Complaint of China’s “Crimes Against Humanity” Likely to Fail

Former Philippines Secretary of Foreign Affairs Albert del Rosario and former Philippines Ombudsman Conchita Carpio-Morales have filed a complaint with the International Criminal Court (ICC) against China’s President Xi Jinping, its Foreign Minister Wang Yi and the Chinese Ambassador to the Philippines for “crimes against humanity”.

The plaintiffs allege that these persons perpetrated China’s environmental damage in the South China Sea, thereby “seriously undermining the food and energy security of the coastal states, including the Philippines”. Their courage and initiative are admirable and they have garnered some support among the Philippines public for their Quixotic quest. But the chances of legal success are quite slim.

The case would be precedent setting for the ICC and international environmental law in general. Thus, the principles and the cause and effect of the crime would have to be crystal clear to be taken up by the ICC. This case does not seem to meet this requirement.

The first legal hurdle will be to convince the ICC that it has jurisdiction. The ICC has provided an opportunity for such complaints by issuing a directive in 2016 that said it would prioritize crimes that resulted in “the destruction of the environment”.

The plaintiffs claim that China’s activities constitute a “systematic plan to take over the South China Sea by [China] President Xi Jinping and other Chinese officials”. They further allege that in the implementation of this plan, they have committed crimes within the jurisdiction of the court, constituting one of “the most massive, near permanent and devastating destruction of the environment in humanity’s history”. They assert that it deprived 320,000 Filipinos of their livelihood and that this was thus a “crime against humanity”.

The bar is quite high for jurisdiction for environmental damage as a crime against humanity. First of all, China is not a member of the ICC. Neither is the Philippines, which defected from the ICC agreement. But the complaint was filed just before the Philippines withdrew. The question is whether citizens — in this case leaders of a non-party nation — fall under the jurisdiction of the ICC. The plaintiffs argue that the ICC can take jurisdiction over Chinese nationals who commit ICC crimes in the territory of a member (the Philippines). They claim that these leaders “directly caused… the building of artificial islands [and] the deterioration of fisheries resources that harmed 320,000 fishermen”. But the persons named in the complaint were never in the area and thus did not directly commit the alleged crime.

Another hurdle is whether the environmental damage is a “crime against humanity”. The ICC statute defines crimes against humanity as part of a widespread or systematic attack directed against an identifiable part of a civilian population”. Further, the crime must be “part either of a government policy… or of a wide practice of atrocities tolerated or condoned by a government…”.

China has damaged the environment in the Spratly area. According to the international arbitral tribunal that ruled against China in the case brought against it by the Philippines, “China has caused severe harm to the coral reef environment and violated its obligation under the UN Convention on the Law of the Sea to preserve and protect fragile ecosystems and the habitat of depleted, threatened or endangered species”.

But it is highly questionable whether this was at the scale and with the direct intent required to be a crime against humanity. It would probably be necessary to prove that the perpetrators knew what the consequences of their decisions would be and that their “intent” was more than “indifference to the plight of communities affected by environmental damage”.

It would seem that these alleged crimes were against the environment and not the required “systematic attack directed against a civilian population”. The environmental damage, while serious, is hardly “the most massive, near permanent and devastating destruction of the environment in humanity’s history. Even if this exaggeration was qualified by “in the South China Sea,” it pales in comparison to the damage wrought in the area in WWII, and by the long-term destructive and officially long ignored fishing there by citizens of several countries including the Philippines. To bolster their case, the plaintiffs cite expert testimony before the arbitration panel that “what we’re looking at is potentially one of the world’s worst fisheries collapses ever.”

While this may be so, it would be nigh impossible to demonstrate that such a collapse is directly due to the environmental damage perpetrated by China. It may have contributed in small part but the major cause is more likely overfishing by many nations and the long-term and ongoing depletion of larvae habitats like coastal reefs and mangroves in all coastal countries in the region, including the Philippines. The definition of environmental crimes against humanity would seem to better fit the US, U.K. and French nuclear testing in the Pacific and US environmental depredations in Vietnam, including the widespread defoliation and poisoning of the ecosystem using Agent Orange. But even then, it would probably be necessary to scientifically prove a link between cause and effect and this is notoriously difficult to do.

China’s 2012 moratorium on fishing that theoretically applied to Filipinos in parts of the Philippines’ Exclusive Economic Zone, and its blocking of Philippines fishermen from the disputed Scarborough Shoal might be considered by the plaintiffs as fitting the definition of “crimes against humanity”. But the question would then become: Were the practical effects sufficiently severe and “widespread” to qualify? As prominent Philippines lawyer Jay Batongbacal observes, “the loss of livelihood does not per se fall under the ICC’s categories of crimes”. Moreover, the ICC would have difficulty in taking jurisdiction over any such “crimes” that were committed within the 12 nm territorial sea of disputed features since it is not clear who is the sovereign.

In any event, China will almost certainly ignore the proceedings and any result. Chargè d’ Affaires Tan Qingsheng of the Chinese Embassy in Manila told state-run Philippine News Agency that the action of Del Rosario and Carpio-Morales did not “represent the views of the Philippine government and people” and would not “stop the development of bilateral relations.” China’s state news agency also quoted Tan as saying that China had no plans to respond to the complaint.

Del Rosario was one of the principals involved in the Philippines arbitration case against China which it won handily. But China refused to recognize or accept the results and appears to be winning politically in its aftermath. Philippine President Rodrigo Duterte declined to pursue the verdict and this infuriated Del Rosario and others who were involved in or supported the case. The arbitration case had unintended long-term negative consequences for many countries. This case and the precedent it sets could similarly come back to haunt the South China Sea coastal nations as well as others operating there. If the bar for environmental crimes against humanity is so low as to be satisfied by damage to some isolated coral atolls and speculative links to the decline of fish populations in the entire sea, then many other countries are likely to be dragged before the ICC. This is another reason why the ICC is unlikely to take it up.

The ICC Office of the Prosecutor (OTP) conducts a preliminary examination to decide whether there is a reasonable basis to initiate an investigation. The plaintiffs say they are asking for such a preliminary examination “if only so the court can apprise itself of Chinese crimes committed not only against the Filipino people, also against people of other nations.” Because any individual, group or State can send information to the OTP regarding alleged crimes falling under the jurisdiction of the Court, it has received more than 10,000 communications (complaints) since its establishment in 2002. But it has investigated only a small fraction thereof. This complaint is also unlikely to proceed to the investigation stage.

Nevertheless, the plaintiffs apparently hope that the complaint will embarrass China’s leadership, as well as their own President Rodrigo Duterte and perhaps change their behaviors. But even this too is likely to be like water off a duck’s back and have no lasting effect.