China and International Criminal Justice

ICC Non-Membership

China is not a party to the Rome Statute of the International Criminal Court (1998) and does not recognise the jurisdiction of the International Criminal Court (ICC). China participated in the Rome Conference negotiations and made significant contributions to the Statute’s drafting but ultimately voted against its adoption. The principal objections raised by China include: (1) the Court’s jurisdiction over nationals of non-state parties; (2) the Prosecutor’s power to initiate investigations proprio motu (on their own authority); (3) the inclusion of the crime of aggression without prior Security Council determination; and (4) concerns about the Court’s potential for politicisation.

China continues to maintain an observer relationship with the ICC and has not ruled out future accession. Chinese scholars and officials have engaged with the ICC’s work through the ICC Assembly of States Parties as observers and through academic exchanges. China’s position reflects a broader caution about the expansion of international judicial jurisdiction that could affect Chinese nationals or national interests, consistent with its general approach to international law based on state sovereignty and non-interference.

Engagement with UN Tribunals

China has been more engaged with UN-established international criminal tribunals, reflecting its status as a permanent member of the UN Security Council. China supported the establishment of the International Criminal Tribunal for the Former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR), and the International Residual Mechanism for Criminal Tribunals (IRMCT) through Security Council resolutions. Chinese judges have served on the ICTY and IRMCT, including Justice Liu Daqun, who served as a judge on the ICTY and IRMCT for over two decades and rose to the position of Vice-President.

China also supported the establishment of the Special Tribunal for Lebanon and the Extraordinary Chambers in the Courts of Cambodia, though it has been more cautious about hybrid tribunals that involve domestic judicial systems. China’s approach is to support international criminal justice where it is established by Security Council consensus, but to resist efforts to expand the jurisdiction of international courts beyond what China considers consistent with state sovereignty.

International Court of Justice

China has accepted the jurisdiction of the International Court of Justice (ICJ) in specific cases but does not accept compulsory jurisdiction under the Optional Clause (Article 36(2) of the ICJ Statute). Chinese nationals have served as ICJ judges, including Judge Xue Hanqin (2010–present), who served as Vice-President of the ICJ (2018–2021). China has been a party to ICJ contentious cases, most notably the South China Sea arbitration, where it challenged the tribunal’s jurisdiction.

China has made declarations recognising the ICJ’s jurisdiction in specific treaty-based disputes and has participated in ICJ advisory proceedings, including submissions on the Legal Consequences of the Separation of the Chagos Archipelago and the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory. China generally supports the ICJ’s role in interstate dispute resolution but remains cautious about the expansion of its advisory jurisdiction into politically sensitive areas.

South China Sea Arbitration

The South China Sea Arbitration (Philippines v China, 2016) is the most significant international legal proceeding involving China in modern times. China adopted a position of non-acceptance and non-participation, refusing to recognise the jurisdiction of the Permanent Court of Arbitration tribunal established under Annex VII of the UN Convention on the Law of the Sea (UNCLOS). China argued that the dispute concerned maritime delimitation, which it had excluded from compulsory dispute settlement under its 2006 declaration under Article 298 of UNCLOS.

The Tribunal’s award in July 2016 rejected China’s historic rights claims in the South China Sea and found that certain Chinese activities, including construction on artificial islands and interference with Philippine fishing, violated UNCLOS. China declared the award null and void and has maintained its position of non-acceptance. The arbitration has had lasting implications for China’s engagement with international adjudication, reinforcing a preference for bilateral and regional dispute resolution mechanisms over compulsory judicial settlement.

Belt and Road Dispute Resolution

China’s Belt and Road Initiative (BRI) has prompted the development of alternative dispute resolution mechanisms as an alternative to Western-dominated international arbitration. The China International Commercial Court (CICC), established within the Supreme People’s Court in 2018, provides a specialised forum for resolving BRI disputes. The CICC applies Chinese procedural law but may apply foreign law and international practice as chosen by the parties.

China has also promoted the International Commercial Dispute Prevention and Settlement Mechanism, which integrates mediation, arbitration, and litigation. The Belt and Road Mediation Centre and adherence to the Singapore Convention on Mediation (2019) reflect China’s preference for mediated solutions. The Shanghai Cooperation Organisation and Asian Infrastructure Investment Bank have also established or supported dispute resolution frameworks that offer alternatives to the ICC and other Western-centred institutions.

Position on Universal Jurisdiction

China rejects the exercise of universal jurisdiction by national courts over international crimes, including genocide, crimes against humanity, and war crimes, where the prosecuting state has no territorial or nationality connection to the crime. China has consistently argued that universal jurisdiction is inconsistent with the principles of state sovereignty and non-interference in internal affairs, and that the exercise of universal jurisdiction by Western courts against Chinese or other non-Western nationals constitutes an illegitimate extension of domestic criminal law.

In UN debates, China has advocated for limiting universal jurisdiction to cases authorised by the Security Council or established under specific treaty regimes with clear jurisdictional rules. China’s position reflects concerns about the potential for universal jurisdiction to be used as a political tool against Chinese officials or nationals, particularly in relation to allegations concerning Xinjiang, Tibet, and other internal matters.