Journal of International Criminal Justice Advance Access originally published online on July 6, 2005
Journal of International Criminal Justice 2005 3(3):608-620; doi:10.1093/jicj/mqi056
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China's Attitude Towards the ICC
* Professor, Law School of Renmin University, China; JD; Acting Director, Research Centre of Criminal Jurisprudence, Renmin University; Deputy Secretary-General of the International Association of Penal Law (AIDP) [ljp{at}ruc.edu.cn]. ** Professor, Law School, Hebei University, China; JD; post-doctoral fellow of the Law Institute of China, Academy of Social Sciences.
Unlike the USA, China has few overseas military commitments, and therefore is not concerned that its troops may one day come under International Criminal Court (ICC) jurisdiction. Moreover, China is not in a position to pressurize other countries to sign bilateral agreements as the USA has done. Whether or not China eventually accedes to the Rome Statute, it cannot avoid the jurisdiction of the ICC in other parts of the world. There are five main reasons for China's opposition to the ICC. First, its jurisdiction is not based on the principle of voluntary acceptance; furthermore, complementarity gives the ICC the power to judge whether a state is able or willing to conduct proper trials of its own nationals. Secondly, also war crimes in internal armed conflicts fall under the jurisdiction of the ICC. Thirdly, crimes against humanity are prohibited in time of peace as well. Fourthly, the inclusion of the crime of aggression within the jurisdiction of the ICC weakens the power of the UN Security Council. Fifthly, the proprio motu power of the Prosecutor may make the ICC open to political influence. The authors try to show how all these objections can be legally met and set forth a series of considerations that would make China's participation in the Court a welcome development in China's national and international interests. They finally argue that the Chinese government should take an open attitude, taking into consideration the Court's actual performance, and should not, therefore, exclude the possibility of acceding at an appropriate time to the ICC Statute.
1 Article 9 of the Criminal Law of the PRC reads as follows: ‘This Law shall be applicable to crimes which are stipulated in international treaties concluded or acceded to by the People's Republic of China and over which the People's Republic of China exercises criminal jurisdiction within the scope of obligations, prescribed in these treaties, it agrees to perform’. See also Huang Fang, Study on National Legislation of International Crimes (Beijing: Fangzheng Press, 2001).
2 The other six were the USA, Libya, Yemen, Iraq, Qatar and Israel.
3 Under Art. 125 of the Rome Statute, the deadline for UN members signing the Statute was 31 December 2000. The USA, Israel and Iran signed the Statute on that date, bringing the total number of signatory countries to 139.
4 At this time, the UN peacekeeping force in East Timor numbered three US citizens among its military personnel.
6 Article 16 reads: ‘No investigation or prosecution may be commenced or proceeded with under this Statute for a period of 12 months after the Security Council, in a resolution adopted under Chapter VII of the Charter of the United Nations, has requested the Court to that effect; that request may be renewed by the Council under the same conditions.’
1. 8 See Lin Xin, Liu Nanlai, Study on International Criminal Law (Beijing: Renmin University of China Press, 1999), 253–254.
9 The critical opinions of Chinese scholars are mainly expressed at national or international seminars or conferences, such as the Seminar on the Current Issues of International Criminal Law, held by the National Research Centre of Criminal Law of Renmin University of China (RUC) in Guiyang (August 2000), the International Seminar on International Crimes and International Criminal Law co-organized by the National Research Centre of Criminal Law of Renmin University of China (RUC) and the University of Hong Kong Law School (April 2002), the International Seminar on the International Criminal Court held at Haikou, Hainan (9–12 February 2003), and the Symposium on the Comparative Study on International Criminal Law of the Chinese Society of International Law in Beijing (15–17 October 2003).
10 See S.A. Williams, in O. Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court (Baden Baden: Nomos Verlagsgesellschaft, 1999), at 390.
11 See S.A. Williams, in Triffterer, supra note 10, at 390.
12 GA Res. 45/116, 14 December 1990.
13 See Wang Xiumei, A Study on ICC (Beijing: Renmin University of China Press, 2002), 272.
14 Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Tadi
(IT-94–1-AR72), Appeals Chamber, 2 October 1995.
15 See A. Cassese, International Criminal Law (Oxford: Oxford University Press, 2003), 52.
16 W.J. Fenrick, in Triffterer, supra note 10, at 180.
17 ‘The International Tribunal shall have the power to prosecute persons responsible for the following crimes when committed in armed conflict, whether international or internal in character, and directed against any civilian population: ....’
18 Such as the 1948 Genocide Convention, the 1968 Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity, and the 1973 Convention on Apartheid.
19 Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Tadi, supra note 13.
20 M. Bergsmo and J. Peji, in Triffterer, supra note 10, at 360.
21 Under Art. 15(4): ‘If the Pre-Trial Chamber, upon examination of the request and the supporting material, considers that there is a reasonable basis to proceed with an investigation, and that the case appears to fall within the jurisdiction of the Court, it shall authorize the commencement of the investigation ....’
22 See Lu Jianping, ‘Cultural Orientation in China's Entry into the International Criminal Court’, in Special Analysis of International Criminal Law and International Crimes (China's Public Security University Press, 2002), 325–331.
23 See the address by Liu Zhenmin, General Director of Treaties and Laws of the Ministry of Foreign Affairs, PRC, to the Symposium on the Comparative Study of International Criminal Law and the Rome Statute organized by the Chinese Society of International Law (Beijing, 15–17 October 2003).