CHINA AND THE INTERNATIONAL CRIMINAL COURT: OBSTACLES TO ACCESSION AND PROPOSED SOLUTIONS

From a historical perspective, China largely contributed to the formulation and development of International Criminal Law and relevant laws, especially after the foundation of the People’s Republic of China. However, the implementation of international criminal laws in China was not completely satisfactory. China also participated in some of the activities of international criminal judicial institutions, such as the Tokyo Trial, the ICTY and the ICTR. China has actively participated in the whole process of the negotiation of the Rome Statute. However, when the Rome Statute was adopted in 1998 by an overwhelming number of votes, China voted against. The position of China towards the ICC is formed by complicated factors. These factors always mixed together and influenced each other. Accordingly, the obstacles for China’s accession to the Rome Statute of the ICC shall be multiple. However, this chapter deems that three aspects, i.e. sovereignty, legal system and China’s attitude towards international organizations are the most important obstacles for China’s accession to the Rome Statute of the ICC. Sovereignty is the common concern of all states in the international community. Due to complicated historical, economic and political reasons, China still holds a rather absolute concept of sovereignty. China’s objection to the ICC mainly derived from the concern of sovereignty. Legal differences are the objective obstacles for China’s accession to the Rome Statute of the ICC. Chinese legal system was based on the Confucian philosophy of social control through moral education, as well as the Legalist emphasis on codified law and criminal sanction. The establishment of the People's Republic of China in 1949 brought with it a more Soviet-influenced system of socialist law. Up to now, some aspects of Chinese criminal law system are still not consistent with the common standards in the international community. This could be another important obstacle for China’s accession to the Rome Statute of the ICC. Since the ICC is a treaty-based international organization, to explore the relationship between China and international organizations is a direct avenue to the topic concerned. China’s participation in international organizations experienced a process of attempt, rejection, limited participation and wide participation. In fact, China has been objectively connected with the ICC by the relevant provisions of the Rome Statute. Firstly, there are possibilities for the ICC to exercise jurisdiction over nationals of China. Secondly, the ICC heavily depends on cooperation of the whole international community, including China. The absence of China from the ICC does bring some impacts on both China and the ICC. Until now, neither China nor the States Parties of the ICC took effective measures to improve the relationship between them. To break the deadlock between China and the ICC, both sides need to move together. Some solutions are proposed to overcome the obstacles for China’s accession to the Rome Statute. In view of accession to the Rome Statute, China needs to change its concept of sovereignty, reform its criminal law system and enhance the study on the system of the ICC. The States Parties of the ICC needs to enhance the communication with non-party States and further ensure the independence and effectiveness of the ICC. The obstacles for China’s accession to the Rome Statute of the ICC are too complicated to be solved totally by these proposed solutions. However, these proposed solutions have tried to grasp the crucial obstacles for China’s accession to the ICC. There has been the consensus in the international community that an international judicial institution like the ICC is necessary. China needs time to fulfill the reforms step by step, and the States Parties of the ICC also needs time improve the ICC system gradually. The most important thing for both sides is to act since now.