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VI. China and the International Criminal Court
2004/04/19

In July 1998, the Diplomatic Conference of Plenipotentiaries (hereinafter as the Rome Conference) on the establishment of the International Criminal Court, being held in Rome, Italy, adopted by way of voting The Rome Statute on the International Criminal Court (hereinafter as the Statute). The Statute would come into force 60 days after the deposit of the 60th instrument of ratification. Up to December 31, 2000 (the final day of its opening to signatures), 139 states signed the Statute. 27 states including France, Germany and Canada ratified it.

To ensure the smooth operation of the court after its inception, the Rome Conference decided to set up the Preparatory Committee (hereinafter as "PrepCom") for the International Criminal Court, to complete the necessary preparations before the formal establishment of the court. The PrepCom consisted of all the states that had signed the Final Act of the Rome Conference and states that had been invited by the conference. Its primary task was to draft the supplementary documents such as The Elements of Crimes, Rules of Procedure and Evidence, the agreement on the relations between the court and the UN, financial ordinance and its detailed rules and regulations. Besides, the PrepCom would also draft a text on the definition of the crime of aggression and the conditions for the court to exercise jurisdiction over it, which would be submitted to the conference of the contracting states for its examination.

Up to the present, the PrepCom has held 6 sessions. In accordance with the relevant resolution of the UN General Assembly, it held 3 sessions in 2000 at the UN Headquarters in New York to draft The Elements of Crimes, The Rules of Procedure and Evidence and other relevant documents. As one of the signatories to the Final Act of the Rome Conference, China actively participated in the work of the PrepCom in various aspects with a serious, practical and constructive attitude.

During its 5th session held in June this year, the PrepCom completed the drafting of The Elements of Crimes and The Rules of Procedure and Evidence within the deadline set by the Final Act of the Rome Conference. The two documents would be applicable laws for the court. Their drafting commanded great attention of the states. After 5 heated consultations of the PrepCom and in-depth discussions in several informal meetings between sessions, the states eventually reached consensus on the contents of the two documents. During the 55th General Assembly's discussion of the item on the International Criminal Court, the states welcomed the adoption of the two documents and gave positive comments on the work of the PrepCom.

The Elements of Crimes stipulates the component elements for the crime of genocide, the war crime and the crime against humanity under the jurisdiction of the court and would become an applicable law for the ICC. During the discussion, the crime against humanity caused serious argument. Because some states feverishly advocated lowering the threshold of the crime against humanity, the states carried out arduous consultations. The most outstanding difference concerned the "Preamble" of the elements for the crime against humanity. As the "Preamble" is the guiding principle for the interpretation and application of the elements of crimes, its contents would produce decisive influence over the elements of specific crimes, over which a compromise had been reached. Therefore, the states were cautious in discussing this part of the contents, unwilling to make any compromise over key questions. The negotiation once reached an impasse. It was not until the last day before the conclusion of the session that the working group reached consensus on the content of the "Preamble". Before the adoption of the draft text, the Chinese Delegation made known its reservations over the "Preamble" of the document, the crime of enslavery, the crime of forced sterilization and the crime of coercive disappearance.

The Rules of Procedure and Evidence (hereinafter as the "RPE") stipulates the operational procedure of the various component parts of the court, is the concretion of the contents of the relevant procedure of the Statute. After in-depth discussions by the states, a draft text containing 225 rules and regulations was hammered out. Its contents incorporated the features of different legal systems and a balance was maintained between the rights and obligations of the parties concerned. The stand and views of the Chinese Delegation were mostly absorbed into the draft text. This was helpful in keeping the balance of judicial powers and functions between the court and the sovereign states and played an important and constructive role in ensuring that the formulation of the RPE would not deviate from the right track. It is noteworthy that the RPE leaves for the various institutions of the court certain right of discretion. In its intervention at the General Assembly, China stressed that in future in the course of applying and interpreting the RPE, they should strictly follow the basic principle of subordinating the RPE to the Statute.

With the completion of the drafting of the two major documents, the issue of the crime of aggression drew more and more attention and became one of the focal points of the 6th session of the PrepCom. The states engaged in unprecedented heated debates on this issue but no substantive progress was made.

The discussion on the crime of aggression centered primarily on its definition and the conditions for the court to exercise jurisdiction over it.

The core issue of the definition was whether the individual behavior that constituted the crime of aggression should be the launching or executing the war of aggression, the act of aggression or all the acts of illegal use of armed force. Based on these points, the relevant states accordingly tabled draft resolutions.

With regard to the conditions for the court to exercise jurisdiction, from the PrepCom to the Preparatory Commission, this issue all along remains as the major difference between the five Permanent Members of the Security Council and the other states. The five Permanent Members all along insist that the determination of the Security Council is the prerequisite for the court to exercise jurisdiction over the crime of aggression and that this content should become an indispensible part of the definition of the crime of aggression. At the 6th session, the positions of some states were rather close to that of the five Permanent Members whereas the other states opposed it to different degrees. China stressed in its intervention that since the precondition for an individual to bear the criminal responsibility is that the state commits an act of aggression, in the absence of a determination by the Security Council on the situation of aggression, the court lacks the basis to prosecute the individual for his criminal liability. Besides, allowing the court to exercise jurisdiction before the Security Council makes the determination was practically bestowing on the court the right of determination on the state act of aggression. This runs counter to the provisions of the Charter. As for the proposal of making the determination by the General Assembly or the International Court, there is no relevant foundation in the Charter. Though the General Assembly could discuss affairs related to international peace and security, on the question of the determination of aggression, the exclusive power the Charter confers on the Security Council is explicit.

In order to solve its concern over the immunity from the jurisdiction of the court of its troops stationed overseas, when the RPE was being discussed in the 5th session, the US tabled a draft text on the rule of Paraphrase 2, Article 98 of the Statute, providing that as it may be inhibited by a certain international agreement, the court could not require a contracting state to hand over the defendant to it. As this draft resolution was practically an amendment of the Statute, it was opposed by the majority of states. After several consultations, the two sides reached a compromise. The US draft resolution was partially incorporated in the RPE, but the content of Paraphrase 2, Article 98 of the Statute was emphasized and a relevant agreement of understanding on this rule was reached, making clear that this rule should not be interpreted as requiring the court, international organizations and states to conclude an agreement in future on the question of handing over.

From the start of its 6th session, the PrepCom set about drafting the financial ordinance and its detailed rules and regulations of the court, the agreement on the relations between the court and the United Nations and the agreement on the privileges and immunity of the court. The foregoing documents were based on the draft resolutions worked out by the UN Secretariat at the request of the PrepCom. At present the first reading of some of the articles and clauses of these documents has all been completed. As most of the contents of these documents were standard articles and clauses with rich international experience in practice, they did not caused much argument. In accordance with the resolution adopted by the 55th General Assembly, the PrepCom would hold two sessions in 2001 to continue the drafting of the above-mentioned documents.

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