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Statement by Professor LING Yan

I am very happy to attend the launch of ‘Historical Origins of International Criminal Law’ (‘HOICL’) Volumes 3 and 4. HOICL Volumes 1 and 2 were launched last year around the same time, during the Session of the ICC Assembly of States Parties in New York. Here we are, one year later, with two more volumes – the editorial team is highly efficient in their work. These four volumes contain the results of seminars co-organized by various institutions and universities worldwide and the Centre for International Law Research and Policy (and its Forum for International Criminal and Humanitarian Law (‘FICHL’)), founded by Professor Morten Bergsmo. We know that Professor Bergsmo is Norwegian, he came to China from far away and ploughs in the seemingly ‘barren’ field of ICL here. He endeavours to promote ICL research in China and is favourably called ‘Dr. Norman Bethune of ICL’.

Unlike past seminars which only resulted in one anthology, the HOICL project is more voluminous. In March and November 2014, two seminars were held respectively in Hong Kong and New Delhi. Participants included domestic and international judges, prosecutors, staff of international organizations, professors and university students, among them students from Peking University and China University of Political Science and Law. They explored the historical origins of ICL, examined the investigation and trial of international crimes and studied the theory of international crimes and modes of liability in different times from different perspectives.

Four volumes were published instead of three as planned earlier. Volumes 1 and 2 include papers from the Hong Kong seminar. They focus on ICL theory developed through international agreements and prosecution of war crimes between the seventeenth century and World War II. The second volume analyses the legacy of Nuremberg and Tokyo trials and domestic trials of Nazi and Japanese war criminals by Asian and Western countries. The post-World War II trials of most war criminals were conducted by the Allies in domestic courts, many of which we had never heard of. In September 2015, on the occasion of seventieth anniversary of the World’s Victory of Anti-Fascist War, the People’s Court Daily consulted me on the trial of Japanese war criminals by Asian countries. I recommended the HOICL volumes to them.

Volumes 3 and 4 include papers from the New Delhi seminar. Part 1 of Volume 3 further expands the study of ICL’s historical origins, covering laws on war and war crimes in ancient India and Greece and trial of crimes committed during civil wars. For instance, there is a chapter about the trial of the King of England in the seventeenth century. The indictment included not only the unlawful killing and pillaging during war, but also that the King waged war in order to carry out his dictatorship. This reminds me of the Paris Pact (General Treaty for Renunciation of War as an Instrument of National Policy) which prohibits States to use war as a tool to advance their policy. The right wing in Japan often claims the prosecution of Japanese war criminals on the crime against peace violates the principle of nullum crimen sine lege, but the sources of international law include not only express agreement among States, but also international customs and general principles of law. Studying the history of domestic trials may give evidence of a general principle of law criminalising the use of war to advance policy.

There is also a chapter about the trial of Chinese officials by a commission set up by European countries during the Boxer riot. The Commission ruled that the local Baoding government supported the Boxer riot and failed to protect the missionaries and their families. There is a trace of what we have today as command responsibility in that case. To my surprise, the judgment sentenced the Chinese official to death and ordered important local buildings and temples to be destroyed.

Volume 3 also covers the origins and evolution of core international crimes (war crimes, genocide and crimes against humanity) as well as criminal responsibility, including complicity, conspiracy and command responsibility.

Volume 4 focuses on the recent development of ICL, which the Nuremberg and Tokyo legacies continue to influence. The practice of the ICTY and ICTR has made vital contributions on important issues such as the definition of core international crimes and modes of international criminal responsibility. Chapters also cover domestic trials of serious violations of human rights including in Argentina and Bangladesh.

Some chapters raise issues in the operation of the International Criminal Court which deserve attention. For example, the success of the Court depends on the political will of the UN Security Council and sufficient co-operation from States. Emphasis is placed on the principle of complementarity in the exercise of jurisdiction by the ICC: as only a few individuals can be prosecuted at the international level, the prosecution of most international crimes needs to be conducted domestically.

Universal participation in the ICC is essential to ending impunity for the perpetrators of the most heinous crimes and preventing future crimes. However, about one third of States are still outside the ICC mechanism. Asia has the least countries participating in the Court. To better understand their main concerns, there is a chapter on Asian and African States’ attitudes towards the ICC.

Volume 4 also covers the contribution of other institutions to international criminal law and justice. For example, truth commissions made an important contribution to the establishment of the ICTY and ICTR. The co-operation between INTERPOL and international judicial bodies is also discussed in detail. States eventually started using INTERPOL’s services in combating serious international crimes. Also, victim participation in proceedings before the ICC helps the Court in fact-finding and also the victims to realize justice. Also discussed is methodology in international criminal justice, for example the introduction of demography to prove international crimes.

These are just some of the chapters in these extremely informative and intriguing volumes. For those interested in ICL, who want to study its history and evolution comprehensively, these four volumes serve as a timely and rich source. They are also useful for teaching ICL and the preparation of relevant moot court competitions.

In addition to these four HOICL volumes, the Centre for International Law Research and Policy (and its department FICHL) has published a number of books in this area, the e-book versions of which can all be freely downloaded from its website. I hope by reading these books, Chinese academics and practitioners will improve their knowledge and understanding of international criminal and humanitarian law, and thus be in a better position to advise our government in these areas. I hope you will follow and participate in future FICHL academic activities, so as to increase the voice of Chinese scholars in international fora.

Finally, I express my congratulations on the publication of HOICL Volumes 3 and 4. Special thanks go to Professor Morten Bergsmo, Ms. SONG Tianying (Legal Adviser of ICRC Regional Delegation for East Asia), and Professor YI Ping of Peking University (all present here), and other members of the editorial team, for their hard work in editing these books. Their investment and contributions make the two books pierce the smog today and shine before us.

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