China actively participated in the preparatory work and finally voted against it. According to the explanation given by the delegation of China after the voting, the reasons can be summarized as follows: (65,438+0) China cannot accept the universal jurisdiction of the International Criminal Court as stipulated in the Rome Statute. (2) China has serious reservations about the inclusion of war crimes in internal armed conflicts in the universal jurisdiction of the Court. (3) The delegation of China has reservations about the provisions on the role of the Security Council in the Statute. (4) The delegation of China has serious reservations about the prosecutor's right to investigate proprio motu. (5) The delegation of China has reservations about the definition of "crimes against humanity". Generally speaking, the reasons for China's failure to join the International Criminal Court are concentrated in three aspects: universal jurisdiction, the prosecutor's initiative to investigate, and the dispute over charges.
1. Universal jurisdiction. According to the second paragraph of Article 12 of the Rome Statute, the International Criminal Court can exercise jurisdiction over the following situations in the contracting States and non-contracting States that accept the jurisdiction of the International Criminal Court: "(1) The country in whose territory the relevant act took place; If the crime is committed on a ship or aircraft, the country of registration of the ship or aircraft; (2) the country of nationality of the defendant ". This jurisdiction provision enables the International Criminal Court to exercise jurisdiction over non-state parties involved in the case. For example, when a citizen of a non-contracting state commits an international crime in the territory of a contracting state or a citizen of a contracting state commits an international crime in a non-contracting state, the International Criminal Court also has jurisdiction. The delegation of China believes that this provision of universal jurisdiction violates the rule of "relative validity of treaties" recognized in Article 34 of the Vienna Convention on the Law of Treaties, which is very unfair to non-parties and will impact the independence of judicial sovereignty of non-parties.
2. The right of prosecutors to investigate on their own initiative. Article 13 of the Rome Statute stipulates: "The court may exercise jurisdiction over the crimes mentioned in Article 5 in accordance with the provisions of this Statute under the following circumstances: (1) The State Party submits the occurrence of one or more crimes to the public prosecutor in accordance with the provisions of Article 14; (2) The Security Council, acting under Chapter VII of the Charter of the United Nations, refers the situation of one or more crimes to the Prosecutor; (3) The prosecutor starts to investigate the crime according to Article 15. " Article 15 details the contents of the prosecutor's own investigation. China has "serious reservations" about this, believing that it gives prosecutors too much power and may make the International Court of Justice a tool for big countries to interfere in other countries' internal affairs.
These allegations are controversial. Another important reason why China does not join the International Criminal Court is that it has different opinions on the specific crimes stipulated in the Rome Statute, which are reflected in war crimes, crimes of aggression and crimes against humanity. The author believes that in this respect, China's opposition is more due to political factors. Regarding the former, the issue of bringing non-State armed conflicts into the scope of war crimes has a long history. Many countries disapprove of this expansion of application scope, and the most direct impact on China is the issue of Taiwan Province Province. Article 8 of China's Anti-Secession Law clearly stipulates that the "Taiwan independence" separatist forces cause Taiwan Province Province to secede from China in any name or in any way, or a major incident that will cause Taiwan Province Province to secede from China occurs, or the possibility of peaceful reunification is completely lost. The state can take non-peaceful means and other necessary measures to safeguard national sovereignty and territorial integrity. "Once Chinese mainland is determined to achieve national reunification by force, the International Criminal Court is likely to be used by anti-China forces to examine China's Taiwan Province Strait. Another example is the definition of crimes against humanity. There are many human rights factors in the description of the objective behavior of this crime in Rome Statute, and the ideological differences between Chinese and Western countries are well known. Therefore, the delegation of China believes that what the international community wants to establish is not a human rights court, but a criminal court to punish serious and heinous international crimes. However, the human rights content added in the Rome Statute is not consistent with the duties of the International Criminal Court.