Sovereignty and Individual Criminal Responsibility for Core International Crimes

The objective of the 2012 LI Haopei Seminar and Lecture was to address the broadly formulated theme 'Sovereignty and Individual Criminal Responsibility for Core International Crimes' from different academic perspectives, in particular that of Chinese international lawyers. Many members of today's international criminal justice movement seem to assume that State sovereignty takes a decisive second place to the principle and practice of individual criminal responsibility for core international crimes. It is correct to note that two of the existing ad hoc international(ized) criminal jurisdictions (the ICTY and ICTY) enjoy a legal basis that rests on Chapter VII of the UN Charter. Their judges can and have issued binding orders to States. And when conducting statutory investigations on the territory of States, the prosecution services of these Tribunals have not sought permission as such from the States concerned. This particular and significant feature of contemporary international criminal justice has empowered Tribunal investigators and prosecutors, and perhaps emboldened some of them, as well as other members of the international criminal justice lobby in their calls for individual accountability for core international crimes at the international or national level.

But all the ad hoc jurisdictions – the two Tribunals included – will cease to exist as active criminal jurisdictions within a few years. The only permanent international criminal jurisdiction – the International Criminal Court (ICC) –cannot base its orders and decisions in the same manner on Chapter VII of the UN Charter. The implementation of its work depends entirely on States, both de facto and de jure. Add to that the fact that three permanent members of the UN Security Council – China, Russia and the United States – are among a number of powerful States that are not members of the ICC system. Whereas the Security Council established the ICTY and ICTR in execution of its own UN Charter powers, the ICC can only occasionally rely on the Council, and even then not to the same extent.

Against this general background, the 2012 LI Haopei Lecture and Seminar were designed to consider the tension between sovereignty and individual criminal responsibility for core international crimes along three specific tracks. First, when evidence of core international crimes incriminates State officials and there are calls for criminal investigation, State immunity concerns will continue to be voiced. The immunity of State officials from criminal jurisdiction for core international crimes should therefore be considered in some detail. Secondly, the closing down of the ad hoc international criminal jurisdictions is likely to shift more attention to the exercise of national criminal jurisdiction over core international crimes, which would include jurisdictional exercise by States not directly affected by the said crimes. This raises issues linked to the scope of universal jurisdiction for such crimes. Thirdly, the amendments of the ICC Statute at the 2010 Review Conference with regard to the crime of aggression may at one stage enable the ICC to investigate and prosecute such crimes. How could this affect non-States Parties and States Parties that do not agree with these amendments? Could the activation of these aggression amendments and the ICC's work exacerbate tensions between the interests of State sovereignty and accountability?

Papers prepared for the Seminar will be published in Chinese and English in the FICHL Publication Series.