Under the Rome Statute that created the International Criminal Court (ICC), individuals who commit a crime against humanity may be charged before the ICC. This is true even if such individuals are citizens of a state that is not a party to the Rome Statute, provided that the crime is committed in the territory of a state that is a party to the Rome Statute.
Former Foreign Affairs Secretary Albert del Rosario and former Ombudswoman Conchita Carpio-Morales filed last March 2019 a “communication” with the ICC charging China’s President Xi Jinping of ordering the massive reclamation and island-building in the Spratlys that resulted in the destruction of several atoll reefs, including Mischief Reef and Subi Reef. These atoll reefs, the spawning ground of fish, are the source of food and livelihood of tens of millions of people living along the coast of countries surrounding the South China Sea.
Under the Rome Statute, China’s destruction of the marine environment in the Spratlys constitutes an “inhumane act” intentionally causing great suffering to Filipino fishermen and their families, amounting to a crime against humanity. However, the Office of the Prosecutor of the ICC released a report last Dec. 5, 2019, that President Xi cannot be prosecuted before the ICC because the crime charged was not committed within Philippine territory.
The Office of the Prosecutor ruled:
“Xxx [T]he Court may exercise territorial jurisdiction over the alleged crimes to the extent that they may have been committed in Philippine territory during the period when the Philippines was a State Party, namely 1 November 2011 until 16 March 2019. The information available confirms that the alleged conduct in question occurred in areas that are outside of the Philippines’ territorial sea (i.e., in areas farther than 12 nautical miles from its coast), but nonetheless within areas that may be considered to fall within its declared EEZ. In this context, the Office’s analysis has been conducted ad arguendo without taking a position on the different disputed claims with respect to these areas. However, the Office has concluded that a State’s EEZ (and continental shelf) cannot be considered to comprise part of its ‘territory’ for the purpose of article 12(2)(a) of the Statute.”
Apparently, the Office of the Prosecutor relied on the 479-page Award of July 12, 2016, in the South China Sea Arbitration which declared that Mischief Reef is a low-tide feature beyond the territorial sea of any state. Admittedly, Mischief Reef does not form part of Philippine territorial sea.
However, the Office of the Prosecutor conspicuously overlooked paragraph 373 of the same Award of July 12, 2016, categorically declaring that Subi Reef is part of the territorial sea of Thitu Island, which is also known as Pag-asa Island, the largest island occupied by the Philippines in the Spratlys. The Philippines has occupied Pag-asa since the early 1970s, long before the People’s Republic of China occupied any island or rock in the Spratlys.
Paragraph 373 of the Award declared: “As Subi Reef lies within 12 nautical miles of the reef on which Sandy Cay is located, it could serve as a basepoint for the territorial sea of Sandy Cay. The Tribunal also notes, however, that even without a high-tide feature in the location of Sandy Cay, Subi Reef would fall within the territorial sea of Thitu as extended by basepoints on the low-tide elevations of the reefs to the west of the island.”
Sandy Cay, which can be completely submerged during storms, lies less than two nautical miles from Pag-asa, and is thus within the 12-nautical mile territorial sea of Pag-asa. Even without Sandy Cay, there are other low-tide features within the territorial sea of Pag-asa that can serve as basepoints to extend the 12-nautical mile territorial sea of Pag-asa to include Subi Reef.
In its Award, the Tribunal correctly ruled that Subi Reef forms part of Pag-asa’s territorial sea, in the same way it correctly ruled that Mischief Reef is beyond the territorial sea of any state.
China’s destruction of Subi Reef, upon orders of President Xi, clearly took place within Philippine territorial sea. This merits a second look by the Office of the Prosecutor.