Symposium

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ICC and Non-Party States

China’s Attitude Towards

the ICC
Lu Jianping* and Wang Zhixiang**

Abstract
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.

* 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@ruc.edu.cn].
** Professor, Law School, Hebei University, China; JD; post-doctoral fellow of the Law Institute
of China, Academy of Social Sciences.
............................................................................
Journal of International Criminal Justice 3 (2005), 608^620 doi:10.1093/jicj/mqi056
ß Oxford University Press, 2005, All rights reserved. For permissions please email journals.permissions@oupjournals.org
 China’s Attitude Towards the ICC 609

1. Introduction

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After more than half a century’s efforts, the Rome Statute of the International
Criminal Court (‘the Rome Statute’) was signed on 17 July 1998 at the
United Nations Diplomatic Conference of Plenipotentiaries on the
Establishment of an International Criminal Court. On 1 July 2002, this
first permanent international criminal judicial organ in history was estab-
lished at The Hague. This is an important milestone in the development
of international criminal law; it will have significant effects in the fields of
international law, international criminal law and international relationships.
China believes that the prosecution and punishment of international
crimes are the inescapable responsibilities of every country. When the
criminal law of the People’s Republic of China (PRC) was newly revised
in 1997, certain international crimes were included, and the principle of
universal criminal jurisdiction was laid down. Under this principle, China is
obliged to exercise jurisdiction over the crimes stipulated in the international
treaties to which she is a signatory.1 As one of the permanent members of the
UN Security Council, and the world’s largest developing country, China has
consistently supported the establishment of a universal international criminal
court which is independent, impartial and effective. China believes that such a
court would be a helpful supplement both to national judicial institutions
and to the international criminal cooperation system. China also actively
participated in the negotiations for the Rome Statute, and made significant
contributions to it. However, when the Rome Statute was signed by an over-
whelming majority of states, China was unexpectedly one of only seven coun-
tries to cast a vote against the Statute.2 While some of those who failed to vote
or voted against the Rome Statute in July 1998 eventually signed before the
deadline, China has never changed its stance.3 While it is the sovereign right
of a country to choose whether to sign, ratify or accede to a treaty, with this
choice being mainly determined by a country’s national situation, more and
more countries have ratified or acceded to the Rome Statute as a result of the
universal demand for effective punishment of international crimes.
What are the real reasons for China’s decision to vote against the ICC
Statute? In the light of this decision, how will the ICC be made effective?
Is it better for China’s own national interests to be within or without the
ICC? This paper will briefly analyse China’s reasons for refusing to join the
ICC, and discuss the approach it should adopt in the future.

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.
610 JICJ 3 (2005), 608^620

2. Analysis, in the Light of American Attitude,

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of the Reasons for the Chinese Government’s
Refusal to Join the ICC
Although the USA, which also plays a significant role on the international
stage, signed the Rome Statute in December 2000, the current US adminis-
tration does not support the ICC and, in May 2002, it stated that it would not
ratify the Statute. An analysis of the reasons why the USA refuses to ratify the
Statute may help us to understand China’s own decision in this matter.
The USA has deployed its troops in countries all over the world, and
American troops form the main part of the UN peace-keeping force
authorized by the Security Council. In some circumstances, it is possible
for the ICC to exercise jurisdiction over criminal suspects from non-States
Parties, which means US soldiers are faced with the possibility of being
indicted by the ICC for acts committed on the territory of a State Party.
The USA is strongly opposed to this. Since the adoption of a pre-emptive
counter-terrorism strategy as part of its global diplomacy, the possibility
has significantly increased that the USA will be involved in initiating war.
It therefore remains concerned that its soldiers might be indicted by the ICC
for crimes committed abroad.
On 19 June 2002, US representatives declared to the UN Security
Council that the USA would not take part in any peace-keeping action
organized by the United Nations unless the ICC granted US citizens immunity
from prosecution. On the day of the establishment of the ICC, the USA stated
that all American military personnel were to be withdrawn from the UN
peacekeeping force in East Timor.4 The USA also exercised its veto power
in the UN Security Council, so that a resolution on extending the UN peace-
keeping mission in Bosnia was not passed. As a result of these obstructive
moves, on 12 July 2002, the UN Security Council passed a Resolution5
based on Article 16 of the Rome Statute.6 Under this Resolution, the Security
Council:
Requests, consistent with the provisions of Article 16 of the Rome Statute, that the ICC,
if a case arises involving current or former officials or personnel from a contributing
State not a Party to the Rome Statute over acts or omissions relating to a United Nations
established or authorized operation, shall for a twelve-month period starting 1 July 2002
not commence or proceed with investigation or prosecution of any such case, unless
the Security Council decides otherwise;7

4 At this time, the UN peacekeeping force in East Timor numbered three US citizens among
its military personnel.
5 SC Res. 1422 (2002).
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.’
7 SC Res. 1422 (2002), x 1.
 China’s Attitude Towards the ICC 611

This resolution was extended for a further year in July 2003. In 2001, the

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USA also passed the American Servicemembers’ Protection Act. Under this
Act, the State Department is required to contact and negotiate with other
countries to reach agreements not to transfer each other’s citizens to the
ICC. In order to put pressure on other nations, the Act clearly prescribes
that the US government will cancel military assistance to countries which
refuse to sign such an agreement. Many states have signed bilateral agree-
ments with the USA.
There are many differences between China and the USA. First, unlike
the USA, China has few overseas military commitments, and therefore is not
concerned that its troops will be under the jurisdiction of the ICC when
executing national missions or missions of the United Nations.
Secondly, the series of measures taken by the USA with the purpose of
excluding the jurisdiction of the ICC over US nationals were possible mainly
as a result of its special status and influence. At present, China is not in
a position to pressurize other countries to sign bilateral agreements in the
same manner. Whether or not China accedes to the Rome Statute, it cannot
avoid the jurisdiction of the ICC in other parts of the world.

3. The Five Reasons Set Forth by the Chinese

Government for not Joining the ICC
During the negotiations on the establishment of the ICC, China gave
advice and made suggestions, many of which were adopted and included in
the Rome Statute. However, there were some matters on which it was not
possible to reach agreement, and it was for these reasons that China refused
to sign. Its refusal was due to the following five considerations:8
(1) The jurisdiction of the ICC is not based on the principle of voluntary
acceptance; the Rome Statute imposes obligations on non-States Parties
without their consent, which violates the principle of state sovereignty
and the Vienna Convention on the Law of Treaties. Furthermore, the
complementary jurisdiction principle gives the ICC the power to judge
whether a state is able or willing to conduct proper trials of its own
nationals. As a result, the Court becomes a supra-national organ.
(2) War crimes committed in internal armed conflicts fall under the jurisdic-
tion of the ICC. Further, the definition of ‘war crimes’ goes beyond that
accepted under customary international law and Additional Protocol 2
to the Geneva Conventions.
(3) Contrary to the existing norms of customary international law, the
definition of ‘crimes against humanity’ does not require that the state

8 See Lin Xin, Liu Nanlai, Study on International Criminal Law (Beijing: Renmin University of
China Press, 1999), 253^254.
612 JICJ 3 (2005), 608^620

in which they are committed be ‘at war’. Furthermore, many actions

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listed under that heading belong to the area of human rights law rather
than international criminal law; this deviates from the real aim of
establishing the ICC.
(4) The inclusion of the crime of aggression within the jurisdiction of the
ICC weakens the power of the UN Security Council.
(5) The proprio motu power of the Prosecutor under Article 15 of the Rome
Statute may make it difficult for the ICC to concentrate on dealing
with the most serious crimes, and may make the Court open to political
influence so that it cannot act in a manner that is independent and fair.

4. The Chinese Government’s Attitude towards the ICC

Although the Chinese Government’s attitude to the ICC has been clearly
expressed, there is still wide-ranging discussion among Chinese jurists, and
the government’s attitude is seriously criticized by Chinese scholars.9

A. Voluntary Acceptance of the Jurisdiction of the ICC

In accordance with Article 12 of the Rome Statute, a non-State Party
may accept the jurisdiction of the ICC. This leaves to that country’s govern-
ment the choice of whether to accept the Court’s jurisdiction. Therefore,
the jurisdiction of the ICC under the Rome Statute is based on voluntary
acceptance both by States Parties and non-States Parties.
The obligations of States Parties are stipulated in Part 9 of the Rome
Statute. Article 86 lays down a general obligation to cooperate. Other
provisions of Part 9 add details of the general obligation. All obligations
relate to the process of investigation and prosecution.
In accordance with the stipulations of the Rome Statute, the Court has
no right to require non-States Parties to cooperate: there are no obligations
for non-States Parties. In this respect, the Rome Statute does not deviate
from the Vienna Convention on the Law of Treaties.

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).
 China’s Attitude Towards the ICC 613

We turn now to the question of whether the complementary jurisdic-

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tion principle gives the ICC the power to judge whether a state is able or
willing to conduct proper trials of its own nationals, resulting in the ICC
becoming a supra-national organ. First, the legal basis for the ICC comes
from a Statute which was passed in a diplomatic representative assembly of
the United Nations after long discussions among many countries. On 1 July
2002, after the 60th country had ratified the Rome Statute, the ICC was
established. So, from the viewpoint of its legal basis and the process of its
establishment, the ICC is a treaty organization between countries, rather
than a supra-national organization.
Secondly, the main purpose of the complementary jurisdiction principle is
to encourage countries to exercise their own jurisdiction over international
crimes. This principle respects state sovereignty. As stated in Triffterer’s
Commentary on the Rome Statute for the Establishment of the International
Criminal Court, the purpose of the ICC is not to undermine or detract from
national criminal jurisdiction, but to exercise its own jurisdiction when
a country is unable or unwilling to exercise it.10 For this reason, the comple-
mentary jurisdiction principle was acceptable to most states. Thus, under
Article 17 of the Rome Statute, a clear condition is laid down that the ICC
will only have jurisdiction over suspects where the relevant state is ‘unwilling
or unable’ to exercise its own jurisdiction. These standards are the fruits
of long-term discussion and compromise. They are the reflection of the
common will of States Parties. The precise wording comes from many rounds
of negotiations. For example, ‘unjustified delay’ in Article 17(2)(b) of the
Statute was ‘undue delay’ in the draft, but the representatives of some
countries thought that a higher standard was required, so the wording was
changed to reflect this desire. Similarly, under Article 17(3), the requirement
of ‘partial collapse’ of the judicial system of a country was changed to read
‘substantial collapse’.11
In order to fulfil these stipulations in Article 17, the ICC will have to exercise
its judgment over the judicial system of a country in accordance with these
standards. But its evaluation of the judicial system of that country does not
necessarily impair that country’s sovereignty. To take a parallel from extradi-
tion law, under Article 4(4) of the Model Treaty on Extradition agreed by
the UN General Assembly, if the offence for which extradition is requested
carries the death penalty under the law of the requesting state, unless
that state gives such assurance as the requested state considers sufficient,
the death penalty will not be imposed or, if imposed, will not be carried
out.12 This implies an evaluation of the judicial system of a country. This
evaluation is not recognized as an offence against the sovereignty of a state.

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.
614 JICJ 3 (2005), 608^620

Therefore, for the ICC to evaluate the judicial system of one country

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presupposes that the jurisdiction of that state is recognized; it does not
constitute an offence against that state’s sovereignty.

B. War Crimes Under Customary International Law

During the discussions of the Organizing Committee of the ICC Conference,
there was much debate on whether the jurisdiction of the ICC should apply
to war crimes committed in non-international armed conflicts. This problem
reflected the development of customary international law.
After the Second World War, the definition of ‘war crimes’ was confirmed
in the Statute of the International Military Tribunal (IMT) at Nuremberg and
of the International Military Tribunal for the Far East (IMTFE): war crimes
are crimes committed by violating the laws and customs of war. But it is
not clear whether under customary international law this applies to national
as well as international armed conflicts.13
These problems attracted universal attention once again in the 1990s, when
the International Criminal Tribunal for the Former Yugoslavia (ICTY) was
established. The Appeals Chamber of the ICTY addressed the issue in 1995
in an interlocutory appeal in the case of Prosecutor v. Tadic¤ .14 The question
in dispute was whether the accused could be held criminally liable for
breaches of international humanitarian law allegedly committed in an
internal armed conflict; in other words, whether he could be held responsible
for war crimes perpetrated during a civil war. The Appeals Chamber first
considered whether there were customary rules of international humanitarian
law governing internal armed conflicts, and answered in the affirmative.
It concluded that violations of these rules could entail individual criminal
responsibility.15 Charges of war crimes can therefore be brought against
individuals in both domestic and international armed conflicts.
At the establishment of the International Criminal Tribunal for Rwanda
(ICTR), the Security Council admitted the necessity of punishing war crimes
perpetrated in the course of domestic armed conflicts. It therefore appears
to be the universal view that war crimes are punishable whether they are
committed in the course of domestic or international armed conflicts.16
Treaty provisions applicable to internal armed conflicts are contained in
Article 3 common to the 1949 Geneva Conventions, Additional Protocol II
of 1977 and Article 19 of the 1954 Hague Convention for the Protection of

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, Tadic¤ (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.
 China’s Attitude Towards the ICC 615

Cultural Property in the Event of Armed Conflict. The concept of ‘war crimes’

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is not referred to in these treaties. However, war crimes in internal armed
conflicts can be charted through the development of customary international
law. On the basis of the development of customary international law, Article 8
of the Rome Statute lists war crimes which apply to both internal and inter-
national armed conflicts as follows:
(a) grave breaches of the Geneva Conventions of 12 August 1949;
(b) other serious violations of the laws and customs applicable in
international armed conflicts, within the established framework of
international law;
(c) in the case of an armed conflicts not of an international char-
acter, serious violations of Article 3 common to the four Geneva
Conventions of 12 August 1949;
(d) other serious violations of the laws and customs applicable in
armed conflicts not of an international character, within the estab-
lished framework of international law.
The definition of war crimes in the Rome Statute therefore does not go beyond
what is currently accepted under customary international law.

C. Crimes against Humanity under Customary International Law

The definition of ‘crimes against humanity’ in Article 7(1) of the Rome
Statute is:

. . . any of the following acts when committed as part of a widespread or systematic

attack directed against any civilian population, with knowledge of the attack.

A number of acts are listed under this chapeau. There is no requirement

that these crimes should take place within the context of an armed conflict.
The Chinese government held that there should be such a requirement.
Under customary international law, however, it is questionable whether this
view was correct.
In the 1945 London Agreement embodying the Charter of the International
Military Tribunal at Nuremberg, crimes against humanity were defined
as offences committed in execution of or in connection with crimes
against peace or war crimes
hence, as criminal offences linked to war.
The definition in the Charter of the International Military Tribunal for the
Far East is similar. The ICTY Statute adopted a slightly different definition.17
These definitions require that crimes against humanity be committed in

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: . . . .’
616 JICJ 3 (2005), 608^620

the context of an armed conflict. It should, however, be noted that all these

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special tribunals were set up to deal with particular problems in a given
period; they emphasize the time frame and the geographical scope of the
acts, as well as their nature. By contrast, the definition of ‘crimes against
humanity’ in the ICTR Statute is different. In Article 3, it provides as follows:
The International Tribunal for Rwanda shall have the power to prosecute persons
responsible for the following crimes when committed as part of a widespread or systematic
attack against any civilian population on national, political, ethnic, racial or religious
grounds.

Thus, it does not require that crimes against humanity be committed in the
context of an armed conflict.
The requirement of a link between international crimes and armed conflict
has gradually eroded. This is evidenced by such ‘international’ legislation
as Article II(1)(c) of Control Council Law no.10, passed by the four victorious
powers on 20 December 1945, by national legislation (such as the Canadian
and the French Criminal Codes), by case law, as well as by international
treaties.18 This evolution has gradually led to the abandonment of the
requirement for a nexus between crimes against humanity and armed
conflict: customary international law imposes criminal sanctions on those
who commit crimes against humanity, whether they occur in time of war or
peace. The judgment of the remarkable Tadic¤ case proved this point.19
We should admit that on the international stage, Western countries,
especially the USA, often use the weapon of human rights to interfere
with other countries’ internal affairs. Although the ICC is an independent
international judicial organ, there are fears that if the range of the definition
of crimes against humanity is drawn too widely, the ICC could be used to
attack the Chinese government in its conduct of internal affairs. However,
although the crimes under the jurisdiction of ICC have a close relationship
with the protection of human rights, this does not mean that the ICC will
evolve into a court of human rights. The ICC is established in law on the
basis of the Rome Statute. The introduction to the section dealing with
crimes against humanity in the ‘Elements of Crimes’ states:
Since Article 7 [of the Rome Statute] pertains to international criminal law, its provisions,
consistent with Article 22, must be strictly construed, taking into account that crimes
against humanity as defined in Article 7 are among the most serious crimes of concern
to the international community as a whole, warrant and entail individual responsibility,
and require conduct which is impermissible under generally applicable international law,
as recognized by the principal legal systems of the world.

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, Tadic¤ , supra note 13.
 China’s Attitude Towards the ICC 617

Therefore, the scope of crimes against humanity is strictly limited and con-

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fined to acts which take place in the context of a widespread or systematic
attack against a civilian population, rather than common violations of human
rights.
Although the definition of ‘crime against humanity’ in the Rome Statute
is not limited to acts occurring in armed conflicts, these crimes are still
within the scope of international law. While, admittedly, many of the crimes
listed are also matters concerning human rights, under the limitations of
the Rome Statute, there is no danger that the ICC will become a general
court of human rights.

D. The Crime of Aggression

At present, the ICC cannot exercise jurisdiction over the crime of aggression.
Article 5(2) of the Rome Statute provides:
The Court shall exercise jurisdiction over the crime of aggression once a provision is
adopted in accordance with articles 121 and 123 defining the crime and setting out
the conditions under which the Court shall exercise jurisdiction with respect to this
crime. Such a provision shall be consistent with the relevant provisions of the Charter
of the United Nations.

The reason for the existence of this provision is that there was substantial
disagreement over the definition of this crime throughout the drafting
process. At the conclusion of the UN Diplomatic Conference in Rome, there
was still no general agreement. There will be no jurisdiction over the crime
of aggression until this problem has been resolved.
This leaves the problem of dealing with the crime of aggression to the
Security Council. In accordance with the UN Charter, the Security Council
has the principal responsibility for maintaining peace and stability in the
world. Whether one country has committed an act of aggression, and
whether this act will threaten the peace and stability of the world, should
be determined according to the UN Charter. The provisions of Article 5(2)
of the Rome Statute should ensure that the ICC will not indict individuals
for the crime of aggression without fulfilling the conditions of the UN
Charter, Article 39 of which stipulates that it is for the Security Council
to determine the existence of an act of aggression. Therefore, the inclusion
of the crime of aggression in the Rome Statute, far from weakening
the Security Council’s role in maintaining peace and stability, has in fact
underpinned it.

E. The Proprio Motu Power of the Prosecutor

Under Article 13(c) of the Rome Statute, one of the three situations in
which the Court may exercise its jurisdiction is where ‘[t]he Prosecutor
has initiated an investigation in respect of such a crime in accordance
618 JICJ 3 (2005), 608^620

with article 15’. Article 15(1) states that ‘The Prosecutor may initiate

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investigations proprio motu on the basis of information on crimes within the
jurisdiction of the Court’.
In the triggering system of the court, the provision on proprio motu
powers is the most disputed, creating one of the principal political and
legal hurdles in the application of the Rome Statute. Although there are
substantial areas of difference between the opponents and supporters of
this provision, all admit that the independence or otherwise of the Prosecutor
will significantly affect the organization and operation of the court.20
The term ‘proprio motu’ should be interpreted to mean that the Prosecutor
can act independently, in accordance with his or her own judgment. Since
the ICC deals with the gravest international crimes, the Prosecutor has sub-
stantial powers, even without this provision. Under the trigger mechanisms
in Article 13(a) and (b) of the Rome Statute, States Parties or the Security
Council can refer ‘situations’ to the Court. The Prosecutor must investigate
these situations and determine whether individuals should be charged
with relevant crimes. This confers enormous power on the Prosecutor: what
guarantees are there that s/he will not misuse it?
Under Article 13(c) of the Rome Statute, the Prosecutor must act in
accordance with Article 15. The aim of Article 15 is to prevent the abuse
of powers of a Prosecutor. During the drafting process, there was no agree-
ment as to the extent of the powers to be granted to the Prosecutor, until
a compromise resolution was proposed by Argentina and Germany in
March 1998, on which Article 15 was later based. The most critical limitation
stipulated in Article 15 is the requirement that the Prosecutor request and
be granted authorization from a pre-trial Chamber before a proprio motu
investigation can commence.21
This preliminary requirement substantially limits the powers of the
Prosecutor, and should allay the fears of those who believe that prosecutions
may be open to political influence.

5. Conclusion
In spite of all disputes, the ICC has been established and is now in operation.
Its existence cannot be ignored. Instead of opposing the ICC, China should

20 M. Bergsmo and J. Pejic¤, in Triffterer, supra note 10, at 360.

21 Under Art. 15(4): ‘If the Pre-Trial Chamber, upon examination of the request and the support-
ing 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 . . . .’
 China’s Attitude Towards the ICC 619

participate in it in order to protect its national interests, for the following

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reasons.22
First, the purpose of ICC is to punish international crimes which threaten
the interests of all humanity; this is in accordance with China’s stance.
Participating in the international judicial organ will enhance our status as
a country which is prepared to punish international crimes.
Secondly, China cannot escape the attentions of the ICC simply by
remaining a non-State Party. In accordance with the principle of complemen-
tarity, the Court will not interfere with the cases which are being properly
investigated and prosecuted by States Parties and, thus, it will not violate
judicial sovereignty.
Thirdly, the USA opposes the Rome Statute on account of its own interests.
China’s situation is totally different. It is not in a position to press measures
to eliminate the jurisdiction of the ICC over its own subjects, whether or not
it accedes to the Rome Statute.
Fourthly, States Parties to the Rome Statute enjoy rights which non-States
Parties do not. For example, only States Parties can be involved in discussions
on the definition of crime of aggression. Candidates for positions as judges
and prosecutors must be nationals of States Parties.
China, which plays an important role on the international stage, should
exert its powers in punishing international crimes and protecting the interests
of humanity. China should accede to the Rome Statute and make good use
of its rights as a State Party in order to fulfil the aim of ending impunity, and
thus also protect its national interests. Even if China does not accede in
the short term, it should learn about and study the provisions of the Rome
Statute so that it can react positively to protect its own interests.
The ICC has now been in operation for more than a year. So far, no
trials have yet commenced. It is difficult to judge at this stage whether the
Court will fulfil the aims outlined in the preamble to the Rome Statute.
In order to establish the authority of the ICC, the Chinese government is
of the view that the Court should strictly follow the principles on which it
was established. First, the most important role of the ICC is to promote
the improvement of domestic judicial systems, and to encourage countries
to exercise their own jurisdiction over perpetrators of grave crimes. Secondly,
the Court should only concern itself with the gravest international crimes.
Thirdly, the activities of the Court should not run counter to the provisions
of the UN Charter, especially on the question of crimes of aggression.
Fourthly, the Court should fulfil its duties objectively and impartially, and
avoid becoming a place for political misuse of its powers.
Although it is hard to forecast the effectiveness of the Court, if it can
obtain general support and cooperation, it will undoubtedly prove useful

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.
620 JICJ 3 (2005), 608^620

to the international community. This is what China wants to see. As to

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the question of acceding to the Statute, what we are suggesting is that
the Chinese government should adopt an open attitude and, taking into
consideration the actual performance of the Court, should not exclude
the possibility of acceding at an appropriate time. As Mr Liu Zhenmin
stated recently, the Chinese government, as an observer state, will continue
to adopt a serious and responsible attitude, and will follow carefully the
progress and operation of the ICC.23 China is willing to make a serious
contribution to the effectiveness of the rule of law in the international
community.

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).