State sovereignty, the ICC, and the South China Sea submission

The International Criminal Court (ICC) has made headlines in the past month. The withdrawal of the Philippines from the Rome Statute took effect on March 17. This prevents the court from potentially investigating drug-related killings committed after this date, and would find it more challenging to continue its current preliminary examination activities.

Other important developments ensued soon after. Malaysia ratified the treaty, only to signify its withdrawal a month later. Tun Mahathir bin Mohamad’s administration caved to political pressure following criticism that the treaty undermined state sovereignty. In a similar vein, US officials John Bolton and Mike Pompeo have voiced official threats against the ICC in the event that a preliminary investigation be opened on US forces’ alleged war crimes in Afghanistan. The ICC Prosecutor was thereafter denied travel entry into the US, her visa revoked.

A few days ago, the US seemed to have gotten its wish. The ICC Pre-Trial Chamber, in a remarkable ruling, denied the Prosecutor’s request for authorization to conduct a preliminary investigation on Afghanistan. Under the Rome Statute, if the Prosecutor would like to conduct an investigation on its own initiative, it must first secure authorization from the Court. This functions as an additional check on the exercise of prosecutorial discretion. In the Afghanistan situation, the Pre-trial Chamber denied authorization due to “interests of justice,” owing to the “scarce cooperation” that the Prosecutor had received in conducting the preliminary examination. This, according to the Court, significantly reduced the prospects of success of a preliminary investigation.

The hostility to the ICC underscores the tension between the Court’s mandate and the notion of state sovereignty. Interestingly, defending sovereignty was the motivation behind the communications submitted by former Foreign Affairs Secretary Albert del Rosario and former Ombudsman Conchita Carpio-Morales to the ICC Prosecutor. The submission extended the legal impact of the 2016 Permanent Court of Arbitration ruling in favor of the Philippines against China. In Carpio-Morales’s words, this would guard against impunity.

The issue of state sovereignty is one of the most fundamental tenets of the Westphalian international order. The human rights regime was designed around states as the proper subjects of international law. States are thus the primary duty-bearers of human rights obligations. In this context, the Rome Statute regime reinforces, rather than undermines, state sovereignty. The principle of complementarity, which prohibits the ICC from intervening unless the situation-country is “unable or unwilling” to genuinely prosecute persons most responsible for alleged criminal acts, supports this state-based model. The ICC will not step in unless states cannot do it themselves.

This important point always seems to be lost on states. The Rome Statute regime draws the most reticence among states because criminal law is the area where the authority of the state is most potent, and threatened by international law.

The communications alleged environmental destruction on the South China Sea and requested a preliminary examination be conducted for possible crimes against humanity. Curiously, the communications did not focus on the more textually grounded war crime provision under Article 8(2)(b)(iv) of the Rome Statute. This section penalizes the intentional launching of an attack with knowledge that such attack will cause widespread, long-term and severe damage to the natural environment, and would be clearly excessive in relation to the concrete and direct overall military advantage anticipated. The Court can prosecute for war crimes when committed as part of a plan or policy or as part of a large-scale commission of such crimes. This includes serious violations of the laws and customs applicable in an international armed conflict (when two or more states are engaged in an armed conflict). Can China’s actions constitute an act of war?

Article 8(2)(b)(iv) does not promise a straightforward solution. For instance, the definition of an “attack” in the context of environmental destruction has yet to be clarified by the court in an actual case. Designating China’s actions as a possible war crime will also have significant political ramifications. A crimes-against-humanity charge also poses problems. The Rome Statute recognizes persecution and other inhumane acts as modes of committing crimes against humanity, not environmental damage per se. This means that allegations on environmental damage must be linked to the material elements of acts that can form the basis of a crimes against humanity charge.

Both options raise due process questions. Fundamental to criminal law (the Rome Statute no exception) is the rule that crimes be clearly articulated and its parameters defined. In the uncharted territory of environmental crimes, many ambiguities can put this tenet at risk.

Some referred to the Office of the Prosecutor’s 2016 Policy Paper on Case Selection and Prioritisation in discussing the South China Sea submission. This reliance is misplaced. The Policy Paper is only useful for purposes of preliminary investigation, not preliminary examination. At this point it is entirely up to the Prosecutor whether to even conduct a preliminary examination on the South China Sea submission. If it does, and it finds reasonable basis to proceed with a preliminary investigation, then it must request the Court for authorization, and only then can it focus on specific cases and apply the policies set out in the Policy Paper.

In this regard, the recent ruling on the Afghanistan situation becomes important. Where the prospect of success is now considered an important factor in granting or denying preliminary investigation requests, the submission’s utility to Filipinos will likely remain political than judicial.

Jenny Domino is a lawyer and a Fellow for Democracy and Human Rights of Stratbase ADR Institute.