Aside from Xi's arrest, ICC complainants eye reparation for Filipino fishermen

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Metro Manila (CNN Philippines, March 22) — Former government officials who filed a complaint against Chinese President Xi Jinping at the International Criminal Court (ICC) are hoping for his arrest and the possible financial reparation for Filipino fishermen whose livelihood were affected in the South China Sea dispute.

"If enough credible witnesses are produced, we could be reaching a point of having a formal investigation which could lead to a warrant of arrest," former Foreign Affairs Secretary Albert del Rosario said in a press briefing Friday.

He was joined by fellow complainant, former Ombudsman Conchita Carpio Morales, who stressed that the ICC can prosecute China, a non-state party because the "crime (was) committed within the territory" of a state party - the Philippines.

Del Rosario and Morales were signatories in the 17-page complaint - which the ICC calls communication - that was filed on March 15, two days before the Philippines' withdrawal from the international tribunal took effect.

Morales said the ICC had acknowledged receipt of the communication. It could next launch a preliminary examination, similar to what is being conducted now on alleged extrajudicial killings in President Rodrigo Duterte's war on drugs. The initial review would determine if the ICC could launch a full-blown investigation, which could later progress to a trial and conviction.

Del Rosario said Xi "is the one that directly caused significant problems" in the South China Sea, including the building and militarization of artificial islands, damage to marine environment, and harassment of Filipino fishermen.

"We demand accountability from those who destroy marine areas," Morales said.

Fishermen's plight

Aside from Xi's arrest, Morales said "among other things that we expect to result from this (filing) would be reparation."

"That's not bad if it will be used to improve the lives of the fishermen. We are looking at hopefully… bringing the issue to that point where there can be some negotiations on how the lives of our people can be improved," del Rosario said.

Their communication cited written testimonies from fishermen who said they lost their livelihood as China took over Scarborough Shoal in 2012. They recalled the controversial standoff which prompted Manila to file a case against China at the Permanent Court of Arbitration in The Hague.

In July 2016, the international tribunal invalidated China's sweeping claims to the South China Sea. It also and 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 interfered 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. China has refused to recognize the landmark ruling.

Jowe Legaspi, one of the fishermen whose affidavits were used in the communication, fears fishermen will all the more be harassed by Chinese vessels because of the legal challenge at the ICC.

"Ang concern ko lang baka di kaya pag-initan na naman yung mga mangingisda," Legaspi told CNN Philippines in a phone interview. But he said he is not losing hope that fishermen will one day enjoy the freedom to explore the country's marine resources without any fear or threat from anyone.

David and Goliath

"Are you reminded of the case of David and Goliath?" Morales asked as she stressed being unfazed in fighting a "powerful" Xi. "That he is powerful does not deter anyone to file a case against him," she added.

She revealed that the decision to file a complaint against Xi was reached after Del Rosario and his friends, whom they did not name, talked about the fishermen's plight over breakfast.

"If it took that long for the group to file the case it was because given the friendliness of the Philippines to China, we expected reciprocity from the point of view of China but it seems there was no reciprocity that was shown," Morales said.

The Duterte government has been criticized for pursuing friendlier ties with China amid the long-standing maritime row in the South China Sea. Duterte has also refused to bring up the arbitral ruling with China, although he promised to do so within his term. Del Rosario said the "shelving" of the country's win in The Hague also contributed to their decision to take the issue to the ICC.

"There used to be a sense that would be expressed that international law only applies to small countries and very early on we took the opposite view," Del Rosario said. "We have that we're very strong in terms of international law being applicable to all countries no matter what size and I think we proved our point when we won the arbitral tribunal outcome."

"We hope to win our point again in this ICC effort," he added.

A futile exercise?

In a statement Saturday, however, Presidential Spokesperson Salvador Panelo reiterated the challenges that the complaint may face.

He said while Morales and del Rosario may have the right to file the complaint at the ICC, but whether it would prosper was another matter.

Aside from the country not being a member of the ICC, he said, the court has no jurisdiction over China.

"The filing of the complaint may be a futile exercise," said Panelo.

Panelo also said neither Morales nor del Rosario has the right to file a complaint on behalf of the country, adding that even if they were so authorized, the Philippines was never under ICC jurisdiction as the Rome Statute never took effect — meaning the country was not a State Party to the ICC.

The Rome Statute does not also include environmental damage as a crime, he added.

"The critics and detractors will have a field day criticising the President in the event the case is dismissed by the ICC for lack of jurisdiction. They can claim that it was a mistake for the Philippine government to withdraw its membership from the Rome Statute as the ICC can no longer serve as a venue to prosecute President Xi for an alleged commission of crime against humanity. We reiterate, however, that the Philippines under the Duterte Administration is engaged in a diplomatic negotiation, through a bilateral consultation mechanism (BCM), over the West Philippine Sea issue," Panelo said.

CNN Philippines' Anjo Alimario contributed to this report.