1.1 Overview
On 1 July 2002, the Rome Statute 1 of the International Criminal Court (‘ICC’ or ‘the Court’) entered into force, ushering in a new era of accountability for international crimes .2 The ICC , the world’s first permanent international criminal court , promises to hold responsible those guilty of ‘the most serious crimes of concern to the international community as a whole’,3 specifically, genocide , crimes against humanity , war crimes , and the crime of aggression .4 The establishment of the ICC has been hailed as ‘the most innovative and exciting development in international law since the creation of the United Nations’.5 In the 1990s, China , who previously had played a constructive role in creating international tribunals to hold individuals accountable for massive crimes in former Yugoslavia and Rwanda , exhibited a great interest in the establishment of a permanent international criminal court , and its engagement in the whole process of building the ICC was remarkable. The Court’s central purpose—ending impunity for those who commit mass atrocities —clearly reflects China’s long-standing aspiration for international justice . However, at the end of the Rome Conference, China voted against the Rome Statute .6 As of 1 January 2018, the ICC has been in operation for more than a decade and has 123 member states.7 China, a permanent member of the United Nations Security Council (UNSC), remains outside of the Court, together with the US and Russia.8
Whereas the US openly objects to the ICC and Russia holds ambivalent view, China has consistently maintained a dialogue with the ICC and involved itself in the process leading to its continuous evolution. The reluctance of China to join the Court however has led to doubts over China’s international reputation as a responsible big nation claiming international justice and human rights . China’s engagement with international criminal justice dates back to the Tokyo Trials of Japanese war criminals in which it had assumed a leading role. China continued to support the ad hoc international criminal tribunals that operated under the auspices of the UN . Though being a non-member to the ICC , China still has to engage constantly with ICC-related issues as a permanent member of the UN Security Council . The ICC on the other hand critically needs sustained cooperation and support from states, especially China and other permanent members of the Security Council, in order to operate with efficacy and vitality. In fact, the ICC will be strongest when authorised by the Security Council, which retains the authority to compel state action under Chapter VII of the UN Charter . Therefore, fostering mutual understanding is in the very interest not only of China but also of the ICC and other states. In fact, the ICC has been in full operation for more than a decade, and there have been substantive developments both in law and in practice surrounding the Court. The question remains as to whether the relevant developments have been moving in the direction of providing sufficient level of comfort to the Chinese authorities . This book aims to understand the evolving relationship between China and the ICC . The primary scope of this work ranges from the substantive issues that have influenced the nature of that relationship to date to the factors related to China’s interactions with the ICC in years to come. In studying China’s engagement with the ICC , it is important to have a detailed survey of the following questions: Why is China still staying outside the ICC that is mandated to prosecute the worst crimes known to humanity? What are the legal objections asserted by the Chinese authorities? What are the policy motives likely to underline their oppositions? How do these Chinese concerns differ from those of other non-states parties (such as the US )? Is there any change in the Chinese policy towards the ICC in light of the subsequent developments on the part of the Court?
In fact, the ICC is part of a broader landscape of international courts and tribunals. The proliferation of international adjudicative bodies , such as the ICC , and the increased resort to international adjudication , which are distinctive features of the post-Cold War international legal order, have coincided with the rise of China. As its economic and political influence grows, China faces serious international disputes over a wide range of issues and has considerable stakes in international adjudication . Historically, China kept distance from participating in international judicial bodies; however, there has been a growing confidence of the Chinese authorities in engaging strategic international adjudications . Compared with other large powers, China has had a comparatively short time to engage regional and international organisations and has often done so using a very selective approach and demonstrating a great deal of wariness towards hierarchical organisations, especially those which were created by the West or were Western dominated.
On the other hand, as an important player on the international scene, China’s attitude towards international adjudication has important consequences for the continued development of international adjudicative bodies and the future international legal order. In fact, most legal regimes would be unable to function to their highest potential without participation from China given the country’s expanded global influence. Therefore, an in-depth study of China’s approach towards international adjudicative bodies is of great importance to both China and the world.
China’s relationship with the ICC is part of its broader dialogue with the global governance system, which includes all laws, rules, policies, and institutions that constitute and mediate relations between states in the international arena. As the biggest developing country and the second-largest economy in the world, China’s participation in global governance is imperative if the system is going to be truly representative and effective. From the late 1940s to the late 1970s, China stayed outside the mainstream international system dominated by Western powers, a system that almost completely denied the PRC its legitimacy and was in turn viewed as illegitimate by the Chinese. However, since the 1980s, China steadily increased its interactions with the global governance system, especially in the economic realm. China is now widely assumed to be a global power, and it is natural for it to demand a greater say in how global affairs are run to promote its interests. Given its rapidly rising power, China has updated its traditional pattern of staying low-key and mostly silent ...