Commentary: Hasn’t reality bitten Carpio yet?

ACTING Chief Justice Antonio Carpio is using the China bogeyman to frighten us out of the decision to withdraw from the International Criminal Court (ICC).

During the oral arguments on the Philippines’ withdrawal from the Rome Statute, the treaty that established the ICC, Carpio warned that pulling out of that treaty would entail losing a “legal deterrent” against China’s possible aggression.

He said that if China established a naval base on Scarborough Shoal or invade the Philippine-occupied Pag-Asa island in the Spratlys, our country would not be able to sue Chinese officials, such as President Xi Jinping and members of the Chinese military for aggression.

Extolling the Rome Statute, Carpio said that it was “the only international treaty in the world that holds military and political leaders of states that commit the crime of aggression individually accountable before an international tribunal. No other.”

Carpio isn’t so precise.

Though the Rome Statute is the only treaty that has established a permanent court for international crimes, such as the crime of aggression, it’s not the only mechanism available in the international political order that could try those crimes.

Article 42 of the UN Charter gives the UN Security Council (UNSC) the power to establish courts that could do that. For example, in 1991, the UNSC established the International Criminal Tribunal to prosecute individuals who committed war crimes in the former Yugoslavia.

The Rome Statute also gave the UNSC the power to refer situations to the ICC. The ICC can assume jurisdiction over those situations even if they are not in the territory of an ICC member state, just like Libya.

In both instances, the permanent members of the UNSC—the United States, China, Russia, France, and the United Kingdom—can veto any move to prosecute their officials in any international tribunal that can try aggression. It’s worth noting that among these five, only France and the UK are members of the ICC.

Now, let’s assume that the Philippines remains at the ICC. The only way any Chinese official could be prosecuted at the ICC is when the international crime happened in the territory of a member country of the court, or if the situation is referred to it by the UNSC. The latter would be farfetched as China or its ally Russia would just veto it.

In determining whether a crime happened within the territory of a member state of the ICC, the territory must be an internationally recognized territory of that state.

The definition of territory that the ICC would certainly use is territory as defined by international law. Maritime-wise, a country’s territory stops at 12 nautical miles (NM) from a country’s baseline. Scarborough Shoal and Pag-Asa island are beyond that 12 NM.

Surely, ICC doesn’t limit territory to those under the effective control of a member state. As international criminal law scholar William Schabas argued in his influential book The International Criminal Court: A Commentary on the Rome Statute, the treaty doesn’t require the state to “actually exercise effective control” over its territory.

Schabas used the example of northern Cyprus, occupied by Turkey since it invaded it in 1974. The international community, as expressed in different resolutions of the UNSC, considers northern Cyprus as part of the territory of Cyprus. Thus, though under the effective occupation of Turkey, which isn’t a member of the ICC, the court can still have territorial jurisdiction over the international crimes committed in northern Cyprus as it’s recognized as a territory of an ICC member state.

But Scarborough Shoal and Pag-Asa island aren’t in the same league as northern Cyprus. Which country has sovereignty over these South China Sea features is still disputed. No matter how much we convince ourselves that they are ours, if they are not internationally recognized as part of our territory, the ICC won’t also recognize it as part of our territory.

The ICC is not the proper forum that can decide on sovereignty issues.

To resolve the Scarborough Shoal sovereignty issue, it’s either you go to the International Court of Justice or to an arbitration court. Their processes can only be activated by a mutual agreement with China. Meanwhile, to resolve Pag-Asa island’s sovereignty issue, all of its claimant countries—China, Vietnam and the Philippines—must be involved in the proceedings.

Lastly, Carpio has a very unrealistic idea of “legal deterrence” in international relations.

Law in the international political order doesn’t have the deterrence effect of law in the domestic political order.

In the domestic political order, people are deterred by law from committing a crime out of fear of the force behind the law: You break the law, the government takes away your freedom. Decisions of local courts have force behind them. In the international political order, unless the law or court is created or backed by the UNSC, the law or the court decision would be nothing but a bunch of elegantly worded sentences.

But what exactly made Carpio think that a court with no real force behind it could deter his hypothetical Chinese actions, if in the first place our ally, with a very powerful military, couldn’t scare them off from establishing a naval base in Scarborough Shoal or taking over Pag-Asa island?

(Published in The Manila Times on 11 October 2018)

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