China’s new law on SCS risks war crimes

Recall the 1928 Kellogg-Briand Pact (KBP), which required all signatories to “renounce war as an instrument of national policy.” Fast forward to the 1946 Nuremberg Trials and now the new Chinese law authorizing the Chinese Coast Guard to use force in enforcing its laws in the South China Sea (SCS), including the West Philippine Sea. These three events are interlinked.

Nationalist China signed the KBP in 1928. The Communist Chinese regime as the successor state is bound by the provisions of the KBP. The Nuremberg Trials were based on the violations of the KBP by Nazi Germany. However, China’s obligation goes beyond the KBP; as a member of the United Nations, it must not use threats or use of force in its relations with other member nations. Authorizing its coast guard to use force is a threat to the other claimants in the South China Sea dispute.

The charged atmosphere in the South China Sea caused by China calls for preemptive action, which we should have taken earlier. China has imposed a blockade on Ayungin and Scarborough Shoals. A blockade is an act of war. The blockaded country can use force to break a blockade. Since we have no such means, we should have filed a petition with the UN citing the blockade as a threat to peace and asking the UN to declare the blockade as illegal. The ruling of the Hague Arbitral Tribunal nullifying China’s nine-dash-line claim means that we should easily get this favorable ruling in the UN General Assembly. China will veto any adverse resolution filed in the Security Council.

If China refuses to lift the blockade, its actions will be deemed “Crimes against Peace” under the Nuremberg principle. This principle was the basis for indicting German generals—their participation in planning Hitler’s war of aggression. There is similar premeditation in Beijing’s actions in the West Philippine Sea. The construction of artificial islands and their militarization required long-range planning.

Based on the ruling at Nuremberg and by the Hague Tribunal, China’s nine-dash line is now as spurious as Hitler’s Lebensraum. Those who implemented Hitler’s Lebensraum through genocide and the Holocaust were deemed to have committed war crimes and failed to implement legitimate laws. This gave rise in Nuremberg to declaring certain organizations like the SS (the armed force of the Nazi Party) as criminal organizations. Their alibi—that they were only following the orders of a legitimate government in committing these acts—was not accepted. Similarly, if the Chinese Coast Guard keeps on enforcing Chinese laws in the West Philippine Sea that cause harm to our nationals, it could, under the Nuremberg Doctrine, be declared a criminal organization.

US President Franklin D. Roosevelt used the opinion of William C. Chanler, deputy director of the Military Government and a lawyer, in endorsing the Nuremberg Trials, to wit: “In the Kellogg-Briand Pact, the signatories ‘condemn recourse to war’ and ‘renounce it as an instrument of national policy.’ If any of the signatories violate the pact by invading another country, the aggressor would lose the rights of a lawful belligerent. Its acts of war in the invaded country would therefore be murders and assaults under the domestic law of the invaded country. Thus, Poland and other countries invaded by Germany could demand the extradition of the German leaders and the charges against them be stated as murders and other crimes under these countries’ own laws.”

Thus, under the Nuremberg doctrine, we could arrest Chinese nationals who enforce their laws in our territory and charge them with murder, kidnapping, or other crimes. What is needed, however, is for us to engage in the traditional balance of power practice and form a coalition to enforce UN resolutions in the West Philippine Sea. We cannot, on our own, enforce UN resolutions against China. That is too much to expect under the subservient diplomacy, falsely presented as an independent foreign policy, of the current administration.

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Hermenegildo C. Cruz is a retired career ambassador and holds a master of arts degree in law and diplomacy from the Fletcher School of Law and Diplomacy in Massachusetts, USA.