China and International Criminal Law

Introduction

The People’s Republic of China maintains a distinctive and carefully calibrated relationship with international criminal law. As a permanent member of the UN Security Council, a victor power in World War II, and a state with deeply held commitments to sovereignty and non-interference, China has engaged selectively with the international criminal justice system. It was instrumental in the Tokyo Tribunal, participates as an observer in the ICC Assembly of States Parties, and has incorporated international crimes into its domestic criminal code, yet it remains firmly outside the Rome Statute framework.

The Tokyo Tribunal and Chinese Judicial Participation

China was a founding participant in the International Military Tribunal for the Far East (IMTFE). Chinese jurist Mei Ju-ao served as one of the eleven judges, and Chinese prosecutors presented evidence of Japanese atrocities including the Nanking Massacre and the use of biological weapons by Unit 731. Judge Mei’s dissenting opinion, in which he argued for the conviction of all defendants and opposed the Emperor’s immunity, remains a significant document in international criminal jurisprudence.

The Tokyo Tribunal experience shaped China’s legal engagement with international criminal law in enduring ways. It established the principle that Japanese war crimes were subject to adjudication by an international tribunal with Chinese participation, a precedent that continues to inform Chinese legal discourse on wartime accountability. China also conducted domestic war crimes trials in Nanjing, Shanghai, and other cities, prosecuting Japanese personnel for crimes committed during the occupation.

Non-Party Status to the Rome Statute

China has not signed or acceded to the Rome Statute and remains one of the most significant states outside the ICC system. The Chinese position is grounded in several interrelated concerns.

First, sovereignty occupies a central place in Chinese legal thinking. The principle of complementarity, while formally respectful of national jurisdiction, is viewed with suspicion as a mechanism that could permit the ICC to supplant domestic judicial processes. Chinese officials have consistently argued that the Court’s jurisdiction over nationals of non-party states, particularly in situations referred by the Security Council, infringes on sovereign prerogatives.

Second, China objects to the ICC’s prosecutorial discretion and the power of proprio motu investigations under Article 15 of the Rome Statute. The Chinese government prefers a model in which the Security Council retains primary control over the triggering of international criminal jurisdiction, consistent with the Council’s primary responsibility for the maintenance of international peace and security under Chapter VII of the UN Charter.

Third, China has expressed concern about the definition of the crime of aggression and the conditions for its prosecution. Although China participated in the Kampala review conference, it has raised objections to the activation mechanism and the exclusion of Security Council determinations of aggression from the jurisdictional framework.

Chinese Criminal Code Provisions

International crimes are incorporated into Chinese domestic law through the Criminal Law of the People’s Republic of China. Article 9 of the General Provisions establishes the principle of universal jurisdiction under treaty obligations, providing that Chinese criminal law applies to offences committed outside Chinese territory where an international treaty to which China is a party so provides.

Articles 444 to 451 of the Criminal Code address military offences and violations of the laws of war. Article 446 specifically criminalises the ill-treatment of captured persons, wounded personnel, and civilians during wartime. Article 450 addresses the unlawful use of internationally prohibited means of warfare. These provisions implement China’s obligations under the Geneva Conventions, to which China is a party.

Article 9 of the Criminal Procedure Law provides a basis for mutual legal assistance in criminal matters, including for international crimes. China has concluded bilateral extradition treaties with over 50 states and is a party to multilateral conventions including the UN Convention against Transnational Organized Crime and the UN Convention against Corruption.

Observer Status and Selective Engagement

Despite its non-party status, China participates actively as an observer in the Assembly of States Parties to the Rome Statute. Chinese diplomats attend ASP sessions and contribute to discussions on institutional reform, budgetary matters, and the relationship between the ICC and the Security Council.

China’s observer status allows it to shape the Court’s development without accepting its jurisdiction. This approach is consistent with China’s broader strategy of engaging with international institutions to influence their normative evolution while preserving policy flexibility. China has supported the ICC’s work in specific situations referred by the Security Council, including Darfur and Libya, while opposing investigations into situations that it considers to fall outside the Council’s mandate or to intrude on state sovereignty.

China and the UN Security Council Referral Mechanism

China’s position on the Security Council’s role in referring situations to the ICC has been pragmatic and case-specific. China abstained on Resolution 1593 (2005), which referred the situation in Darfur to the ICC, and on Resolution 1970 (2011), referring Libya. In both cases, China expressed concern about the referral’s implications for sovereignty but did not exercise its veto.

China has consistently opposed ICC investigations into situations where it perceives the Court as overreaching. It has been particularly critical of the ICC Prosecutor’s preliminary examinations in Afghanistan and the Palestinian situation, arguing that these exceed the Court’s mandate and undermine the Security Council’s role.

Belt and Road and Legal Cooperation

The Belt and Road Initiative (BRI) has created new contexts for Chinese engagement with international criminal law. The BRI’s transborder infrastructure projects involve Chinese nationals and companies operating in jurisdictions with weak domestic accountability mechanisms for international crimes. This has generated discussion within Chinese legal circles about the adequacy of domestic prosecution mechanisms and the need for enhanced bilateral cooperation.

China’s approach to BRI-related legal cooperation emphasises bilateral agreements and mutual legal assistance over multilateral frameworks. China has opposed the inclusion of human rights or international criminal law conditionalities in BRI agreements, arguing that such provisions constitute interference in domestic affairs.

Universal Jurisdiction and Chinese Opposition

China is a consistent opponent of universal jurisdiction as exercised by European states. The Chinese government has issued diplomatic protests against the issuance of arrest warrants for Chinese officials by foreign courts and has argued that universal jurisdiction is susceptible to politicisation and abuse.

Chinese legal scholarship distinguishes between universal jurisdiction established by treaty (which China accepts for certain crimes such as torture under the Convention Against Torture) and universal jurisdiction under customary international law (which China rejects). This distinction informs China’s position in multilateral fora, where it has supported efforts to define and limit the scope of universal jurisdiction.

Conclusion

China’s relationship with international criminal law is defined by selective engagement and principled reservation. The Tokyo Tribunal legacy provides a foundation of participation, while sovereignty concerns and institutional objections keep China outside the Rome Statute. Chinese domestic law incorporates international crimes but limits their application through traditional jurisdictional principles. As a permanent member of the Security Council and a growing global power, China’s approach to international criminal law will significantly influence the future trajectory of the field, particularly as the ICC seeks to expand its reach and the Security Council’s role in atrocity response evolves.