Atty. Jenny Domino, Democracy and Human Rights Fellow of the Stratbase ADR Institute

The International Criminal Court (ICC) has (unfairly) enjoyed a reputation for undermining state sovereignty. Sovereignty is invoked to justify a state’s refusal to ratify the Rome Statute or a state-party’s withdrawal from the treaty. The Philippines withdrew from the treaty for precisely this reason. In 2017, before the Assembly of State Parties of the Rome Statute, the Philippine government had a message for the Court: Keep off or we will keep out. And last month on March 17, the Philippines officially left.

The communication submitted to the ICC Prosecutor by former Ombudsman Conchita Carpio-Morales and former Foreign Affairs Secretary Albert del Rosario on the West Philippine Sea is thus ironic. The Rome Statute regime, contrary to the usual complaint of how it undermines state sovereignty, is now being used to preserve it. The Social Weather Stations recently released a survey showing that 49% of adult Filipinos see the submission as a message to the international community that China should keep off the islands it has occupied in the West Philippine Sea.

Curiously, the communication cites environmental destruction as a form of crime against humanity. Carpio-Morales and del Rosario were writing “on behalf of [themselves] as Filipinos and the hundreds of thousands of Filipino fishermen persecuted and injured by officials of the People’s Republic of China.” This is a novel – and risky – approach. Criminal prosecution for environmental crimes has relatively no stable footing in international law. International law instead places the burden on individual states to prosecute alleged offenders. The ICC has yet to have a situation where environmental damage figures predominantly to form the basis of a crimes against humanity charge. In the Rome Statute, environmental destruction is not a mode of committing crimes against humanity. Instead, you have traditional acts such as murder, torture, rape, persecution, other inhumane acts, and the like. The allegation of environmental damage must be tethered to these acts.

In the 2016 Policy Paper on Case Selection and Prioritization issued by the ICC Office of the Prosecutor, environmental destruction is seen as one possible indicator of the gravity of the alleged crime, but not the act constituting the crime itself. The Prosecutor will give “particular consideration” to prosecuting Rome Statute crimes committed by means of or resulting in the destruction of the environment. This is an important development, but must be tempered by competing due process concerns. It is a cardinal rule of criminal law that crimes be specifically defined to protect potential defendants. Arguably, environmental damage evades the clarity required by due process standards.

Parenthetically, the 2016 Policy Paper is useful for the preliminary investigation phase, when the Prosecutor is tasked to narrow down the scope of the situation into specific cases. Preliminary investigation is the step after preliminary examination. In contrast, the communication submitted by Carpio-Morales and Del Rosario is not yet even in the preliminary examination phase, much less under preliminary investigation that would be covered by the 2016 Policy Paper. Commentators who cite this as legal basis for the submission are misguided. Nonetheless, the 2016 Policy Paper does demonstrate that environmental destruction is significant in assessing impact and gravity, but cannot be the direct source of the crimes against humanity charge. It must further be mediated by the acts listed as crimes against humanity under the Rome Statute.

Alternatively, Article 8 of the Rome Statute penalizes environmental destruction as a war crime. It is the intentional launching of an attack knowing that such attack will cause widespread, long-term and severe damage to the natural environment, committed as part of a plan or policy or as part of a large-scale commission of such crimes, and would be clearly excessive in relation to the concrete and direct overall military advantage anticipated. However, this could hold serious political implications. Can China’s actions constitute an act of war that would make it potentially liable for this crime?

The submission, more than being a brave and bold move to protect Philippine waters, is a prime example of the tension between state sovereignty and international criminal law. States willingly give up a portion of their sovereignty – their authority to prosecute crimes – when they ratify the Rome Statute. And the Rome Statute counteracts this move by adopting the principle of complementarity. Such principle prohibits the ICC from interfering with a particular situation unless there is a showing that the state is “unable or unwilling” to genuinely prosecute the individuals most responsible for serious international crimes. Thus, the success of the ICC is uniquely based not on the number of its prosecutions, but rather, on the number of domestic prosecutions that its complementary mandate encourages.

For the legal scholar Eyal Benvenisti, state sovereignty is “inherently tied to” the notion of individual freedom. A nation-state’s sovereignty, or its freedom from intervention from other states, is a precondition to the enjoyment of its citizens’ individual freedoms. Criminal law demonstrates this concept. It is where the authority of the state is most potent in telling its subjects what it can and cannot do. A state’s “freedom from” is thus considered necessary for its people to exercise their “freedom to.”

This encapsulates the essence of the South China Sea submission. To protect the Filipino people generally, and Filipino fishermen, particularly, the communication aims to hold to account the foreigner (China) trying to seize Philippine waters and interfering with Philippine sovereignty. Consequently, the communication tries to guarantee the Filipino people’s individual freedoms. It is a classic “freedom from”-“freedom to” formulation situated within a legal regime where state sovereignty itself is often negotiated and contested.