pag-asa (Thitu). Pag-asa, according to the former DFA chief, is Philippine territory with a permanent community of Filipinos and is controlled and administered by the Philippines.
Second, he said Chinese officials continue to enforce their hostile blockade within the territorial sea of Scarborough Shoal that prevents Filipino fishermen from pursuing their livelihood. These fishermen, he added, live along the coast of Luzon and rely on their fish catch to survive.
“The effects of these Chinese criminal actions, therefore, extend to the Philippines’ coast of Luzon,” he said.
Third, over 322 Chinese militia vessels have conducted “swarming” activities in the Philippines’ territorial sea and shores of Pag-asa for more than 600 days since 2018, and remain in the area indefinitely. Del Rosario said these illegal Chinese activities are “meant to intimidate Filipinos, harass those Filipinos living in Pag-asa, and prevent fishermen from pursuing their livelihood.”

Both Del Rosario and Carpio-Morales likewise noted the June 2019 ramming of F/B Gem-Ver in Reed Bank where 22 Filipino fishermen were left to die until they were rescued by a Vietnamese fishing vessel and ultimately recovered by the Philippine Navy.
“While this occurred in the Philippine EEZ, this falls within ICC jurisdiction because the Chinese committed this crime against a Philippine-registered vessel,” he said.
Also included in the communication were senior executives of China Communications Construction Company (CCCC) following confirmation by the United States that CCCC and its subsidiaries undertook the massive and destructive illegal reclamation and artificial island-building in the South China Sea.

CCCC is the same company involved in the $10-billion Sangley Point International Airport project in partnership with Lucio Tan’s MacroAsia Corp.