POLICY BRIEF SERIES China’s Policy Towards the ICC Seen Through the Lens of the UN Security Council By XUE Ru FICHL Policy Brief Series No. 27 (2014) China is not a State Party to the Statute of the International 1.2. ICTR Criminal Court (‘ICC’), but is one of the five permanent UNSC Resolution 955 (1994) adopted under Chapter VII members of the United Nations Security Council established the ICTR by 13 votes in favour, one against (‘UNSC’). This policy brief examines the positions, atti- (Rwanda), and one abstaining (China).5 The Chinese del- tudes and views of China towards the ICC, drawing pri- egation abstained because it was not in favour of “invok- marily on China’s conduct in the UNSC. It will analyse ing at will Chapter VII of the Charter to establish an inter- China’s substantive concerns towards the ICC, and some national tribunal through the adoption of a Security key factors contributing to the uncertain future of the rela- Council resolution”; it also believed that without Rwan- tionship between China and the ICC. da’s support and co-operation it would be “difficult for the Tribunal to perform its duties in an effective manner”.6 In 1. Chinese Position on the Establishment of the ICTY, principle, China did not oppose the setting up of the ICTR ICTR and ICC1 and in all subsequent UNSC votes, she voted in favour of 1.1. ICTY it. The ICTY was established pursuant to UNSC Resolution 1.3. ICC 827 on 25 May 1993, on the basis of a report prepared by the UN Secretary General with input from many States and During the 1998 Rome Diplomatic Conference, China non-governmental organizations (‘NGOs’).2 China voted provided clear and specific suggestions and comments on in favour of this resolution, but she made clear her reserva- various legal issues pertaining to the nature and functions tion as regards the legal approach taken. Apart from em- of the ICC, such as the jurisdiction of the Court, definition phasizing the special circumstances of the former Yugosla- of the crimes, criminal responsibility of legal persons, via, the Chinese delegate expressed concern about the criminal responsibility of superiors, powers of the prose- possible abuse by the UNSC of its powers under Chapter cutor, criteria for admissibility, selection of the judges, and VII of the UN Charter in establishing an international tri- the process of voting on the text of the draft ICC Statute.7 bunal. The representative also made it clear that China pre- Some of its suggestions were subsequently incorporated ferred that such a tribunal should be established by a new into the Statute. Regrettably, at the end of the Conference, multilateral treaty. That approach would respect the prin- China voted against adopting the Statute because her fun- ciple of State judicial sovereignty to the extent possible, damental concerns had not been satisfactorily addressed. and many difficulties both in theory and practice could be After the Conference, the head of the Chinese delega- avoided.3 Although China voted for the establishment of tion explained the reasons for voting against the Statute in the ICTY with reservations, she has since supported its op- a newspaper interview.8 He pointed out that the text im- eration in practice. There has always been a Chinese judge 4 at the ICTY. LIU Daqun has been Judge since 2000. 5 UN Doc. S/RES/955 (1994) (http://www.legal-tools.org/ 1 ‘ICTY’ and ‘ICTR’ stands for the ad hoc international criminal doc/97d395/). tribunals for the former Yugoslavia and Rwanda. 6 UN Doc. S/PV.3453. 2 UN Doc. S/RES/827 (1993) (http://www.legal-tools.org/doc/ 7 For a comprehensive analysis of the position of China during the dc079b/). Rome Diplomatic Conference, see JIA Bingbing, ‘China and the 3 UN Doc. S/PV.3217. International Criminal Court: The Current Situation’, in Singapore 4 Mr. LI Haopei was the first Chinese Judge at the ICTY (1993– Year Book of International Law, 2006, Vol. 10, p. 87. 1997); Mr. WANG Tieya succeeded him (1997–2000); and Mr. 8 ‘WANG Guangya on the Statute of the International Criminal www.toaep.org posed obligations on non-States Parties without their con- inter alia, to refer the situation of Libya to the ICC.14 It sent and, as a result, violated the principle of State sover- was the first time that a situation was unanimously referred eignty and the Vienna Convention on the Law of Treaties; to the ICC by all members of the Council. The Chinese war crimes and crimes against humanity defined by the delegation voted in favour of the resolution because of text went beyond generally accepted customary interna- “the special situation in Libya at this time and the concerns tional law; the proprio motu power of the ICC Prosecutor and views of the Arab and African Countries”.15 to initiate investigations could lead to political abuse of the Court; and China would rather see the UNSC acting in 2.3. Syria situations of aggression without any constraints.9 In sum, On 22 May 2014, 64 States submitted a proposed resolu- China took a negative view of some provisions of the ICC tion to the UNSC to refer the situation of Syria to the Statute. ICC.16 The draft resolution was not adopted due to the op- position of two permanent members of the UNSC, namely 2. Chinese Position on Security Council Referral and China and Russia. The representative of China provided Deferral three reasons for the position taken. First, China believed By mid-July 2014, the Darfur, Libya, Syria and Kenya that any action to seek recourse to the ICC to prosecute the situations had been discussed by the UNSC with a view to perpetrators of serious violations of the international crim- ICC referral or deferral. Let us consider China’s position inal law should be conducted on the basis of respect for on each of these situations. State judicial sovereignty and the principle of complemen- tarity. Second, in China’s view, an ICC referral would not 2.1. Darfur be conducive to the political settlement of the dispute, and In 2005, by UNSC Resolution 1593 the situation in Darfur would only serve to jeopardize the fragile peace efforts. was referred to the ICC.10 Eleven States voted in favour Third, instead of rushing through a vote on the proposed and there were four abstentions, including one by China. resolution, China saw the need for a longer process of con- In the explanation of vote, the Chinese delegate restated sultation among the UNSC members as the best way to China’s position on the ICC. China believed that there overcome obstruction to consensus on the way forward. At were more effective and feasible approaches than referring the same time, China expressed deep concern at the wors- the Darfur situation to the ICC. China expressed major res- ening humanitarian situation in Syria and had provided ervations about the exercise of ICC jurisdiction against the humanitarian assistance through various channels on sev- will of non-States Parties.11 Moreover, China had concerns eral occasions.17 about the arrest warrant against Sudanese President Omar 2.4. Kenya al-Bashir and supported the proposal in the UNSC to defer the ICC proceedings against him, although it was not ad- On 15 November 2013, 14 African States submitted a pro- opted.12 President al-Bashir – a person suspected by the posed resolution to the UNSC requesting the ICC to defer ICC for crimes against humanity, genocide and war crimes the investigation and prosecution of Kenyan President Ke- – visited China in his capacity as Head of State in June nyatta and Deputy President Ruto for a period of 12 months 2011 at the invitation of the Chinese President.13 in line with Article 16 of the ICC Statute.18 Mr. LIU Jieyi, the representative of China and President of the UNSC that 2.2. Libya month, presided over the meeting and put the draft resolu- On 26 February 2011, the UNSC adopted Resolution 1970, tion to a vote. It received seven votes in favour and eight abstentions, hence failing to obtain the requisite majority. Court’, Legal Daily, 29 July 1998, p. 4 (http://www.legal-tools. org/doc/bb0b03/); ‘The State Sovereignty should be stressed in the The Chinese delegation voted in favour and Mr. LIU ex- establishment of the International Criminal Court’, People’s Daily, pressed regret at the failure to adopt the resolution. He 18 June 1998, p. 6 (http://www.legal-tools.org/doc/39b90e/). stated that the Kenyan leaders play an important role in 9 For more details, see also JIA Bingbing, 2006, p. 91, see supra note maintaining peace and stability in Kenya and in Africa in 6; LU Jiangping and WANG Zhixiang, ‘China’s Attitude Towards the ICC’, in Journal of International Criminal Justice, 2005, Vol. general, and that the principles of complementarity and ju- 3, p. 611. dicial sovereignty should, moreover, be respected by inter- 10 UN Doc. S/RES/1593 (2005) (http://www.legal-tools.org/doc/ national judicial institutions.19 The Chinese Prime Minister da64ab/). visited Kenya and held talks with President Kenyatta on 10 11 UN Doc. S/PV. 5158. 12 Foreign Ministry Spokesperson QIN Gang held a regular press conference and answered questions about the arrest warrant 14 UN Doc. S/RES/1970 (2011) (http://www.legal-tools.org/ against President al-Bashir issued by the ICC, see ‘China regretful, doc/00a45e/). worried about Sudan president arrest warrant’, 5 March 2009, Xin- 15 UN Doc. S/PV.6491. hua Net (http://www.legal-tools.org/doc/1ba9e6/ and http://www.