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The ICC and China: The Principle of Complementarity and the National Implementation of International Criminal Law

Chenguang Zhao (China)

Ph.D. Project

For a long time, a disconnection has existed between international and domestic justice. The relationship between international and domestic justice was treated as two autonomous systems, like yin and yang in Chinese. With the advent of the International Criminal Court (the ICC) which came into being on 1 July 2002 with the ratification of its founding treaty by 60 states, the two systems work increasingly in tandem. The principle of complementarity is one of the corner stones of the architecture of the ICC. It is an approach of “encouragement and punishment,” as expressed in the Chinese saying by Xian Li Hou Bing “courtesy first and penalty second.” Under the principle of complementarity, states have primary jurisdiction over the ICC. So long as the legal system of a state can efficiently investigate and prosecute the core international crimes prohibited in the Rome Statute, the ICC will not intervene. But if a state is unwilling or unable to investigate and prosecute these crimes, the ICC will invoke the principle of complementarity to step in. Therefore, the principle of complementarity has an impact on the national implementation of international criminal law, as well as on its exercise of jurisdiction in many aspects, including for third party states. Although China was actively involved in the Rome Conference, the Chinese delegation ultimately cast a negative vote. As a third party to the ICC that has neither signed nor ratified the Rome Statute, this does not mean that China can dissociate itself from the influences of the ICC or shirk responsibility for the suppression of core international crimes. Precisely the opposite is the case. Being a third party state to the ICC, China has ratified the genocide, torture and other international conventions and is obliged to prosecute these international crimes by implementing these international conventions into national law. However, the core crimes have thus far not been incorporated into Chinese criminal law. Questions arise as to whether China is willing and able to prosecute core crimes and if so, on what legal basis.

This research work will focus on the possible impact of the principle of complementarity on the implementation of international criminal law in China as a third party state and the prospect of the relationship between China and the ICC based on this analysis. The extremely broad research program can be split into several core issues and central questions: How does complementarity operate? How does complementarity affect the identity of the ICC, and its role with respect to domestic jurisdictions? Why does the principle of complementarity matter for China? What is the status of national legislation and the prosecution of international core crimes in China and what are the causes of the current insufficiency? To what extent does the principle of complementarity have a catalytic effect on the domestic implementation of international criminal law in China and what reforms should be carried out? How can China take advantage of the principle of complementarity to protect its sovereignty and what future prospects exist for the relationship between China and the ICC?

The subject of this study is about the national legislation and punishment of core international crimes in China against the backdrop of the impact of the ICC. The philosophy of retaliation, mediation, and punishment constitutes the theoretical basis for the whole work which corresponds closely with the research agenda of the International Max Planck Research School on Retaliation, Mediation, and Punishment. Research methods consist of an analysis of relevant norms, international conventions, national and international jurisprudence, written media sources as well as a literature review.

Research Interests and Goals

International Criminal Court, Crime of Aggression, Principle of Complementarity, Environmental Criminal Law

Curriculum vitae

Since July 2009 PhD Candidate of the International Max Planck Research School on Retaliation, Mediation and Punishment (IMPRS REMEP) at the Max Planck Institute for Foreign and International Criminal Law in Freiburg i. Br., Germany
September 2005 -
July 2008 		Master of Laws, College for Criminal Law Science, Beijing Normal University, Beijing, China

Thesis: Study on the Principle of Invalidity of Resort to Superior Orders in International Criminal Law: Through the Case of Prosecutor V. Drazen Erdemovic
September 2001 -
July 2005 		Bachelor of Laws, Department of Law, Beijing Normal University, Beijing, China