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China, the Crime of Aggression, and the International Criminal Court

Published online by Cambridge University Press:  11 April 2014

Dan ZHU
Dan ZHU*
Affiliation:
University of Edinburgh, United Kingdomjudyzhuuk@gmail.com
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Abstract

At the Kampala Review Conference in 2010, the adoption of the amendments to the Rome Statute laid the groundwork for the eventual prosecution of the crime of aggression. China, a non-State Party to the International Criminal Court, has articulated its concerns regarding the Court's jurisdiction over the crime of aggression in legal terms. This paper examines the Chinese concerns regarding the role of the Security Council in the determination of an act of aggression and the definition of aggression primarily from a legal perspective. It argues that China has hovered back and forth between two conflicting legal positions on these issues during different periods in history according to its policy preference. This paper also considers the concerns of China from a policy perspective before concluding that the crime of aggression should not be regarded as an insurmountable barrier preventing China's accession to the ICC in years to come.

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Asian Journal of International Law , Volume 5 , Issue 1 , January 2015, pp. 94 - 122
Copyright
Copyright © Asian Journal of International Law 2014 

China has long been supporting the establishment of a permanent international criminal court. It actively participated in every stage of the negotiating process leading up to the creation of the International Criminal Court (ICC).Footnote 1 In the course of the negotiations of the Rome Statute, China was in favour of the inclusion of the crime of aggression under the jurisdiction of the ICC, subject, however, to two conditions: “Firstly, there should be a clear and precise definition of the crime, and secondly, there should be a link with the Security Council.”Footnote 2 As no consensus could be reached on these two issues, the parties chose to shelve the crime of aggression. The result is that the crime of aggression was included in the text of the Statute, but the ICC could not exercise its jurisdiction until the Statute was completed, in accordance with the procedures contemplated by Articles 121 and 123.Footnote 3

The uncertainties surrounding the crime of aggression, among others,Footnote 4 were articulated in legal terms by the Chinese authorities as barriers preventing its move towards full participation in the ICC in 1998.Footnote 5 The interest of China in the ICC, however, was not terminated by its negative vote in Rome. Unlike the US during the Bush administration, which adopted a policy of public hostility to undermine the Court,Footnote 6 China has consistently maintained a dialogue with the ICC and involved itself in the process leading to its continuous evolution. In particular, it followed closely the subsequent negotiations on the crime of aggression by participating in the meetings of the Assembly of State Parties and the Special Working Group on the Crime of Aggression.Footnote 7 Though a non-State Party ineligible to vote in Review Conference decisions, China sent a delegation to observe the conference and voiced its opinions.Footnote 8 Compared to the rest of the Chinese concerns regarding other issues of the Rome Statute, which could not be reopened and addressed by having other states return to the negotiating table, the crime of aggression remained the element over which China could exert its influence.

The negotiations on the definition of the crime of aggression and the conditions under which the ICC can exercise jurisdiction were both legally complex and politically sensitive. As the crime of aggression is intrinsically linked to the commission of aggression by a state, the ICC's ability to exercise jurisdiction over the crime inevitably sits in tension with the role of the Security Council in finding whether an act of aggression has been committed.Footnote 9 Being a permanent member of the Security Council, China has a particular interest in making sure that the ICC's jurisdiction over the crime of aggression would not encroach on the Security Council's special role and the permanent members’ privileged position therein. In addition, the crime of aggression by its very nature implicates the unlawful use of armed force by a state.Footnote 10 Once defined, the adopted definition on the crime might alter the manner in which most states including China could comfortably employ their military power. Due to the competing territorial and jurisdictional claims between China and its neighbours, the risk of armed conflict in the South and East China Sea is significant.Footnote 11 In addition, freedom of navigation in the region is also a contentious issue, especially between the US and China over the right of US military vessels to operate in China's 200-mile Exclusive Economic Zone (EEZ).Footnote 12 A possible clash stemming from US military operations within China's EEZ may add a further level of complexity to the region.Footnote 13 All this inevitably gives rise to the question of whether the increased scrutiny of, and legal challenges to, the possible military actions of China will push it further away from the ICC. Given the various interests at stake, both the definitional and the jurisdictional issues regarding the crime of aggression are of great importance to China's consideration of its relationship with the Court.

This paper first provides a description of China's engagement with the ICC negotiations on the crime of aggression and the arguments made by the Chinese authorities during this process. As China and other permanent members of the Security Council took the view that the institution of proceedings for the crime of aggression before the ICC should be conditional on a prior determination by the Security Council of the existence of an act of aggression, this paper applies international law theory and practice to examine this proposition to see if it is legally sound. The paper also traces China's involvement in the UN practice in relation to aggression, and the Chinese position regarding the exclusive role of the Security Council in the determination of aggression in history. It considers whether the current Chinese argument for a Security Council monopoly on determination of acts of aggression echoes or contradicts its historical position. The paper continues to examine China's concerns regarding the definition of the crime of aggression. It discusses the extent to which China's traditional concerns in relation to the definition of an act of aggression (made under General Assembly Resolution 3314 in 1974) were taken on board and were reflected in the Kampala amendment. It then considers the concerns of China from a policy perspective, and the implications of the crime of aggression for future Chinese engagement with the ICC.

I. The Conditions For The Exercise of Jurisdiction: The Role of The Security Council

A. The Negotiating Process and the Engagement of China

Co-ordinating the roles of the Security Council and the ICC was the question that the International Law Commission (ILC) had attempted to resolve in its Draft Statute by making a determination by the Security Council a condition for the Court to be able to try an individual for aggression.Footnote 14 In the following discussions during the Ad Hoc CommissionFootnote 15 and the Preparatory Commission,Footnote 16 views were divided between those supporting a role for the Security Council in the light of its responsibilities under the UN Charter, and those opposing the politicization of the judicial regime if the Council's approval were to be made a precondition for the exercise of jurisdiction.Footnote 17 Unsurprisingly, the ILC draft provision was strongly supported by the five permanent members of the Security Council (P-5).Footnote 18 In 1997, China clearly expressed its position at the General Assembly Sixth Committee by stating that:

As to the role of the Security Council, his delegation felt that the draft provisions prepared by the International Law Commission were quite balanced and that the importance of maintaining the independence of the court should be taken into full account. It would therefore support any proposal that would ensure the independence of the court and at the same time reasonably reflect the special role of the Security Council in the maintenance of international peace and security.Footnote 19

At the 1998 Rome Conference, the positions on the role of the Security Council vis-à-vis the crime of aggression seemed to have hardened. While some states from the non-aligned movement opposed any role for the Council, the P-5 regarded the role of the Council as a condition sine qua non for the inclusion of the crime of aggression.Footnote 20 China pointed out that:

The ICC should not compromise the principal role of the United Nations, and in particular the Security Council, in safeguarding world peace and security, the provisions of the Statute should not run counter to those of the Charter of the United Nations, and the Conference should be prudent in dealing with the relationship between the Court and the United Nations and the role of the Council.Footnote 21

China insisted on a link between the crime of aggression and the Security Council as a precondition for the inclusion of the crime of aggression under the Rome Statute;Footnote 22 however, China did not specify the nature of the link at that moment. By way of contrast, the US had clearly insisted on an exclusive Security Council role in first determining that an act of aggression had occurred before the ICC could exercise jurisdiction in any particular situation.Footnote 23 China argued that “the operation of the Court should not impede the Council in carrying out its important responsibilities for maintaining peace and security” and “the Council should also have the power to determine whether act of aggression had been committed”.Footnote 24 When voting against the Rome Statute, China reiterated its position that:

Crime of aggression is a state act, and there is no legal definition of the crime of aggression. To avoid political abuse of litigation, it is necessary to have the UN Security Council first determine the existence of aggression before pursuing individual criminal responsibility, as is stipulated in Article 39 of the UN Charter.Footnote 25

The Final Act of the Rome Conference instructed the Preparatory Commission for the Court to “prepare proposals for a provision on aggression, including … conditions under which the International Criminal Court shall exercise its jurisdiction with regard to this crime”.Footnote 26 Accordingly, there emerged some proposals which tried to bridge the gap between positions that defended the Council's exclusive responsibility as a prerequisite for deciding on individual criminal responsibility, and those arguing that the Security Council should have no role at all in this matter.Footnote 27 One of the proposals as presented at the Sixth Session of the Preparatory Commission in 2000 considered that the primary responsibility for determining state aggression lay with the Security Council, but that a failure by that organ to fulfil this responsibility should not render the jurisdiction of the ICC inoperative and non-existent in practice. It provided that the Security Council would be requested by the Court to determine whether in a given situation the crime of aggression had been committed. In the absence of a decision by the Council within a given period of time, the Court could proceed with its investigations or prosecutions.Footnote 28 If the Council was not able to reach any such determination within a given time, the General Assembly would then be asked in turn by the ICC to make such a determination.Footnote 29

China, however, did not seem to be willing to compromise its position. It asserted in its intervention at this session of the Preparatory Commission 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 provision of the Charter.Footnote 30

It is clear that China insisted on assigning the Security Council an exclusive role—in the absence of a prior Security Council determination that the state in question had committed an act of aggression, prosecution would be barred. In addition, China was against the proposals for permitting the determination of aggression by the General Assembly. It further argued that:

There was 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.Footnote 31

During the meetings of the Eighth Session of the Preparatory Commission in 2001, some states proposed that if the Security Council did not make a determination under Article 39 or invoke Article 16 of the Rome Statute within six months, the ICC may request the General Assembly to seek an advisory opinion from the International Court of Justice (ICJ).Footnote 32 China was not in favour of this option. This can be seen from its statement at the Sixth Committee shortly after the Preparatory Commission's discussions. It pointed out that:

If, as some countries were proposing, the Court was left to determine whether a State had committed an act of aggression after the Security Council had failed to do so within a given period of time, the Court would run a high risk of being politicized. His delegation also doubted whether the advisory opinions or judgments of the International Court of Justice should be used as basis for the Court's jurisdiction, as proposed by some countries. According to the Charter of the United Nations and the Statute of the International Court of Justice, the latter's advisory role was limited to giving its opinions on any legal question; it had no mandate to make findings of fact. Moreover, it took a long time to give an advisory opinion, and that ran counter to the requirement of criminal justice.Footnote 33

The Preparatory Commission was unable to reconcile the supremacy of the Security Council and the independence of the Court. Its work was continued by the Special Working Group on the Crime of Aggression (SWGCA), set up under the auspices of the ICC Assembly of States Parties (ASP) in 2002.Footnote 34 The work of the SWGCA was based on the option paper elaborated by the Preparatory Commission.Footnote 35 In a discussion paper proposed by the Chairman in 2007, the Security Council continued to have “the first bite of the cherry” for determining whether an act of aggression had occurred. If the Council declined or failed to make such a determination, there were four options, which were similar to the ones presented at the Preparatory Commission.Footnote 36 The Chinese delegation expressed its preference for the option which gave the final say exclusively to the Council. It reinforced its assertion of an exclusive Security Council role in determining an act of aggression by making reference to several UN Charter provisions. China insisted that:

It is a precondition for the Security Council's determination of aggression to judge whether the International Criminal Court shall have jurisdiction over aggression, and no other organs may make such determination in place of the Security Council. This results from article 24 and article 39 of the Charter of the United Nations, which confers the primary power and responsibility of maintaining international peace and security on the Security Council. This is also consistent with the current effective mechanism of the collective security. Meanwhile, article 103 of the Charter of the United Nations provides that the obligation under the Charter prevails over the obligations of the member States under international agreements, including the Rome Statute. Therefore, with regard to aggression, all member States, whether they are State parties to the Rome Statute or not, have the obligation to respect the authority of the Security Council in terms of international peace and security.Footnote 37

At the same time, it also showed some flexibility in its position by stating that “China is also actively considering other constructive proposals”,Footnote 38 which indicated that China might possibly modify its view on an exclusive Security Council role.

The SWGCA's final effort on provisions and conditions was contained in its Report to the Assembly in February 2009.Footnote 39 The draft comprised articles for addition to the Statute, including Article 15bis, which dealt with the conditions for the exercise of jurisdiction. The resolution of the divergent positions in the Kampala Review Conference was partly facilitated by a move to split the SWGCA's Draft Article 15bis into two parts, one dealing with state referrals and referrals made by the prosecutor proprio motu, and the other which deals with Security Council referrals. These became, respectively, Articles 15bis and 15ter.Footnote 40 Article 15ter applies when the Council, pursuant to Article 13(b), refers to the Prosecutor a situation in which one or more crimes of aggression appear to have been committed. The power of the Council to trigger aggression proceedings has always been uncontroversial.Footnote 41 However, the issue of how to deal with the other trigger mechanisms was extremely contentious. With regard to the trigger by either a state referral or the Prosecutor proprio motu, the question of the role of the Security Council was a question of jurisdictional filter. The P-5 favoured designating the Council as an exclusive and determinative filter—in the absence of a prior Security Council determination that the state in question had committed an act of aggression, prosecution would be barred. Others disagreed strongly about this proposed exclusivity.Footnote 42 In contrast, the P-5 camp was not so resolved. France and the UK, both of which possessed a vote in Kampala, finally moved from their initial position, and their commitment to the ICC trumped their loyalty to their P-5 allies.Footnote 43 The Kampala compromise reflected the strongly felt preference of the overwhelming majority of the States Parties for granting the ICC Prosecutor the ability to proceed with an investigation of an alleged crime of aggression without a Security Council monopoly, albeit only with the approval of the ICC Pre-Trial Division.Footnote 44

When the consensus decision was reached in Kampala, China declared its dissatisfaction with the rejection of a Security Council monopoly with respect to the conduct of proceedings for the crime of aggression before the ICC.Footnote 45 As reiterated by the Chinese Deputy Director-General of the Department of Treaty and Law of the Ministry of Foreign Affairs, Jian Guan, “the amendment does not completely reflect the relevant provisions and requirement of the Statute and the Charter … it is the exclusive power of the Security Council to determine the act of aggression, which is provided in the UN Charter”.Footnote 46

B. Concerns of China Regarding the Role of the Security Council

As shown above, China's legal arguments on the crime of aggression were Charter based and turned on, inter alia, the language in Article 24(1) and Article 39 of the UN Charter. Notwithstanding these textual arguments, the Security Council exclusivity thesis has come under fire for being without foundation in the text of the UN Charter and as inconsistent with UN practice and ICJ jurisprudence.Footnote 47 In particular, China's legal arguments in favour of Council exclusivity in the aggression realm proved unconvincing in the light of past UN practice supported by China itself.

Indeed, Article 39 of the Charter has empowered the Security Council to determine, among others,Footnote 48 the commission of an act of aggression. However, this does not mean no other body can ever determine the existence of aggression. The Security Council priority flows from Article 24(1) of the UN Charter, according to which, the Council has the “primary responsibility for the maintenance of international peace and security”.Footnote 49 This is further elaborated in Article 12(1), which provides that the General Assembly shall not make recommendations in relation to a case while the Security Council is exercising its function in that case.Footnote 50 However, the responsibility placed upon the Security Council for the maintenance of international peace and security is “primary” rather than “exclusive”.Footnote 51 This issue has been addressed in the General Assembly Uniting for Peace Resolution, which gives a role to the General Assembly where the Security Council is stalemated by the use of veto.Footnote 52 In the course of the debate prior to the adoption of this resolution, even the US acknowledged that while primary responsibility for the maintenance of international peace and security rests with the Security Council, its responsibility was not exclusive.Footnote 53 Aimed primarily at overcoming any hurdle posed by Article 12(1), the resolution clearly implies an ability of the General Assembly to determine the existence or occurrence of acts of aggression. If it did not have this power, the General Assembly could not properly determine whether or not it was appropriate to make a recommendation relating to the use of armed force to maintain or restore international peace and security.Footnote 54

The Uniting for Peace Resolution has been invoked several times to convene emergency special sessions of the General Assembly. A notable example is found in Resolution 498 of 1 February 1951, in which the General Assembly condemned the actions of China in Korea as aggression.Footnote 55 In addition, the Security Council itself on a number of occasions has invoked the resolution and called for emergency special sessions of the General Assembly.Footnote 56 There has been no recorded protest of the Security Council in relation to this practice. Notably, China voted in favour of a Security Council resolution calling for an emergency special session of the General Assembly to examine the situation in Afghanistan.Footnote 57 The basis for the request, as expressed in the Security Council resolution itself, was the “lack of unanimity of [the Security Council's] permanent members” which “prevented it from exercising its primary responsibility for the maintenance of international peace and security”.Footnote 58 This request was predicated upon a direct allusion to the Uniting for Peace Resolution.Footnote 59 Even though the Chinese government was not a co-sponsor of the 1950 Uniting for Peace Resolution like the other permanent members, China has voted pursuant to that resolution when it suited.

In addition, there is significant practice on the part of the General Assembly in making determinations that aggression has occurred. The General Assembly has in six situations qualified certain acts as “aggressive acts”, “acts of aggression”, or “aggression”.Footnote 60 It should be noted that the practice of the General Assembly have been supported by the Chinese government since it took up its seat in New York. Without questioning the competence of the General Assembly to determine whether or not a state has committed an act of aggression, China consistently voted in favour of the General Assembly resolutions characterizing certain situations as aggression.Footnote 61 The support of China in the General Assembly practice therefore confirms that, while it is true that the Security Council has a priority power to determine whether or not an act of aggression has been committed, this is not an exclusive power of the Council that would preclude the General Assembly or other organs from making aggression determinations.

The argument that the Security Council does not have exclusive power in this area also gains substantial support from the ICJ in various cases. In the Certain Expenses Advisory Opinion (1962), the ICJ stated, although in relation to Article 24 of the Charter, that while the responsibility of the Security Council in the matter was primary, it was not exclusive.Footnote 62 Similar readings of Article 24(1) can also be found in the ICJ's subsequent cases, including the Nicaragua caseFootnote 63 and the Palestinian Wall Advisory Opinion.Footnote 64 The competence of the General Assembly in making determinations of aggression was confirmed by the ICJ in the Certain Expenses Advisory OpinionFootnote 65 and the Namibia Advisory Opinion.Footnote 66 In addition, any argument as to the need for the ICC to be subservient to the Security Council based on Article 12(1) may be considered to be somewhat nullified by the ICJ's practical interpretation of the provision.Footnote 67

Apart from confirming the competence of the General Assembly in making determinations of aggression, the ICJ itself is experienced at making legal determinations related to violations of Article 2(4), although the ICJ has been wary of actually using the word “aggression”. Undoubtedly, there is considerable overlap between aggression and a use of force in violation of Article 2(4), even though aggression is generally taken to be a narrower category than unlawful use of force.Footnote 68 In practice, the ICJ is asked to find that a state has violated the prohibition of the use of force or has committed aggression, as for example, in the 1986 Nicaragua case,Footnote 69 and the 2005 Armed Activities case.Footnote 70 In these instances, the ICJ has generally framed the issue as whether a state had used force in violation of Article 2(4) of the Charter. The ICJ was reluctant to frame the issue as whether a state had committed aggression, but it equated armed attacks with acts of aggression in distinguishing between the most grave and the less grave forms of the use of force.Footnote 71 However, the Separate Opinions of the individual judges acknowledged without ambiguity that the ICJ is able to determine the occurrence of an act of aggression.Footnote 72 It is obvious that the ICJ did not shy away from performing its judicial role in the field of the use of force and aggression. Even though the ICJ has so far never actually applied the phrase “act of aggression” to any state, it clearly has the competence to do so.Footnote 73

Not only has the practice of the Security Council, the General Assembly, and the ICJ challenged China's proposition for an exclusive Security Council power in determining an act of aggression, China's insistence on an exclusive Security Council role in the question of aggression has not been consistent and uncompromising. Back in 1974, in defining aggression, regardless of its permanent membership of the Security Council, China alone expressed doubts about the wisdom of expecting the permanent members of the Security Council, with their veto power, to decide which acts would be condemned as aggression.Footnote 74 China explicitly pointed out that:

The super-Powers were arguing very hard for their idea that it was only up to the Security Council to decide whether a specific act constituted an act of aggression. Obviously, what they had in mind was invariably their veto power in the Security Council. In the event of their aggression against other countries, they could remain unpunished by casting a single negative vote. Consequently it may well be asked whether the whole text of the definition of aggression would not become a mere scrap of paper.Footnote 75

China believed it was “absolutely impermissible for the few imperialist Powers to have the final say, because the aggressors would never bring themselves to trial”.Footnote 76 Thus China suggested that the UN determination of the objective facts on aggression should be made by all the Member States, big or small, not by the superpowers in the Security Council.Footnote 77 It is clear that China was against the exclusive Security Council role at the beginning of its engagement in the UN. It is thus not difficult to understand why China was reluctant to claim a monopoly role for the Security Council during the early negotiation process of the Rome Statute. More significantly, on many occasions China has lent its support to the General Assembly's determination of acts of aggression. Even though China hardened its position for an exclusive Security Council determination at a later stage of the negotiations on the crime of aggression, it did not rule out the possibility that this position could be compromised and changed, as China has previously shown in theory and practice that the Security Council should not have a monopoly over the question of aggression. As noted above, in the SWGCA, even though China was inclined to support the option of an exclusive Security Council filter, at the same time it chose to keep the possibility open of accepting other constructive proposals.Footnote 78

It is therefore a natural conclusion that China's insistence on an exclusive Security Council role in the determination of an act of aggression is not one of a fundamental legal character but rather a policy preference. Even though the Kampala amendment did not grant an exclusive role to the Security Council in filtering the ICC's jurisdiction over the crime of aggression, it should not be regarded as a legal barrier impeding China's accession to the ICC.

II. The Definition of The Crime of Aggression

As only when the individual commits the acts in the context of state aggression would criminal responsibility follow, defining the crime of aggression involves two issues: first, the crime the individual commits, and second, the act by the state of aggression. Uncontroversial were those parts of the definition that concerned individual criminal liability as opposed to the definition of the state act of aggression to which the crime is linked.Footnote 79 It was widely agreed that the state act underlying the crime of aggression had to be an illegal use of armed force. However, international law on the use of force, which is often referred to as the “jus ad bellum”, although clear in their core content, are surrounded by a grey area of legal controversies.Footnote 80 These uncertainties, which include the applicability of exceptions for anticipatory self-defenceFootnote 81 and humanitarian intervention,Footnote 82 affect not only the potential criminal responsibility of individuals charged with the crime of aggression, but also the interests of states, including China and the US, in whether their acts are considered to amount to aggression or not.

A. The Negotiating Process and the Involvement of China

In its Draft Statute, the ILC left the question of the definition of the crime of aggression open. During the Preparatory Committee negotiations, there were two main schools of thought. One group of countries favoured an approach which was largely based on the “Definition of Aggression” annexed to the General Assembly Resolution 3314 (XXIX).Footnote 83 That definition, adopted by consensus in 1974, was intended to serve as guidance for the Security Council in determining the existence of an act of aggression by a state.Footnote 84 However, the definition of aggression as an international crime differs greatly from the definition of aggression for the purposes of a political determination by the Security Council, if for no other reason than that the principles of legality in international criminal law require that crimes be specifically defined and their elements clearly stated.Footnote 85 Therefore, a majority of countries attempted to present a definition of the crime of aggression which would be both precise and narrowly tailored.Footnote 86 At the Rome Conference, most of the states maintained their previous position, and no generally acceptable definition of the crime of aggression could be agreed upon.Footnote 87

The following search for a definition of the crime of aggression was carried out in the Preparatory Commission set up by the Final Act of the Rome Conference and the subsequent SWGCA created by the ASP. There continued to be significant debates around the question of whether the list of acts contained in General Assembly Resolution 3314 should indeed serve as a basis for the definition of the crime of aggression, and whether a qualifying element should be added.Footnote 88 In 2007, at the Fifth Session of the ASP in discussions regarding the reference to General Assembly Resolution 3314 in Paragraph 2 of the 2007 Discussion Paper, broad support was expressed for the retention of that reference.Footnote 89 The remaining challenge was how exactly to make use of the resolution in the new context: to refer to Resolution 3314 in its entirety or to “pick and choose”.Footnote 90

The “Definition of Aggression” annexed to Resolution 3314 contains a Preamble, reaffirming the fundamental principles upon which it is based and eight operative Articles, including:

Article 1 Aggression is the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations, as set out in this Definition.

…

Article 2 The First use of armed force by a State in contravention of the Charter shall constitute prima facie evidence of an act of aggression although the Security Council may, in conformity with the Charter, conclude that a determination that an act of aggression has been committed would not be justified in the light of other relevant circumstances, including the fact that the acts concerned or their consequences are not of sufficient gravity.

Article 3 Any of the following acts, regardless of a declaration of war, shall, subject to and in accordance with the provisions of article 2, qualify as an act of aggression:

(a) The invasion or attack by the armed forces of a State of the territory of another State, or any military occupation, however temporary, resulting from such invasion or attack, or any annexation by the use of force of the territory of another State or part thereof,

…

(d) An attack by the armed forces of a State on the land, sea or air forces, or marine and air fleets of another State;

…

Article 4 The acts enumerated above are not exhaustive and the Security Council may determine that other acts constitute aggression under the provisions of the Charter.

…

Article 8 In their interpretation and application the above provisions are interrelated and each provision should be construed in the context of the other provisions.Footnote 91

This Definition employs two approaches at the same time: a deductive approach in Article 1 in which it proposes a general formula based on Charter Article 2(4);Footnote 92 and an inductive approach in which it enumerates acts which constitute aggression in a non-exhaustive manner which appears in Article 3.Footnote 93 Article 2 provides that the first use of armed force by a state in contravention of the Charter shall constitute prima facie evidence of an act of aggression. The Security Council may, however, in conformity with the Charter, conclude that a determination that an act of aggression has been committed would not be justified in the light of other relevant circumstances.Footnote 94 Article 4 confirms that the prohibitions listed in Article 3 are not exhaustive. The permanent members of the Security Council, with their veto power, retain the power to decide which acts would be condemned as aggression.Footnote 95

At the ASP's Fifth Session, some delegations expressed support for an explicit reference to Articles 1 and 3 of Resolution 3314, as reflected by the inclusion of the phrase “Article 1 and Article 3”, in brackets, in the 2007 Discussion Paper.Footnote 96 These delegations argued that these paragraphs were pertinent and concrete references, whereas a reference to the resolution as a whole would violate the principle of legality, since it would also entail references to unspecified acts in Article 4.Footnote 97 Other delegations, including China, favoured a reference to Resolution 3314 in its entirety, insisting that the text had been drafted as a careful compromise after lengthy negotiations.Footnote 98 China expressed its support for the “general reference to the UN General Assembly Resolution 3314”,Footnote 99 but rejected the “pick and choose” approach. It suggested the “deletion of the content in the square brackets” by arguing that:

It is well known that it was not easy to define aggression in Resolution 3314, and it is the product of comprehensive considerations of various factors and balancing of various concerns. Article 8 of the Resolution 3314 particularly stresses that every article is interlinked in the interpretation and application. Therefore, China considers it highly necessary to retain the integrity of Resolution 3314.Footnote 100

China particularly pointed out that “it is not a reflection of the principle of legality to only refer to article 1 and article 3”.Footnote 101 However, the final definition of the “act of aggression” adopted at Kampala, though it made reference to General Assembly Resolution 3314, did not include Article 2 and Article 4 as China requested.

Divergence also existed on the question of whether the reference to the state act of aggression in the Annex to Resolution 3314 should be subject to a qualifier. One camp insisted that there be a higher threshold for criminal conduct, and they would not accept an unqualified reference to Article 1 and Article 3 of the Annex to Resolution 3314.Footnote 102 These proponents of the threshold clause argued that it would constitute important guidance for the Court, and in particular prevent it from addressing borderline cases.Footnote 103 The other camp favoured a more inclusive definition that referred to the list of acts contained in Article 3 of the Annex to Resolution 3314 without any additional threshold. These delegations argued that there was no need to qualify a state's act, as a certain threshold was inherent in the limitation of the jurisdiction of the Court to the “most serious crimes of international concern” (Article 1 of the Statute) and in the restrictive use of the term of aggression under the UN Charter.Footnote 104

It soon became clear that a reference to Resolution 3314 needed to be qualified if consensus were to be achieved.Footnote 105 The discussion paper proposed by the Chairman in 2007 suggested two options: a manifest threshold or an “object or result” test.Footnote 106 The latter option referred to an act of aggression as being “the object or result of establishing a military occupation of, or annexing, the territory of another State or part thereof”.Footnote 107 Critics of the object or result approach argued that it would unduly limit the scope of the crime of aggression.Footnote 108 Finally, broad support was voiced for the manifest threshold.Footnote 109 At the very beginning of the process of defining the crime of aggression, China expressed the necessity for the inclusion of a threshold by stating that “the issue of defining the crime of aggression was of great concern to all States. An appropriate threshold should be set, engaging individual criminal responsibility, and the basis for doing so should be customary international law … .”Footnote 110 However, there is no official record revealing China's preference for any specific qualifier at this stage.

The Kampala Review Conference eventually adopted the “manifest” threshold accompanied by a series of understandings. The threshold clause is contained in Article 8bis of the Rome Statute, according to which:

(1) For the purpose of this Statute, “crime of aggression” means the planning, preparation, initiation or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations.

(2) For the purpose of paragraph 1, “act of aggression” means the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations. Any of the following acts, regardless of a declaration of war, shall, in accordance with United Nations General Assembly resolution 3314 (XXIX) of 14 December 1974, qualify as an act of aggression … Footnote 111

As noted earlier, different from the consistent Chinese engagement, the US government deliberately chose not to participate in the earlier negotiations on this matter before the Obama administrations characterized their voluntary absence from the Princeton Process as a mistake.Footnote 112 In the fall of 2009, the US began its re-engagement with the ICC ASP. By that time, however, the ASP had concluded the major part of its negotiations on defining the crime of aggression. Both at Kampala and previously, the US expressed its concern that “the current draft definition remains flawed”.Footnote 113 The primary US objective for the Review Conference was to alter the definition that had been finessed—without US input—in the years leading up to Kampala.Footnote 114 As momentum was not in their favour, the US did not insist on reopening the debate on the respective drafts, but proposed a set of draft understandings to narrow the definition. When the US delegation tried to “smuggle” the idea into the understandings that in determining an act of aggression “the purposes for which force was used” should be taken into account, and disguised it as an innocent reflection of Resolution 3314,Footnote 115 the Chinese delegation joined Iran in questioning the reference to “purpose” proposed by the US delegation.Footnote 116 These understandings, in modified form, were ultimately adopted.Footnote 117

B. The Concerns of China Regarding the Definition of the Crime of Aggression

With regard to the state element of the crime of aggression, China insisted on a reference to the entirety of the General Assembly Resolution 3314 as opposed to the pick and choose approach adopted by Article 8bis, which omits Article 2 and Article 4 of Resolution 3314, allowing the Security Council to exclude and include acts not falling under the general definition. This Chinese position, however, does not echo, and even seemingly contradicts, its previous view about the validity and content of Resolution 3314 back in 1974.

The definition of aggression contained in Resolution 3314 was the product of seven years’ work by the Special Committee on the Question of Defining Aggression established by the General Assembly in 1967. As such, much of the committee's work was already in progress when the People's Republic of China entered the UN in 1972. The final report of the Special Committee as presented to the Sixth Committee therefore had no Chinese input.Footnote 118 The Sixth Committee adopted the draft resolution without a vote at its 1503rd meeting on 20 November 1974. China expressed its serious reservations about, if not outright opposition to, the definition of aggression by stating that “if a vote had been taken on the draft resolution which had just been adopted … [China] would not have taken part in it”.Footnote 119 There were several deficiencies in the definition particularly raised by China at that time.

The 1974 definition, in particular Article 2 and Article 4, was criticized by China as being deficient because it gave too much freedom of action to the Security Council, and thus to its permanent members. Under Article 2 and Article 4 of the General Assembly definition, the Security Council may decide that an act that meets the definition is nonetheless not aggression and,Footnote 120 on the other hand, that acts other than those on the list may be regarded by the Security Council as aggression.Footnote 121 As noted earlier, in 1974 China was the only country among the permanent members that expressed doubts about the broad discretion of the Security Council in determining acts of aggression. It argued that:

As it stood the definition would enable the super-powers to take advantage of their position as permanent members of the Security Council to justify their acts of aggression and, by abusing their veto power, to prevent the Security Council from adopting any resolution condemning the aggressor and supporting the victim.Footnote 122

Therefore, “it was difficult to see how the definition could have the effect of deterring a potential aggressor”.Footnote 123 The Chinese officials repeatedly voiced the opinion that the identification of the aggressor is more important and more necessary than the actual definition of aggression.Footnote 124 It pointed out that “the whole text of the definition of aggression would become a mere scrap of paper if the permanent members could remain unpunished by casting a single negative vote in the event of their aggression against other countries”.Footnote 125 It was no wonder therefore that China fiercely criticized Article 2 and Article 4 as part of the definition of the act of aggression.

However, a few decades later, in the debates on the criminalization of aggression, China turned to support the reference to Article 2 and Article 4 which it previously identified as deficient provisions. When seeking a greater role for the Security Council in determining the act of aggression for the purpose of attaching individual criminal responsibility, China chose to bring Article 2 and Article 4 into play. It instead argued that:

According to the relevant provisions of the Charter of the United Nations, it was the responsibility of the Security Council to make such a determination. Therefore, the definition of the crime of aggression and the conditions governing the jurisdiction of the Court for that crime were interrelated and indivisible.Footnote 126

It is obvious that the alternating Chinese position regarding the definition of the act of aggression as part of the crime of aggression clearly echoed, or even depended on, its shifting view about the role of the Security Council in the determination of an act of aggression during different periods in history. As discussed above, China's view about the proper role of the Security Council vis-à-vis aggression was not an issue of a legal character but rather a policy preference; accordingly, its position on the definition of an act of aggression was not based on its reflections of the status of customary international law, but rather policy considerations.

This policy preference can also been seen in China's shifting views about Article 1 and Article 3 of Resolution 3314. In 1974, China pointed out that “the meaning of certain provisions was too vague, and there were many loop-holes in interpretation, both with regard to the criteria for determining acts of aggression and with regard to the enumeration of instances of aggression”.Footnote 127 This clearly referred to Article 1 and Article 3, respectively. The criteria for determining acts of aggression is spelt out in Article 1, which is identical to the current definition of an act of aggression under Article 8bis(2). Back in the 1970s, China was keen on drawing a line between the “aggression” and the “victim of aggression”, and insisted that the latter has a right of “self-defence”.Footnote 128 In other words, China wanted a clear distinction between the act of aggression and self-defence. However, this goal was hard to achieve. In fact, the line between aggression and self-defence against aggression has been a sensitive issue which has confronted China many times in history. For example, in 1951 China was condemned by a General Assembly resolution for having itself engaged in aggression in Korea,Footnote 129 which it considered to be justified self-defence.Footnote 130 Before the adoption of the General Assembly resolution, China accused the US, another permanent member of the Security Council, of committing an act of aggression against itself,Footnote 131 and it even submitted a draft resolution to the Council with the aim of condemning the US.Footnote 132 However, China's proposition was not supported by the international community and it ended up being labelled an aggressor. There were also other instances in which the use of force, though claimed by China as self-defence,Footnote 133 cannot be simply regarded as in strict compliance with Article 51 of the UN Charter, but instead fell within the grey area. Considering its territorial disputes with its neighbours and possible pre-emptive self-defence, the particular sensitivities it raised in the past still remain relevant to China's position today. Given China's experience during its “century of humiliation” when it was subjected to repeated interventions by foreign powers,Footnote 134 its own current internal challenges to sovereignty, arguably in Tibet, and the subsequent risk of being a target of humanitarian intervention, there has been some caution surrounding the definition of the act of aggression. It is thus curious to notice that China did not hesitate to show its support for Article 1 of Resolution 3314, which was itself considered ambiguous in determining an act of aggression and indeterminate in addressing the grey area issues.

Apart from that, China also supported the reference to Article 3, some provisions of which were previously identified by China as flawed. For example, in 1974, China singled out Article 3(d), according to which, “an attack by the armed forces of a state on the land, sea or air force, or marine and air fleets of another state” will qualify as an act of aggression.Footnote 135 Article 3 sets forth a list of acts, regardless of a declaration of war, qualifying as acts of aggression. China argued that “article 3(d) was too loosely worded in so far as an attack on marine fleets was concerned”, and “in its present ambiguous form, it might be used by the super-Powers to slander a coastal State acting in defence of its sovereignty by labelling its action an act of aggression”.Footnote 136 China insisted that “the Coastal State had the right to take action against fleets illegally entering their national waters in order to protect their national economic rights and interests and their marine resources”.Footnote 137 China also claimed that “the draft definition must in no way prejudice the exercise of such rights by the coastal States”.Footnote 138 Contemporaneous with the debates on aggression at the General Assembly, military activities in another state's EEZ were a point of contention during the negotiations at the Third UN Conference of the Law of the Sea.Footnote 139 The United Nations Convention on the Law of the Sea (UNCLOS), however, does not clarify the specific issue of military activities in the EEZ, and a major source of contention in law continues to be whether maritime states may unilaterally conduct military operations in the EEZ of the coastal state without permission.Footnote 140 Nevertheless, in the debates on criminalizing aggression, China did not raise any particular objection to the inclusion of this provision at all.

In arguing for a reference to Resolution 3314 as a whole, which gave the Security Council great discretion in determining acts of aggression by virtue of Article 2 and Article 4, China chose to compromise its previous position on Article 1 and Article 3. This further proves that China's position on the definition of the state component of the crime of aggression shifts according to its policy preference for a stronger or a weaker role of the Security Council in the determination of an act of aggression. Therefore, the omission of a reference to Article 2 and Article 4 in the definition of the crime of aggression should not be regarded as a legal impediment to China's acceptance of the Kampala Amendment.

In fact, the definition of the crime of aggression is actually moving towards the Chinese position. The inclusion of a threshold was consistent with the Chinese position, and the “manifest” threshold does not contradict the Chinese view as known from the current materials available. Historically, China categorically rejected the idea of introducing “aggressive intent” into the definition of aggression. It insisted that aggressive intent was a subjective element, which can be determined only when it is manifest through concrete objective acts of aggression.Footnote 141 It was pointed out that the objective facts must be taken as the basis for judging whether a state had harboured aggressive intent, rather than the other way round. In the view of China, the determination of an act of aggression cannot, and should not, be made on the basis of whether a state had an aggressive intent.Footnote 142 It is, therefore, no wonder that China challenged the US's initiative to introduce the “intent” dimension into the understandings of what is the state component of the crime of aggression at the Kampala Conference. As a result, the general definition does not make explicit reference to the purpose for which force is used, despite US efforts to include such language. On the other hand, the inclusion of the manifest threshold and the understandings can help to preserve the grey area of the jus ad bellum that traditionally concerned China.Footnote 143 In a sense, the current definition of the crime of aggression triggers fewer Chinese sensitivities than was previously the case with the General Assembly definition on aggression. If anything is moving further from the Chinese current position regarding aggression, it is the missing role of the Security Council. However, as discussed previously, the lack of a Security Council filter should not be seen as a legal obstacle for China in accepting the Rome Statute.

III. The Crime of Aggression and Other Chinese Concerns Regarding The Rome Statute

China's attitude towards the ICC is based on, and rooted in, a range of specific concerns which were formulated in legal terms even before 1998 when the Rome Statute was finalized. However, there have been significant developments both in the Statute itself and in practice since the Chinese objections were first articulated. The amendment on the crime of aggression, which is one of these developments, directly touches on China's pre-existing concerns regarding the Rome Statute's jurisdictional provisions.

The acceptance of the jurisdiction of the Court was the most controversial issue in the entire negotiations surrounding the establishment of the ICC.Footnote 144 One question was how a state would accept the Court's jurisdiction—whether states would automatically accept the Court's jurisdiction over crimes as soon as ratification took place, or whether they would have to give specific acceptance to the Court's jurisdiction over each particular crime.Footnote 145 China argued for an “opt-in” system,Footnote 146 whereby jurisdiction over certain crimes was not conferred automatically on the Court by the sole fact of becoming a party to the Statute, but that in addition, a special declaration was needed to that effect.Footnote 147 However, the opt-in system favoured by the Chinese authorities was not adopted by the Rome Statute. Rather, Article 12 grants the ICC automatic jurisdiction over the crimes listed in Article 5 without the additional consent of States Parties. Moreover, the ICC's jurisdiction over nationals of non-States Parties without state consent has been officially one of the main reasons for the Chinese government's opposition to the Court, which is also shared as the “principal American legal objection”.Footnote 148

In fact, China's concerns regarding state consent have been alleviated to a great extent in the context of the crime of aggression. The jurisdictional filter, as finally set forth in Article 15bis, is a combination of consent-based and Security Council-based filters. The first layer of the filter is state consent. According to Article 15bis(4), the Court must first determine whether the crime of aggression arises from an act of aggression by a State Party that had previously declared to the Registrar of the Court that it does not accept the Court's jurisdiction on aggression.Footnote 149 If such a declaration had been filed, then the Court may not proceed against the nationals of such a State Party. Article 15bis(4) indeed opens the opportunity for States Parties to “opt-out”Footnote 150 of the Court's exercise of jurisdiction over the crime of aggression. In addition, pursuant to Article 15bis(5), the Court cannot exercise jurisdiction over the crime of aggression when committed by non-party nationals or on a non-party territory.Footnote 151 When the Rome Statute was adopted, China argued that there was an apparent drafting flaw in Article 121(5) of the Statute in which only a State Party could declare its non-acceptance of a new crime while oddly leaving non-States Parties exposed to the Court's jurisdiction for such newly added crimes.Footnote 152 Nevertheless, in the SWGCA, a strong preference was expressed not to discriminate in the exercise of the Court's jurisdiction over the crime of aggression between States Parties which have not accepted the amendment and non-States Parties.Footnote 153 The Chinese concern has been greatly addressed by excluding non-States Parties from the Court's jurisdiction over the crime of aggression in Kampala.

Another concern of China in Rome was about the possible abuse of the authority by the Prosecutor, and the insufficient checks on proprio motu power.Footnote 154 In Kampala, a special regime was adopted to the exercise of proprio motu power with respect to the crime of aggression. If prosecution for the crime of aggression results from the Prosecutor exercising proprio motu authority, it is the Pre-Trial Division that authorizes the commencement of an investigation.Footnote 155 Though this is similar to the mechanism that applies to proprio motu prosecution for the other three crimes pursuant to Article 15 of the Statute, the threshold of checks has been increased; the task belongs not to the Pre-Trial Chamber, which is composed of three judges, but to the Pre-Trial Division, which has a minimum of six judges.Footnote 156 This provides the Chinese authorities with a certain level of assurance. In fact, the trajectory of the developments of the ICC is heading towards alleviating the underlying concerns of the Chinese authorities regarding the Rome Statute as a whole.

IV. The Crime of Aggression and China's Policy Choice

China's legal arguments in relation to the crime of aggression form the superstructure of its policy choices demonstrated by its adopting alternating policies for a greater or smaller role for the Security Council in the determination of aggression during different periods in history. The Kampala outcome, however, does not resonate with the current Chinese policy preference for a greater role of the Security Council; thus the question arises as to whether the crime of aggression amendment constitutes an insurmountable obstacle for China to join the ICC from a policy perspective.

Had the Assembly of States Parties opted to make a Security Council resolution a prerequisite to the ICC's exercise of its aggression jurisdiction, China would have been able to exercise a certain control over the ICC's aggression docket. The ability to exert power over the ICC's jurisdiction over aggression—even if only indirectly and in part—would have been the assurance that Chinese nationals would never appear before the ICC on aggression charges. That arrangement would likely have provided a practical benefit to China in the event of any armed conflict with its neighbours. However, even though China's preference for an exclusive filter by the Security Council was not accommodated by the Kampala formula, it can still move towards full participation in the ICC without becoming vulnerable to the operationalization of the crime of aggression by making use of the opt-out mechanism in the same way as it approached the UNCLOS's jurisdictional provision over military activities. As early as 1976, at the Third UN Conference on the Law of the Sea, China completely opposed the idea of compulsory jurisdiction provided by the UNCLOS.Footnote 157 Despite this, in 1996 China became a State Party to the Law of the Sea Convention and accepted the dispute settlement mechanism therein. At a later stage, by making an opt-out declaration, China exempted itself entirely from the UNCLOS compulsory jurisdiction disputes over certain areas, including military activities.Footnote 158 When it comes to the ICC, even though the Court does not deal with state responsibility in relation to aggression, the Kampala outcome firmly protects the prerogatives of states to choose whether to subject their military activities, albeit indirectly, to the Court's scrutiny. The opt-out mechanisms adopted by the Kampala Amendment will keep intact the assurance that no Chinese military officers can be prosecuted for aggression at the ICC without the consent of China.

As China's policy for an exclusive Security Council say mirrors its growing influence in the United Nations and its pre-eminent position as a major international player, the unprecedented challenge posed by the ICC in a field that has been previously occupied, though not exclusively, by the Security Council also accounts for China's difficulties in embracing the Court. The move to criminalize aggression and put the determination of this crime into judicial hands rather than the political ones can be understood as a move to manoeuvre around the intractable problem of the Security Council's long-standing unwillingness to tackle aggression, which is more or less foreshadowed by the veto powers of the five permanent members.Footnote 159 The Kampala Amendment on aggression has been hailed as “a historic breakthrough in international law”, which “opens up a concrete perspective, a unique chance, if sustained and fully implemented, to criminalize aggression and illegal war-making”.Footnote 160 There appears to be an irreversible momentum towards the criminalization of aggression through an independent judicial forum, as demonstrated by the common will of the States Parties at Kampala and the subsequent ratification or active preparations for ratification by an increasing number of Member States. The Kampala Amendment was in fact an attempt by many states to effect indirectly what could not be done directly, namely, the reform of the United Nations and the amendment of the Charter.Footnote 161 The transition from the prohibition on aggression by states to individual criminal culpability for aggression, which moves the question of resort to armed force from the exclusive purview of the Security Council to a judicial forum, inevitably hives off parts of the Security Council's authority and the privileges of the great powers including China. In addition, there may be cases where the Security Council does not consider that aggression has materialized, whilst the ICC may take a contrary position and consequently find individuals criminally responsible for aggression. Due to the dedicated relationship between collective security and international criminal justice, the prosecution of the crime of aggression by the ICC may constitute an encroachment on the mandate of the Council to serve as the primary guardian of the maintenance of international peace and security, in which China has a keen interest as a permanent member.

The process towards the criminalization of aggression is somehow accompanied by the danger of the politicization of international criminal law. The determination of the Security Council, which is a political organ with wide discretionary powers, as to whether an act of aggression has taken place, is not automatic but a result of political considerations.Footnote 162 In the absence of a Security Council determination on an act of aggression, the ICC may have to engage with highly political questions, which are likely to lie outside the scope of its judicial function. In addition, the crime of aggression is particularly susceptible to being used as the means by which political battles might be waged through the forum of the Court. All these possibilities seem to match the alleged patterns of politicization.Footnote 163 However, the amendment on aggression adopted in Kampala was a decisive move by the majority states to isolate the ICC from the Security Council's political influence over the issue of aggression, albeit that doing so may risk politicizing international criminal law.

The majority states at Kampala moved not only to take the determination of aggression out of the political realm and vest it in the judicial forum, but also to take on the vexed issue of defining a crime of aggression. The aggression amendment in Kampala stands for a significant legal development in the most sensitive area of international criminal justice and, by implication, in international law on the jus ad bellum prohibition on force in general.Footnote 164 However, these uncertainties regarding the future ability of the ICC to deal with the crime of aggression and the consequential risks are unlikely to undo the agreement that has been achieved in Kampala. The question thus confronting the Chinese policy-maker is how China, a permanent member of the Security Council, should respond to this normative change of international law.

For China, the cost-benefit analysis of its support for or opposition to the ICC requires a consideration not only of the Court's specific strengths and weaknesses as an institution, but also of the larger picture of the Court's role in the evolution of international legal norms. Considering the fact that the Court's future case-law will be crucial in clarifying the most controversial aspects raised by the text agreed in Kampala, direct engagement with the ICC would allow China to obtain the opportunity to have a major role in shaping the evolution of the Court in ways that lead up to ideal visions of the international legal system. Conversely, staying away from the ICC and clinging to its privileged position in the Security Council means that a critical aspect of the international legal system would be developed without China's input. Both China and the US cannot afford to pay the price of opting out of the evolving experience of the ICC in relation to the crime of aggression. This lesson can be learned from the absence of the US government from the earlier aggression negotiations. Part of the reason that led the US to shift its policy was the realization of the disadvantages of its isolation from, or opposition to, the ICC. The Obama administration came to realize that the US would have too much to lose if it continued to let the opportunity to institutionalize international criminal justice slip away. The US eventually got beyond its frustration with the past impasse, and started to appreciate, as China already had, the benefits of positive engagement with the ICC. These benefits have contributed to the US moving towards the current level of Chinese engagement with the court. Though the final template adopted in Kampala is, in one sense, a far cry from the long-standing shared Chinese and US objective for an exclusive Security Council filter, the involvement of both states has contributed to the ever-important issue of the definition of the crime of aggression. At least, the adoption of the opt-out jurisdictional provision on the crime means regaining a piece of what China was unable to get in Rome.

V. Conclusion

China has long been supporting the establishment of an international criminal court. It has accepted that the creation of such an institution is a positive addition to the international legal architecture. China also showed keen interest in creating a mechanism to prevent and punish future aggressors. At the same time, difficulties exist. There are two major issues in relation to the crime of aggression articulated by the Chinese authorities on many occasions as legal obstacles preventing China joining the ICC. After a close examination, it is obvious that these Chinese concerns are not ones of a fundamentally legal character. The crime of aggression, therefore, should not be regarded as a legal barrier preventing China from joining the ICC. Nevertheless, the crime of aggression is by no means the sole factor that has affected China's engagement with the ICC. There were some other concerns articulated previously by the Chinese authorities, including the complementarity regime of the Rome Statute, the proprio motu power of the Prosecutor, and the definitions of other core crimes. Compared to these issues, where there is no realistic prospect of starting the negotiations all over again, the crime of aggression deserves special attention because of the ongoing nature of the discussion following on from the Rome conference and its practical ramifications for China. It should be pointed out, however, that some of the other issues of concern to China have been, more or less, addressed through the subsequent developments of the substantive law and practice surrounding the ICC Statute. For example, back in 1998, there was still a lack of clarity as to precisely how aspects of the complementarity principle would apply in practice. As the Statute leaves interpretative leeway for the ICC in determining the parameters of the concept, the practice of the relevant organs of the Court is enormously important in fleshing out the principle.Footnote 165 All the post-Rome developments, including the Kampala Amendment on aggression, suggest, in combination, that there is both an obvious need and an opportunity for the Chinese authorities to reassess their objections towards the ICC which were formulated some fifteen to twenty years ago. If the current China-ICC relationship advances to the point of a Chinese re-evaluation of its concerns regarding the Rome Statute, the crime of aggression should no longer be considered as an obstacle in the way of China's full participation in the ICC from the a legal perspective.

Equally, from a policy perspective, the crime of aggression does not create any insurmountable obstacle for China to join the ICC either. Even though the Kampala Amendment does not echo China's policy preference for an exclusive filter role for the Security Council, the opt-out mechanism should serve as a sufficient safeguard for the Chinese policy-makers. In fact, the decisions taken at the Kampala Conference seem to signify the international community's continued expectation that the ICC will grow as an important tool in encouraging the peaceful settlement of disputes and in discouraging military and other leaders from engaging in unlawful military activities. By joining the ICC, China would be able to show its neighbours and the world its peaceful intentions. That in turn would facilitate the peaceful settlement of the territorial disputes that China has been embroiled in.

Footnotes

*

PhD, School of Law, University of Edinburgh, LL.M. (Xiamen University), LL.B. (Jilin University). The author would like to thank Professor Bill Gilmore, Professor Alan Boyle, Professor Robert Cryer, Dr James Harrison, and the anonymous reviewers of the Asian Journal of International Law for their comments on earlier drafts of this paper.

1. Bingbing, JIA, “China and the International Criminal Court: Current Situation” (2006) 10 Singapore Year Book of International Law 87 at 88.

2. Statement by LI Yanduan (China), Official Records of the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, Vol. II, UN Doc. A/CONF.183/C.1/SR.7, 19 June 1998, para. 9 [Rome Conference Official Records]; see also Statement by LIU Daqun (China), Rome Conference Official Records, UN Doc. A/CONF.183/C.1/SR.25, 8 July 1998, para. 34. According to Liu, “his delegation considered that, if agreement could be reached on the definition and on the role of the Security Council in that context, the crime of aggression should be included in the Court's jurisdiction”.

3. Rome Statute of the International Criminal Court, 17 July 1998, 2187 U.N.T.S. 90, 37 I.L.M. 999 (entered into force 1 July 2002), art. 5(2) [Rome Statute].

4. Statement by WANG Guangya (China) on the Statute of the International Criminal Court, Legal Daily, 29 July 1998:

(1) The jurisdiction of the ICC is not based on the principle of voluntary acceptance; the Rome Statute imposes obligations on non-States Parties without their consent, which violates the principle of state sovereignty and the Vienna Convention on the Law of Treaties. Furthermore, the complementary jurisdiction principle gives the ICC the power to judge whether a state is able or willing to conduct proper trials of its own nationals. As a result, the Court becomes a supra-national organ. (2) War crimes committed in internal armed conflicts fall under the jurisdiction of the ICC. Further, the definition of “war crimes” goes beyond that accepted under customary international law and Additional Protocol 2 to the Geneva Conventions. (3) Contrary to the existing norms of customary international law, the definition of “crimes against humanity” does not require that the state in which they are committed be “at war”. Furthermore, many actions listed under that heading belong to the area of human rights law rather than international criminal law; this deviates from the real aim of establishing the ICC. (4) The inclusion of the crime of aggression within the jurisdiction of the ICC weakens the power of the UN Security Council. (5) The proprio motu power of the Prosecutor under Article 15 of the Rome Statute may make it difficult for the ICC to concentrate on dealing with the most serious crimes, and may make the Court open to political influence so that it cannot act in a manner that is independent and fair.

See also Jianping, LU and Zhixiang, WANG, “China's Attitude towards the ICC” (2005) 3 Journal of International Criminal Justice 608 at 611−612.

5. Statement by QU Wensheng (China), Sixth Comm., 9th mtg, UN GAOR, 53th Sess., UN Doc. A/C.6/53/SR.9, 4 November 1998, para. 38. According to Qu:

The crime of aggression was dealt with in the Statute in a highly ambiguous manner. His delegation had no objections to the crime of aggression being included within the Court's jurisdiction provided that a proper definition of the crime could be arrived at. As such a definition had not yet been agreed on, the inclusion of the crime in the Statute would not only render the Court incapable of exercising its jurisdiction over such crimes, but would further complicate the definition of aggression. Such a move was deeply regrettable.

6. BENZING, Markus, “US Bilateral Non-Surrender Agreements and Article 98 of the Statute of the International Criminal Court: An Exercise in the Law of Treaties” (2004) 8 Max Planck Yearbook of United Nations Law 181 at 187.

7. Statement by XU Hong (China), at the General Debate of the Eighth Session of the Assembly of States Parties to the Rome Statute of International Criminal Court (20 November 2009), online: Coalition for the International Criminal Court <http://www.iccnow.org/documents/ICC-ASP-ASP8-GenDeba-China-ENG.pdf>, para. 2: “We have sent observer delegations to all the Assemblies of States Parties and most of the informal consultations, and engaged in discussions of the relevant issues in a responsible attitude.”

8. Delegations to the Review Conference of the Rome Statute of the International Criminal Court, RC/INF.1 (29 August 2010), online: ICC <http://www.icc-cpi.int/iccdocs/asp_docs/RC2010/RC-INF.1-reissued-ENG-FRA-SPA.pdf> at 43.

9. GAJA, Giorgio, “The Respective Roles of the ICC and the Security Council in Determining the Existence of an Aggression” in Mauro POLITI and Guiseppe NESI, eds., The International Criminal Court and the Crime of Aggression (Aldershot: Ashgate, 2004), 119 at 121.

10. GARGIULO, Pietro, “The Controversial Relationship Between the International Criminal Court and the Security Council” in Flavia LATTANZI and William A. SCHABAS, eds., Essays on the Rome Statute of the International Criminal Court, Vol. I (Ripa Fagnano Alto: Editrice il Sirente, 1999), 67 at 93.

11. For potential armed conflicts in the South China Sea, see GLASER, Bonnie S., “Armed Clash in the South China Sea” (April 2012), online: Council on Foreign Relations <http://www.cfr.org/world/armed-clash-south-china-sea/p27883>; for possible armed conflicts in the East China Sea, see SMITH, Sheila A., “A Sino-Japanese Clash in the East China Sea” (April 2013), online: Council on Foreign Relations <http://www.cfr.org/japan/sino-japanese-clash-east-china-sea/p30504>.

12. See PEDROZO, Raul, “Preserving Navigational Rights and Freedoms: The Right to Conduct Military Activities in China's Exclusive Economic Zone” (2010) 9 Chinese Journal of International Law 9 at 12.

13. This can be seen from the 2009 USNS Impeccable incident between China and the US that occurred in the South China Sea; see PEDROZO, Raul, “Close Encounters at Sea: The USNS Impeccable Incident” (2009) 62 Naval War College Review 101.

14. Draft Statute for an International Criminal Court, in Report of the International Law Commission on the Work of Its Forty-sixth Session, UN GAOR, 49th Sess., Supp. No. 10, UN Doc. A/49/10 (1994), art. 23(2).

15. Report of the Ad Hoc Committee on the Establishment of an International Criminal Court, UN GAOR, 50th Sess., Supp. No. 22, UN Doc. A/50/22 (1995), paras. 71 and 122.

16. Report of the Preparatory Committee on the Establishment of an International Criminal Court, UN GAOR, 51st Sess., Supp. No. 22, UN Doc. A/51/22 (1996), paras. 137−8.

17. YEE, Lionel, “The International Criminal Court and the Security Council: Article 13 (b) and 16” in Roy S. LEE, ed., The International Criminal Court: The Making of the Rome Statute, Issues, Negotiations, Results (The Hague: Kluwer Law International, 1999), 143 at 144.

18. Herman von HEBEL and Darryl ROBINSON, “Crimes Within the Jurisdiction of the Court” in Lee, ibid., 79 at 82.

19. Statement by DUAN Jielong (China), 6th Comm., 11th mtg., UN GAOR, 52th Sess., UN Doc. A/C.6/52/SR.11, 4 November 1997, para. 97.

20. Hebel, and Robinson, , supra note 18 at 84.

21. Statement by WANG Guangya (China), Rome Conference Official Records, supra note 2, UN Doc. A/CONF.183/SR.3, 16 June 1998, para. 35.

22. Statement by Li Yanduan, supra note 2, para. 9.

23. Statement by David SCHEFFER (US), Rome Conference Official Records, supra note 2, UN Doc. A/CONF. 183/SR.9, 17 July 1998, para. 29. According to Scheffer:

It must be taken into account that not all acts of aggression entailed individual criminal responsibility, and any definition must clearly state what acts, under what circumstances, constituted crimes. Such a definition must also clearly refer to the Security Council's exclusive role under the Charter to determine that aggression had taken place, as a pre-condition to the exercise of the judicial authority of the Court.

24. Statement by LI Ting (China), Rome Conference Official Records, supra note 2, UN Doc. A/CONF.183/C.1/SR.10, 22 June 1998, para. 84.

25. Statement by Guangya, Wang, supra note 4.

26. Final Act of the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, UN Doc. A/CONF.183/10, 17 July 1998, Resolution F, 8−9.

27. TRAHAN, Jennifer, “Defining Aggression: Why the Preparatory Commission for the ICC has Faced such a Conundrum” (2002) 24 Loyola of Los Angeles International and Comparative Law Review 439 at 459−467.

28. Proceedings of the Preparatory Commission at its Sixth Session (27 November−8 December 2000), UN Doc. PCNICC/2000/L.4/Rev.1, 14 December 2000, option 1, variation 1, at 15.

29. Ibid., option 1, variation 2.

30. Statement by Chinese delegate at the Sixth Session of the Preparatory Commission (2000), online: Permanent Mission of China to the UN Office at Geneva <http://www.china-un.ch/eng/gjhyfy/hflygz/t85684.htm>.

31. Ibid.

32. Proposal submitted by Bosnia and Herzegovina, New Zealand, and Romania, UN Doc. PCNICC/2001/WGCA/DP.2/Add.1, 27 August 2001, at 2.

33. Statement by QI Dahai (China), 6th Comm., 25th mtg., UN GAOR, 56th Sess., UN Doc. A/C.6/56/SR.25, 23 November 2001, para. 58.

34. Continuity of Work in respect of the Crime of Aggression, Resolution ICC-ASP/I/Res.1, 9 September 2002.

35. ZIMMERMANN, Andreas, “Article 5” in Otto TRIFFTERER, ed., Commentary on the Rome Statute of the International Criminal Court: Observers’ Notes, Article by Article, 2nd ed. (Baden-Baden: Nomos; Oxford: Hart Publishing, 2008), 129 at 138.

36. Discussion Paper proposed by the Chairman, ICC-ASP/5/SWGCA/2(2007), art. 5.

37. Statement by WANG Zonglai (China), at the 5th Session of the ASP (28 January 2007), online: Permanent Mission of China to the UN <http://www.china-un.org/chn/zgylhg/flyty/gjft/t348867.htm>.

38. Ibid.

39. Report of the Special Working Group on the Crime of Aggression, ICC-ASP/7/SWGCA/2(2009).

40. CLARK, Roger S., “Amendments to the Rome Statute of the International Criminal Court Considered at the first Review Conference on the Court, Kampala, 31 May–11 June 2010” (2010) 2 Goettingen Journal of International Law 689 at 701.

41. BLOKKER, Niels M. and KREß, Claus, “A Consensus Agreement on the Crime of Aggression: Impressions from Kampala” (2010) 23 Leiden Journal of International Law 867 at 893.

42. Clark, , supra note 40 at 699.

43. Blokker, and Kreß, , supra note 41 at 890.

44. Amendments to the Rome Statute of the International Criminal Court on the Crime of Aggression, Resolution RC/Res. 6, 11 June 2010, annex I, art. 15bis(8).

45. Blokker, and Kreß, , supra note 41 at 894.

46. “Amendments to the Rome Statute of the International Criminal Court adopted by the Assembly of States Parties” Xinhua (12 June 2010), online: Xinhua <http://news.xinhuanet.com/world/2010-06/12/c_12214419_2.htm >.

47. For a thorough study, see STEIN, Mark S., “The Security Council, The International Criminal Court, and the Crime of Aggression: How Exclusive is the Security Council's Power to Determine Aggression?” (2005) 16 Indiana International & Comparative Law Review 1 at 5; BLOKKER, Niels M., “The Crime of Aggression and the United Nations Security Council” (2007) 20 Leiden Journal of International Law 867−894.

48. Charter of the United Nations, 1 U.N.T.S. XVI, 24 October 1945, art. 39: “The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggression … .”

49. Ibid., art. 24(1).

50. Ibid., art. 12(1).

51. GOODRICH, Leland M. and HAMBRO, Edvard, Charter of the United Nations: Commentary and Documents, 2nd ed. (London: Stevens & Sons Limited, 1949) at 204.

52. Uniting for Peace, GA Res. 377A (V), UN GAOR, 1950, UN Doc. A/RES/5/377, at 10, para. 1.

53. See STEIN, Eric and MORRISSEY, Richard C., “Uniting for Peace Resolution” (1983) 5 Encyclopaedia of Public International Law 379 at 380.

54. MCDOUGALL, Carrie, “When Law and Reality Clash-the Imperative of Compromise in the Context of the Amendment Evil of the Whole: Conditions for the Exercise of the International Criminal Court's Jurisdiction over the Crime of Aggression” (2007) 7 International Criminal Law Review 277 at 290.

55. Intervention of the Central People's Government of the People's Republic of China in Korea, GA Res. 498, UN GAOR, 1951, UN Doc. A/RES/5/498(V).

56. For a detailed elaboration of the cases in which the “Uniting for Peace Resolution” was invoked, see REICHER, Harry, “The Uniting for Peace Resolution on the Thirtieth Anniversary of Its Passage” (1981) 20 Columbia Journal of Transnational Law 1.

57. International Peace and Security, SC Res. 462, UN SCOR, 1980, UN Doc. S/RES/462.

58. Ibid., preamble.

59. Reicher, , supra note 56 at 4.

60. GA Res.498 (V)(1951); Res.1899 (XVIII)(1963), UN Doc. A/RES/1899(XVIII); Res.2508 (XXIV)1969, UN Doc. A/RES/2508(XXIV); Res.36/172 A(1981), UN Doc. A/RES/36/172A; Res.2795 (XXVI) (1971), UN DOC. A/RES/2795(XXVI); Res.36/27 (1981), UN DOC. A/RES/36/27; Res.37/18 (1982), UN DOC. A/RES/37/18; Res.36/226 A (1981), UN DOC. A/RES/36/226A; Res.37/3 (1982), UN DOC. A/RES/37/3, Res.ES-9/I (1982); and Res.46/242 (1992), UN DOC. A/RES/46/242.

61. China voted in favour of GA Res.36/172A (1981), UN Doc. A/RES/36/172A; Res.36/27 (1981), UN Doc. A/RES/36/27; Res.36/226A (1981), UN Doc. A/RES/36/226A; Res. 37/18 (1982), UN Doc. A/RES/37/18; Res.37/3 (1982), UN Doc A/RES/37/3, and Res.ES-9/1 (1982).

62. Certain Expenses of the United Nations, Advisory Opinion, [1962] I.C.J. Rep. 151 at 163. The Court also stated that “it is only the Security Council which can require enforcement by coercive action against an aggressor”. Therefore, according to the ICJ, what is exclusive to the Security Council is its power to impose binding enforcement measures under Chapter VII of the Charter.

63. Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. United States of America), Judgment of 26 November 1984, [1984] I.C.J. Rep. 392 at 434−5.

64. Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, [2004] I.C.J. Rep. 136 at 148.

65. Certain Expenses Advisory Opinion, supra note 62 at 163.

66. Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, [1971] I.C.J. Rep. 16 at 50.

67. See Wall Advisory Opinion, supra note 64 at 147; see also McDougall, supra note 54 at 291.

68. Stein, , supra note 47 at 18.

69. Nicaragua case, supra note 63, Judgment of 27 June 1986, [1986] I.C.J. Rep.14 at 69.

70. Armed Activities on the Territory of the Congo (Democratic Republic of Congo v. Uganda), [2005] I.C.J. Rep. 168 at 227.

71. Stein, , supra note 47 at 21.

72. Armed Activities case, supra note 70, Dissenting Opinion of Judge Elaraby, at 327; Dissenting Opinion of Judge Simma, at 334.

73. Blokker, , supra note 47 at 886.

74. BASSIOUNI, M. Cherif and FERENCA, Benjamin, “The Crime against Peace and Aggression: From its Origins to the ICC” in M. Cherif BASSIOUNI, ed., International Criminal Law, 3rd ed. (Leiden: Brill, 2008), Vol. I, 207 at 225.

75. Statement by LING Ch'ing (China), 6th Comm., 1442nd mtg., UN GAOR, 28th Sess., UN Doc. A/C.6/SR.1442 , 20 November 1973, para. 77.

76. See also Statement by AN Chih-Yuan (China), 6th Comm., 1475th mtg., UN GAOR, 29th Sess., UN Doc. A/C.6/1475, 14 October 1974, para.16.

77. Statement by Ling Ch'ing, supra note 75, para.77:

Distinguishing between the aggressor and the victim of aggression meant distinguishing, at the international level, between right and wrong. His delegation considered that when questions of that kind were discussed in the United Nations an analysis should be made on the basis of the objective facts by all the Member States, big or small, so as to arrive at a correct and truthful conclusion.

78. Statement by Zonglai, Wang, supra note 37.

79. BARRIGA, Stefan and GROVER, Leena, “A Historic Breakthrough on the Crime of Aggression” (2011) 105 American Journal of International Law 517 at 521.

80. Art. 2(4) of the UN Charter generally prohibits any nation from using force against another with two exceptions: when force is required in self-defence (art. 51) or when the Security Council authorizes the use of force to protect international peace and security (Chapter VII). See SHAW, Malcolm, International Law, 6th ed. (Cambridge: Cambridge University Press, 2008) at 1123−1124.

81. There has been ambiguity regarding art. 51 in relation to the use of force by states in self-defence before an armed attack has taken place, even though no consensus as to the use of terminology in this field has been reached. Examining post-Charter uses of pre-emptive force also illustrates that this is a decidedly grey area of the law. See GRAY, Christine, International Law and the Use of Force, 3rd ed. (Oxford: Oxford University Press, 2008) at 114; see also GREENWOOD, Christopher, “International Law and the Pre-emptive Use of Force: Afghanistan, Al-Qaida, and Iraq” (2003) 4 San Diego International Law Journal 7 at 9.

82. In recent years, humanitarian intervention has also stretched the boundaries of the lawful use of force, as NATO's use of force in Kosovo brought forth the question of humanitarian intervention as a justification for the use of force. However, the legal status of humanitarian intervention remains unsettled under international law. See SIMMA, Bruno, “NATO, the UN and the Use of Force: Legal Aspects” (1999) 10 European Journal of International Law 1 at 4; see also GOODMAN, Ryan, “Humanitarian Intervention and Pretexts for War” (2006) 100 American Journal of International Law 107.

83. Zimmermann, , supra note 35 at 135−136.

84. Definition of Aggression, GA Res.3314, UN GAOR, 1974, UN Doc No. A/RES/3314(XXIX), at 143, para. 4.

85. Bassiouni, and Ferenca, , supra note 74 at 227.

86. Zimmermann, , supra note 35 at 135−136.

87. Ibid, at 136.

88. Ibid, at 138−9.

89. Report of the Special Working Group on the Crime of Aggression, ICC-ASP/5/35(2007), para. 19 [SWGCA Report].

90. BARRIGA, Stefan, “Against the Odds: The Results of the Special Working Group on the Crime of Aggression” in Roberto BELLELLI, ed., International Criminal Justice: Law and Practice from the Rome Statute to Its Review (Farnham: Ashgate, 2010), 621 at 630.

91. Supra note 84, annex.

92. Ibid., art. 1.

93. Ibid., art. 3.

94. Ibid., art. 2.

95. Ibid., art. 4.

96. Discussion Paper proposed by the Chairman, ICC-ASP/5/SWGCA/2(2007), art. 2: “For the purpose of paragraph 2, act of aggression means an act referred to in [art. 1 and art. 3 of] United Nations General Assembly resolution 3314 (XXIX) of 14 December 1974” [Discussion Paper].

97. 2007 SWGCA Report, supra note 89, para. 20.

98. Ibid., para. 21.

99. Statement by Zonglai, Wang, supra note 37.

100. Ibid.

101. Ibid.

102. KREß, Claus, “Time for Decision: Some Thoughts on the Immediate Future of the Crime of Aggression: A Reply to Andreas Paulus” (2010) 20 European Journal of International Law 1129 at 1145.

103. 2007 SWGCA Report, supra note 89, para. 16.

104. Ibid., para. 17.

105. KREß, Claus and von HOLTZENDORFF, Leonie, “The Kampala Compromise on the Crime of Aggression” (2010) 8 Journal of International Criminal Justice (2010) 1179 at 1193.

106. 2007 Discussion Paper, supra note 96, art. 1.

107. Ibid.

108. 2007 SWGCA Report, supra note 89, para. 18.

109. Ibid., para. 16.

110. Statement by Qi Dahai, supra note 33, para. 56

111. Amendments to the Rome Statute, supra note 44, art. 8bis.

112. Remarks by Harold H. KOH, “The US and the International Criminal Court: Report From the Kampala Review Conference” (2010), online: American Society of International Law <http://www.asil.org/files/Transcript_ICC_Koh_Rapp_Bellinger.pdf > at 11, para. 5. According to Koh: “It was a mistake not to go to the Princeton process; it was a mistake not to make the changes that we knew we wanted to make or suggest them earlier; and we had to deal with that.”

113. Statement by Harold H. KOH , “Statement at the Review Conference of the International Criminal Court” (4 June 2010), online: US Department of State <http://www.state.gov/s/l/releases/remarks/142665.htm>: “Although we respect the considerable effort that has gone into the Princeton Process, we believe that without agreed-upon understandings, the current draft definition remains flawed.”

114. TRAHAN, Jennifer, “The Rome Statute's Amendment on the Crime of Aggression: Negotiations at the Kampala Review Conference” (2011) 11 International Criminal Law Review 49 at 73.

115. Supra note 84.

116. SCHABAS, William A., “Kampala Diary 9/6/10: The ICC Review Conference: Kampala 2010” (10 June 2010), online: The ICC Review Conference: Kampala 2010 <http://iccreviewconference.blogspot.com/2010/06/kampala-diary-9610.html>.

117. Understanding Regarding the Amendments to the Rome Statute of the International Criminal Court on the Crime of Aggression, in Resolution RC/Res. 6, 11 June 2010, annex III.

118. KIM, Samuel S., “The People's Republic of China and the Charter-Based International Legal Order” (1978) 72 American Journal of International Law 317 at 342.

119. Statement by HO Li-liang (China), 6th Comm. 1503rd mtg., UN GAOR, 29th Sess., UN Doc. A/C.6/29/SR.1503, 21 November 1974, para. 11.

120. Supra note 84, annex, art. 2.

121. Ibid, art. 4.

122. Statement by An Chih-Yuan, supra note 76, para. 16.

123. Ibid.

124. KIM, Samuel S., China, the United Nations, and World Order (Princeton: Princeton University Press, 1979) at 460.

125. Statement by Ch'ing, Ling, supra note 75, para. 77.

126. Statement by Dahai, Qi, supra note 33, para. 56.

127. Statement by An Chih-Yuan, supra note 76, para. 15.

128. Statement by Ch'ing, Ling, supra note 75, para. 75:

With regard to the question of aggression or the victim of aggression, his delegation maintained that any country which first used armed force to encroach upon the sovereignty, independence or territorial integrity of other countries had naturally committed a crime of aggression, that a crime of aggression should be subjected to severe international condemnation and sanctions and that peoples had the right to wage wars of national liberation and revolutionary wars of self-defence. It was absolutely impermissible to mention in the same breath wars of aggression and wars against aggression, which were different in nature.

129. Supra note 55. The General Assembly found that “China, by giving direct aid and assistance to those who were already committing aggression in Korea … has itself engaged in aggression in Korea”.

130. Statement by WU Hsiu-Chuan (China), UN SCOR, 527th mtg., UN Doc. S/PV. 527 (1950), 28 November 1950, at 21−2: “Under such circumstances the United States armed aggression against Korea cannot be regarded as a matter which concerns the Korean people alone … The United States aggression against Korea gravely endangers the security of the People's Republic of China.”

131. Ibid., at 4, 25.

The members of the Security Council will recall that on 24 August Foreign Minister Chou En-lai lodged a charge with the United Nations Security Council that the United States Government had committed armed aggression against China's territory, Taiwan; “In order to safeguard international peace and security and to uphold the sanctity of the United Nations Charter, the United Nations Security Council has the inalienable duty to apply sanctions against the United States Government for its criminal acts of armed aggression upon the territory of China, Taiwan, and its armed intervention in Korea.”

132. Draft Resolution Submitted by the Representative of the General People's Government of the People's Republic of China at the 527th Meeting of the Security Council held on 28 November 1950.

133. For example, 1962 China's boundary conflict with India; 1969 China's involvement in the Vietnam War against US aggression; 1969 Sino-Soviet border clashes; and 1979, China's “defensive counter-attack” against Vietnam; see MUSHKAT, Roda, “Is War Ever Justifiable? A Comparative Survey” (1987) 9 Loyola of Los Angeles International and Comparative Law Journal 227 at 289−290.

134. COHEN, Jerome A., “China and Intervention: Theory and Practice” (1973) 121 University of Pennsylvania Law Review 471 at 476.

135. Supra note 84, annex, art. 3(d).

136. Statement by An Chih-Yuan, supra note 76, para. 15.

137. Ibid.

138. Ibid.

139. Official Records of the Third UN Conference on the Law of the Sea, Vol. 17, Plenary mtg., UN Doc. A/CONF.62/WS/37 and Add. 1 and 2, at 243. While maritime powers maintained that the EEZ should have the traditional freedom of the high seas, coastal states argued for more rights and control over the zone. China failed to achieve its objective to broaden coastal state rights and include security interests as a costal state competency in the EEZ.

140. ROTHWELL, Donald R. and STEPHENS, Tim, The International Law of the Sea (Oxford: Hart Publishing, 2010) at 284.

141. Statement by Ch'ing, Ling, supra note 75, para. 76: “While intent was a subjective element, it was nevertheless manifested through concrete acts of aggression.”

142. Ibid. According to Ling Ch'ing:

Consequently, the objective acts must be taken as the basis for judging whether a certain action constituted aggression, including whether the State committing it had aggressive intent, and definitely not the other way round, i.e. the existence of an act of aggression could not be determined on the basis of whether it was committed with aggressive intent. History proved that no aggressors would ever admit that they had aggressive intent … If aggressive intent was to be made a criterion for judging aggression, that would inevitably play into the hands of the aggressor, who tried to justify their aggressive acts and to mislead the public by disclaiming any aggressive intent. Such a definition of aggression would obviously be incapable of protecting the interests of the victims of aggression.

143. The US, which holds different views from China on the issues of humanitarian intervention and self-defence, played a significant role in preserving these grey areas issues. According to a former US Legal Adviser:

If Article 8bis were to be adopted as a definition, understandings would need to make clear that those who undertake efforts to prevent war crimes, crimes against humanity or genocide—the very crimes that the Rome Statute is designed to deter—do not commit “manifest” violations of the U.N. Charter within the meaning of Article 8bis. Regardless of how states may view the legality of such efforts, those who plan them are not committing the “crime of aggression” and should not run the risk of prosecution. At the same time, in order for an investigation or prosecution to proceed, it must be shown that it was manifest that the action was not undertaken in self-defence, without the consent of the state in question, and without any authorization provided by the Security Council.

See US Department of State, “Statement at the Review Conference of the International Criminal Court” (4 June 2010), online: DoS <http://www.state.gov/s/l/releases/remarks/142665.htm>.

144. Sharon A. WILLIAMS and William A. SCHABAS, “Article 12” in Triffterer, supra note 35, 547 at 548.

145. KIRSCH, Philippe and HOLMES, John T., “The Rome Conference on an International Criminal Court: The Negotiating Process” (1999) 93 American Journal of International Law 2 at 3.

146. Under an “opt-in” system, ratification only signifies that a state becomes a party to the Statute, a separate declaration is required for a state to accept the ICC's jurisdiction over all crimes or only over certain crimes.

147. Statement by CHEN Shiqiu (China), Sixth Comm, 25th mtg, UN GAOR, 50th Sess, UN Doc A/C.6/50/SR.25, 30 October 1995, para. 70: “Acceptance of the court's jurisdiction would be based on the voluntary consent of the states parties and could not be mandatory”; see also Statement by LI Yanduan (China), Rome Conference Official Records, supra note 2, UN Doc A/CONF.183/C.1/SR.8, 19 June 1998, para. 37:

The opt-in system would allow many countries to become parties to the Statute and allow the Court to acquire universality in a very short period of time. After that, the countries concerned could gradually accept the jurisdiction of the Court. The fact that the Court enjoyed universal support would serve as a strong deterrent with regard to the core crimes. She therefore favoured the opt-in system.

148. SCHEFFER, David, “Letter to the Editors” (2001) 95 American Journal of International Law 624−625; LEIGN, Monroe, “The United States and the Statute of Rome” (2001) 95 American Journal of International Law 124 at 126.

149. Amendments to the Rome Statute, supra note 44, art. 15bis(4).

150. “Opt-out” means a state, by becoming party to the Court's Statute, would automatically confer jurisdiction to the Court over the crimes under the Statute, but the state would have the right to exclude some crimes from such jurisdiction.

151. Amendments to the Rome Statute, supra note 44, art. 15bis(5).

152. Statement by Qu Wensheng, supra note 5, para. 34:

Under article 121, paragraph 5, any amendment to articles 5 to 8 of the Statute would not have effect with respect to States parties that had not accepted the amendment … a non-party would not be able to invoke the same grounds to refuse the Court's jurisdiction over the crime in question.

153. Report of the Special Working Group on the Crime of Aggression, Doc. ICC-ASP/7/SWGCA/2 (2009), paras. 31−7.

154. Statement by Liu Daqun (China), Rome Conference Official Records, supra note 2, UN Doc. A/CONF.183/SR.9, 17 July 1998, para. 39:

The Prosecutor's right to conduct investigations or to prosecute proprio motu, without sufficient checks and balances against frivolous prosecution, was tantamount to the right to judge and rule on State conduct. The provision that the Pre-Trial Chamber must consent to the investigation by the Prosecutor was not an adequate restraining mechanism.

155. Amendments to the Rome Statute, supra note 44, art. 15bis(8).

156. SCHABAS, William A., An Introduction to the International Criminal Court, 4th ed. (Cambridge: Cambridge University Press, 2011) at 153.

157. It was argued that:

States should settle their disputes through negotiation and consultation … states were free to choose other means to settle their disputes. If a sovereign State were asked to accept unconditionally the compulsory jurisdiction of an international judicial organ, that would amount to placing that organ above the sovereign State, which was contrary to the principle of State sovereignty.

See Statement by LAI Ya-Li (China), The Third United Nations Conference on the Law of the Sea, Official Records, Vol. V (1976) at 27.

158. Declarations Made after Ratification, China (25 August 2006), online: UNCLOS <http://www.un.org/Depts/los/convention_agreements/convention_declarations.htm#China Upon ratification>.

159. ANDERSON, Kenneth, “The Rise of International Criminal Law, Intended and Unintended Consequence” (2009) 20 European Journal of International Law 331 at 355.

160. Hans-Peter KAUL, “Is it Possible to Prevent or Punish Future Aggressive War-Making?”, Forum for International Criminal and Humanitarian Law, Occasional Paper, 8 February 2011, at 10.

161. Schabas, , supra note 156 at 27.

162. Marja LEHTO, “The ICC and the Security Council: About the Argument of Politicization” in Politi and Nesi, supra note 9, 145 at 146.

163. According to David Kay:

There are three closely related behaviour patterns of politicization: first, considering and acting on matters that lie essentially outside the specific functional domain of a given specialized agency or program; secondly, the reaching of decisions on matters within an agency's or program's functional competence through a process that is essentially political and does not reflect technical and scientific factors in the decision process; and thirdly, the taking of specific actions on issues within an agency's or program's competence for the sole purpose of expressing a partisan political position rather than attempting to reach an objective determination of the issues.

See KAY, David, “The Function and Effectiveness of Selected United Nations System Programs” (1980) 18 American Society of International Law Studies in Transnational Legal Policy at 7.

164. Blokker, and Kreß, , supra note 41 at 895.

165. CRYER, Robert, “Darfur: Complementarity as the Drafters Intended?” in Carsten STAHN and Mohamed M. El ZEIDY, eds., The International Criminal Court and Complementarity: From Theory to Practice (Cambridge: Cambridge University Press, 2011), 1097 at 1098.

* PhD, School of Law, University of Edinburgh, LL.M. (Xiamen University), LL.B. (Jilin University). The author would like to thank Professor Bill Gilmore, Professor Alan Boyle, Professor Robert Cryer, Dr James Harrison, and the anonymous reviewers of the Asian Journal of International Law for their comments on earlier drafts of this paper.