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China, the Crime of Aggression, and the International Criminal Court

Published online by Cambridge University Press:  11 April 2014

Dan ZHU
Dan ZHU*
Affiliation:
University of Edinburgh, United Kingdomjudyzhuuk@gmail.com
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Abstract

At the Kampala Review Conference in 2010, the adoption of the amendments to the Rome Statute laid the groundwork for the eventual prosecution of the crime of aggression. China, a non-State Party to the International Criminal Court, has articulated its concerns regarding the Court's jurisdiction over the crime of aggression in legal terms. This paper examines the Chinese concerns regarding the role of the Security Council in the determination of an act of aggression and the definition of aggression primarily from a legal perspective. It argues that China has hovered back and forth between two conflicting legal positions on these issues during different periods in history according to its policy preference. This paper also considers the concerns of China from a policy perspective before concluding that the crime of aggression should not be regarded as an insurmountable barrier preventing China's accession to the ICC in years to come.

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Articles
Information
Asian Journal of International Law , Volume 5 , Issue 1 , January 2015 , pp. 94 - 122
Copyright
Copyright © Asian Journal of International Law 2014 

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Footnotes

*

PhD, School of Law, University of Edinburgh, LL.M. (Xiamen University), LL.B. (Jilin University). The author would like to thank Professor Bill Gilmore, Professor Alan Boyle, Professor Robert Cryer, Dr James Harrison, and the anonymous reviewers of the Asian Journal of International Law for their comments on earlier drafts of this paper.

References

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3. Rome Statute of the International Criminal Court, 17 July 1998, 2187 U.N.T.S. 90, 37 I.L.M. 999 (entered into force 1 July 2002), art. 5(2) [Rome Statute].

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(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 jurisdiction 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 in which they are committed be “at war”. Furthermore, many actions 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.

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It must be taken into account that not all acts of aggression entailed individual criminal responsibility, and any definition must clearly state what acts, under what circumstances, constituted crimes. Such a definition must also clearly refer to the Security Council's exclusive role under the Charter to determine that aggression had taken place, as a pre-condition to the exercise of the judicial authority of the Court.

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29. Ibid., option 1, variation 2.

30. Statement by Chinese delegate at the Sixth Session of the Preparatory Commission (2000), online: Permanent Mission of China to the UN Office at Geneva <http://www.china-un.ch/eng/gjhyfy/hflygz/t85684.htm>.

31. Ibid.

32. Proposal submitted by Bosnia and Herzegovina, New Zealand, and Romania, UN Doc. PCNICC/2001/WGCA/DP.2/Add.1, 27 August 2001, at 2.

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38. Ibid.

39. Report of the Special Working Group on the Crime of Aggression, ICC-ASP/7/SWGCA/2(2009).

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47. For a thorough study, see STEIN, Mark S., “The Security Council, The International Criminal Court, and the Crime of Aggression: How Exclusive is the Security Council's Power to Determine Aggression?” (2005) 16 Indiana International & Comparative Law Review 1CrossRefGoogle Scholar at 5; BLOKKER, Niels M., “The Crime of Aggression and the United Nations Security Council” (2007) 20 Leiden Journal of International Law 867−894CrossRefGoogle Scholar.

48. Charter of the United Nations, 1 U.N.T.S. XVI, 24 October 1945, art. 39: “The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression … .”

49. Ibid., art. 24(1).

50. Ibid., art. 12(1).

51. GOODRICH, Leland M. and HAMBRO, Edvard, Charter of the United Nations: Commentary and Documents, 2nd ed. (London: Stevens & Sons Limited, 1949)Google Scholar at 204.

52. Uniting for Peace, GA Res. 377A (V), UN GAOR, 1950, UN Doc. A/RES/5/377, at 10, para. 1.

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56. For a detailed elaboration of the cases in which the “Uniting for Peace Resolution” was invoked, see REICHER, Harry, “The Uniting for Peace Resolution on the Thirtieth Anniversary of Its Passage” (1981) 20 Columbia Journal of Transnational Law 1Google Scholar.

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61. China voted in favour of GA Res.36/172A (1981), UN Doc. A/RES/36/172A; Res.36/27 (1981), UN Doc. A/RES/36/27; Res.36/226A (1981), UN Doc. A/RES/36/226A; Res. 37/18 (1982), UN Doc. A/RES/37/18; Res.37/3 (1982), UN Doc A/RES/37/3, and Res.ES-9/1 (1982).

62. Certain Expenses of the United Nations, Advisory Opinion, [1962] I.C.J. Rep. 151 at 163. The Court also stated that “it is only the Security Council which can require enforcement by coercive action against an aggressor”. Therefore, according to the ICJ, what is exclusive to the Security Council is its power to impose binding enforcement measures under Chapter VII of the Charter.

63. Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States of America), Judgment of 26 November 1984, [1984] I.C.J. Rep. 392 at 434−5.

64. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, [2004] I.C.J. Rep. 136 at 148.

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76. See also Statement by AN Chih-Yuan (China), 6th Comm., 1475th mtg., UN GAOR, 29th Sess., UN Doc. A/C.6/1475, 14 October 1974, para.16.

77. Statement by Ling Ch'ing, supra note 75, para.77:

Distinguishing between the aggressor and the victim of aggression meant distinguishing, at the international level, between right and wrong. His delegation considered that when questions of that kind were discussed in the United Nations an analysis should be made on the basis of the objective facts by all the Member States, big or small, so as to arrive at a correct and truthful conclusion.

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80. Art. 2(4) of the UN Charter generally prohibits any nation from using force against another with two exceptions: when force is required in self-defence (art. 51) or when the Security Council authorizes the use of force to protect international peace and security (Chapter VII). See SHAW, Malcolm, International Law, 6th ed. (Cambridge: Cambridge University Press, 2008) at 1123−1124CrossRefGoogle Scholar.

81. There has been ambiguity regarding art. 51 in relation to the use of force by states in self-defence before an armed attack has taken place, even though no consensus as to the use of terminology in this field has been reached. Examining post-Charter uses of pre-emptive force also illustrates that this is a decidedly grey area of the law. See GRAY, Christine, International Law and the Use of Force, 3rd ed. (Oxford: Oxford University Press, 2008)Google Scholar at 114; see also GREENWOOD, Christopher, “International Law and the Pre-emptive Use of Force: Afghanistan, Al-Qaida, and Iraq” (2003) 4 San Diego International Law Journal 7Google Scholar at 9.

82. In recent years, humanitarian intervention has also stretched the boundaries of the lawful use of force, as NATO's use of force in Kosovo brought forth the question of humanitarian intervention as a justification for the use of force. However, the legal status of humanitarian intervention remains unsettled under international law. See SIMMA, Bruno, “NATO, the UN and the Use of Force: Legal Aspects” (1999) 10 European Journal of International Law 1CrossRefGoogle Scholar at 4; see also GOODMAN, Ryan, “Humanitarian Intervention and Pretexts for War” (2006) 100 American Journal of International Law 107CrossRefGoogle Scholar.

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88. Ibid, at 138−9.

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90. BARRIGA, Stefan, “Against the Odds: The Results of the Special Working Group on the Crime of Aggression” in Roberto BELLELLI, ed., International Criminal Justice: Law and Practice from the Rome Statute to Its Review (Farnham: Ashgate, 2010)Google Scholar, 621 at 630.

91. Supra note 84, annex.

92. Ibid., art. 1.

93. Ibid., art. 3.

94. Ibid., art. 2.

95. Ibid., art. 4.

96. Discussion Paper proposed by the Chairman, ICC-ASP/5/SWGCA/2(2007), art. 2: “For the purpose of paragraph 2, act of aggression means an act referred to in [art. 1 and art. 3 of] United Nations General Assembly resolution 3314 (XXIX) of 14 December 1974” [Discussion Paper].

97. 2007 SWGCA Report, supra note 89, para. 20.

98. Ibid., para. 21.

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100. Ibid.

101. Ibid.

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103. 2007 SWGCA Report, supra note 89, para. 16.

104. Ibid., para. 17.

105. KREß, Claus and von HOLTZENDORFF, Leonie, “The Kampala Compromise on the Crime of Aggression” (2010) 8 Journal of International Criminal Justice (2010) 1179 at 1193CrossRefGoogle Scholar.

106. 2007 Discussion Paper, supra note 96, art. 1.

107. Ibid.

108. 2007 SWGCA Report, supra note 89, para. 18.

109. Ibid., para. 16.

110. Statement by Qi Dahai, supra note 33, para. 56

111. Amendments to the Rome Statute, supra note 44, art. 8bis.

112. Remarks by Harold H. KOH, “The US and the International Criminal Court: Report From the Kampala Review Conference” (2010), online: American Society of International Law <http://www.asil.org/files/Transcript_ICC_Koh_Rapp_Bellinger.pdf > at 11, para. 5. According to Koh: “It was a mistake not to go to the Princeton process; it was a mistake not to make the changes that we knew we wanted to make or suggest them earlier; and we had to deal with that.”

113. Statement by Harold H. KOH , “Statement at the Review Conference of the International Criminal Court” (4 June 2010), online: US Department of State <http://www.state.gov/s/l/releases/remarks/142665.htm>: “Although we respect the considerable effort that has gone into the Princeton Process, we believe that without agreed-upon understandings, the current draft definition remains flawed.”

114. TRAHAN, Jennifer, “The Rome Statute's Amendment on the Crime of Aggression: Negotiations at the Kampala Review Conference” (2011) 11 International Criminal Law Review 49CrossRefGoogle Scholar at 73.

115. Supra note 84.

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117. Understanding Regarding the Amendments to the Rome Statute of the International Criminal Court on the Crime of Aggression, in Resolution RC/Res. 6, 11 June 2010, annex III.

118. KIM, Samuel S., “The People's Republic of China and the Charter-Based International Legal Order” (1978) 72 American Journal of International Law 317CrossRefGoogle Scholar at 342.

119. Statement by HO Li-liang (China), 6th Comm. 1503rd mtg., UN GAOR, 29th Sess., UN Doc. A/C.6/29/SR.1503, 21 November 1974, para. 11.

120. Supra note 84, annex, art. 2.

121. Ibid, art. 4.

122. Statement by An Chih-Yuan, supra note 76, para. 16.

123. Ibid.

124. KIM, Samuel S., China, the United Nations, and World Order (Princeton: Princeton University Press, 1979)Google Scholar at 460.

125. Statement by Ch'ing, Ling, supra note 75Google Scholar, para. 77.

126. Statement by Dahai, Qi, supra note 33Google Scholar, para. 56.

127. Statement by An Chih-Yuan, supra note 76, para. 15.

128. Statement by Ch'ing, Ling, supra note 75Google Scholar, para. 75:

With regard to the question of aggression or the victim of aggression, his delegation maintained that any country which first used armed force to encroach upon the sovereignty, independence or territorial integrity of other countries had naturally committed a crime of aggression, that a crime of aggression should be subjected to severe international condemnation and sanctions and that peoples had the right to wage wars of national liberation and revolutionary wars of self-defence. It was absolutely impermissible to mention in the same breath wars of aggression and wars against aggression, which were different in nature.

129. Supra note 55. The General Assembly found that “China, by giving direct aid and assistance to those who were already committing aggression in Korea … has itself engaged in aggression in Korea”.

130. Statement by WU Hsiu-Chuan (China), UN SCOR, 527th mtg., UN Doc. S/PV. 527 (1950), 28 November 1950, at 21−2: “Under such circumstances the United States armed aggression against Korea cannot be regarded as a matter which concerns the Korean people alone … The United States aggression against Korea gravely endangers the security of the People's Republic of China.”

131. Ibid., at 4, 25.

The members of the Security Council will recall that on 24 August Foreign Minister Chou En-lai lodged a charge with the United Nations Security Council that the United States Government had committed armed aggression against China's territory, Taiwan; “In order to safeguard international peace and security and to uphold the sanctity of the United Nations Charter, the United Nations Security Council has the inalienable duty to apply sanctions against the United States Government for its criminal acts of armed aggression upon the territory of China, Taiwan, and its armed intervention in Korea.”

132. Draft Resolution Submitted by the Representative of the General People's Government of the People's Republic of China at the 527th Meeting of the Security Council held on 28 November 1950.

133. For example, 1962 China's boundary conflict with India; 1969 China's involvement in the Vietnam War against US aggression; 1969 Sino-Soviet border clashes; and 1979, China's “defensive counter-attack” against Vietnam; see MUSHKAT, Roda, “Is War Ever Justifiable? A Comparative Survey” (1987) 9 Loyola of Los Angeles International and Comparative Law Journal 227 at 289−290Google Scholar.

134. COHEN, Jerome A., “China and Intervention: Theory and Practice” (1973) 121 University of Pennsylvania Law Review 471CrossRefGoogle Scholar at 476.

135. Supra note 84, annex, art. 3(d).

136. Statement by An Chih-Yuan, supra note 76, para. 15.

137. Ibid.

138. Ibid.

139. Official Records of the Third UN Conference on the Law of the Sea, Vol. 17, Plenary mtg., UN Doc. A/CONF.62/WS/37 and Add. 1 and 2, at 243. While maritime powers maintained that the EEZ should have the traditional freedom of the high seas, coastal states argued for more rights and control over the zone. China failed to achieve its objective to broaden coastal state rights and include security interests as a costal state competency in the EEZ.

140. ROTHWELL, Donald R. and STEPHENS, Tim, The International Law of the Sea (Oxford: Hart Publishing, 2010)CrossRefGoogle Scholar at 284.

141. Statement by Ch'ing, Ling, supra note 75Google Scholar, para. 76: “While intent was a subjective element, it was nevertheless manifested through concrete acts of aggression.”

142. Ibid. According to Ling Ch'ing:

Consequently, the objective acts must be taken as the basis for judging whether a certain action constituted aggression, including whether the State committing it had aggressive intent, and definitely not the other way round, i.e. the existence of an act of aggression could not be determined on the basis of whether it was committed with aggressive intent. History proved that no aggressors would ever admit that they had aggressive intent … If aggressive intent was to be made a criterion for judging aggression, that would inevitably play into the hands of the aggressor, who tried to justify their aggressive acts and to mislead the public by disclaiming any aggressive intent. Such a definition of aggression would obviously be incapable of protecting the interests of the victims of aggression.

143. The US, which holds different views from China on the issues of humanitarian intervention and self-defence, played a significant role in preserving these grey areas issues. According to a former US Legal Adviser:

If Article 8bis were to be adopted as a definition, understandings would need to make clear that those who undertake efforts to prevent war crimes, crimes against humanity or genocide—the very crimes that the Rome Statute is designed to deter—do not commit “manifest” violations of the U.N. Charter within the meaning of Article 8bis. Regardless of how states may view the legality of such efforts, those who plan them are not committing the “crime of aggression” and should not run the risk of prosecution. At the same time, in order for an investigation or prosecution to proceed, it must be shown that it was manifest that the action was not undertaken in self-defence, without the consent of the state in question, and without any authorization provided by the Security Council.

See US Department of State, “Statement at the Review Conference of the International Criminal Court” (4 June 2010), online: DoS <http://www.state.gov/s/l/releases/remarks/142665.htm>.

144. Sharon A. WILLIAMS and William A. SCHABAS, “Article 12” in Triffterer, supra note 35, 547 at 548.

145. KIRSCH, Philippe and HOLMES, John T., “The Rome Conference on an International Criminal Court: The Negotiating Process” (1999) 93 American Journal of International Law 2CrossRefGoogle Scholar at 3.

146. Under an “opt-in” system, ratification only signifies that a state becomes a party to the Statute, a separate declaration is required for a state to accept the ICC's jurisdiction over all crimes or only over certain crimes.

147. Statement by CHEN Shiqiu (China), Sixth Comm, 25th mtg, UN GAOR, 50th Sess, UN Doc A/C.6/50/SR.25, 30 October 1995, para. 70: “Acceptance of the court's jurisdiction would be based on the voluntary consent of the states parties and could not be mandatory”; see also Statement by LI Yanduan (China), Rome Conference Official Records, supra note 2, UN Doc A/CONF.183/C.1/SR.8, 19 June 1998, para. 37:

The opt-in system would allow many countries to become parties to the Statute and allow the Court to acquire universality in a very short period of time. After that, the countries concerned could gradually accept the jurisdiction of the Court. The fact that the Court enjoyed universal support would serve as a strong deterrent with regard to the core crimes. She therefore favoured the opt-in system.

148. SCHEFFER, David, “Letter to the Editors” (2001) 95 American Journal of International Law 624−625Google Scholar; LEIGN, Monroe, “The United States and the Statute of Rome” (2001) 95 American Journal of International Law 124Google Scholar at 126.

149. Amendments to the Rome Statute, supra note 44, art. 15bis(4).

150. “Opt-out” means a state, by becoming party to the Court's Statute, would automatically confer jurisdiction to the Court over the crimes under the Statute, but the state would have the right to exclude some crimes from such jurisdiction.

151. Amendments to the Rome Statute, supra note 44, art. 15bis(5).

152. Statement by Qu Wensheng, supra note 5, para. 34:

Under article 121, paragraph 5, any amendment to articles 5 to 8 of the Statute would not have effect with respect to States parties that had not accepted the amendment … a non-party would not be able to invoke the same grounds to refuse the Court's jurisdiction over the crime in question.

153. Report of the Special Working Group on the Crime of Aggression, Doc. ICC-ASP/7/SWGCA/2 (2009), paras. 31−7.

154. Statement by Liu Daqun (China), Rome Conference Official Records, supra note 2, UN Doc. A/CONF.183/SR.9, 17 July 1998, para. 39:

The Prosecutor's right to conduct investigations or to prosecute proprio motu, without sufficient checks and balances against frivolous prosecution, was tantamount to the right to judge and rule on State conduct. The provision that the Pre-Trial Chamber must consent to the investigation by the Prosecutor was not an adequate restraining mechanism.

155. Amendments to the Rome Statute, supra note 44, art. 15bis(8).

156. SCHABAS, William A., An Introduction to the International Criminal Court, 4th ed. (Cambridge: Cambridge University Press, 2011)CrossRefGoogle Scholar at 153.

157. It was argued that:

States should settle their disputes through negotiation and consultation … states were free to choose other means to settle their disputes. If a sovereign State were asked to accept unconditionally the compulsory jurisdiction of an international judicial organ, that would amount to placing that organ above the sovereign State, which was contrary to the principle of State sovereignty.

See Statement by LAI Ya-Li (China), The Third United Nations Conference on the Law of the Sea, Official Records, Vol. V (1976) at 27.

158. Declarations Made after Ratification, China (25 August 2006), online: UNCLOS <http://www.un.org/Depts/los/convention_agreements/convention_declarations.htm#China Upon ratification>.

159. ANDERSON, Kenneth, “The Rise of International Criminal Law, Intended and Unintended Consequence” (2009) 20 European Journal of International Law 331CrossRefGoogle Scholar at 355.

160. Hans-Peter KAUL, “Is it Possible to Prevent or Punish Future Aggressive War-Making?”, Forum for International Criminal and Humanitarian Law, Occasional Paper, 8 February 2011, at 10.

161. Schabas, , supra note 156 at 27Google Scholar.

162. Marja LEHTO, “The ICC and the Security Council: About the Argument of Politicization” in Politi and Nesi, supra note 9, 145 at 146.

163. According to David Kay:

There are three closely related behaviour patterns of politicization: first, considering and acting on matters that lie essentially outside the specific functional domain of a given specialized agency or program; secondly, the reaching of decisions on matters within an agency's or program's functional competence through a process that is essentially political and does not reflect technical and scientific factors in the decision process; and thirdly, the taking of specific actions on issues within an agency's or program's competence for the sole purpose of expressing a partisan political position rather than attempting to reach an objective determination of the issues.

See KAY, David, “The Function and Effectiveness of Selected United Nations System Programs” (1980) 18 American Society of International Law Studies in Transnational Legal Policy at 7Google Scholar.

164. Blokker, and Kreß, , supra note 41 at 895Google Scholar.

165. CRYER, Robert, “Darfur: Complementarity as the Drafters Intended?” in Carsten STAHN and Mohamed M. El ZEIDY, eds., The International Criminal Court and Complementarity: From Theory to Practice (Cambridge: Cambridge University Press, 2011)Google Scholar, 1097 at 1098.