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Statement by Judge LIU Daqun at TOAEP book launch

The Hague, 19 November 2012

Your Excellences, Ambassadors and Honorable Judges, Ladies and Gentlemen, it is my great honor and pleasure to launch the new publication of the Forum for International Criminal and Humanitarian Law, entitled “State Sovereignty and International Criminal Law”. The articles published in this collection are the result of the LI Haopei Seminar and Lecture Series, which was created to honor the international service and contribution of the late Judge LI Haopei, a distinguished Chinese judge and a leading authority on international law. I had the privilege to work with him beginning more than 30 years ago, when I joined the Treaty and Law Department of China’s Ministry of Foreign Affairs. Later, I was honored to take oover his position as a judge of the Appeals Chamber of the International Criminal Tribunals for the former Yugoslavia and for Rwanda. In addition to being an extremely wise and perceptive judge, Judge LI was a kind and gentle person, respected by his colleagues for his enlightening views and admired for his strong belief in the cause of justice. He was also a scholar with an unparalleled knowledge of international law, and his contribution to international criminal law and to the work of the Tribunal has been invaluable.

Both the LI Haopei Seminar and Lecture series and this publication owe a great deal to another distinguished scholar, Professor Morten Bergsmo. In addition to his extensive experience as a researcher, consultant, and adviser on matters of international law and policy, he has worked in the Office of the Prosecutor in both the ICTY and the International Criminal Court. Professor Bergsmo is currently a Visiting Professor at the most prestigious university in China, Peking University, and in this capacity he is also a bridge between scholars in China and the outside world. He is a leading academic in the fields of international criminal law and international humanitarian law, and has worked tirelessly to promote dialogue between the ICC and non-States Parties to the Rome Statute. Without his dedication and effort, this book on “State Sovereignty and International Criminal Law” would not have been possible.

This publication is also remarkable for the diversity of its contributors. It boasts articles from government lawyers, international judges, and law professors in a variety of fields, among others. It addresses issues that are both timely and highly relevant, such as head of state immunity, universal jurisdiction, and the crime of aggression. How these topics are discussed, debated, and ultimately decided by both domestic and international jurisdictions will impact international law and foreign policy for generations to come.

One such pressing issue is that of head of state immunity. Although sovereign immunity is well established under international law, domestic and international prosecution of international criminals raises difficult questions about the relationship between sovereignty and accountability for atrocity crimes. Further complicating matters, the jurisprudence relating to international criminal law and immunity has been described as “perplexing, contradictory, confused or incoherent”

(R. Cryeret al., An Introduction to International Criminal Law and Procedure, p. 532, second edition 2010, with references to van Alebeek and Barker). As a result, engagement with the difficult questions surrounding sovereignty and international criminal law is of the utmost importance for national criminal courts, international tribunals, and, increasingly, even non-States Parties to the ICC.

With respect to national criminal courts, the International Court of Justice has made it clear that customary international law provides for absolute immunity for incumbent heads of state before foreign courts, even where they are accused of international crimes (see Arrest Warrant case, 2002 I.C.J. 3, at 58). Only where the country in question waives the immunity of its sitting head of state can that head of state be prosecuted before the domestic courts of a foreign nation.

In contrast, whether heads of state have immunity for international crimes before international tribunals is now a hotly debated topic in both academic and judicial circles, raising questions about the difference between States Parties and non-States Parties to the Rome Statute, international judicial cooperation, and the role of the Security Council of the United Nations.

Both the ICTY and the ICTR, which were created by the United Nations Security Council, provide in their Statutes that “the official position of any accused person, whether as Head of State or Government or as a responsible Government official, shall not relieve such person of criminal responsibility nor mitigate punishment” (articles 7(2) and 6(2) respectively). Moreover, the ICTY has held that these provisions were declaratory of customary international law (see Prosecutor v. Furundžija, Case No. IT-95-17/1-T, Judgment, at 140, 10 December 1998; and Prosecutor v. Milošević, Case No. IT-99-37-PT, Decision on Preliminary Motions, at 28, 8 November 2001).

Notably, the ICTY and the ICTR derive their authority from Chapter VII of the UN Charter. Their judges can and have issued binding orders to States. 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.

In contrast, the ICC cannot base its orders and decisions on Chapter VII of the UN Charter. The implementation of its work depends entirely on state cooperation. The position of States Parties to the ICC Statute is clear: by ratifying the Rome Statute, they have accepted all its provisions, including Article 27, which provides that heads of state of contracting parties are not immune from prosecution before the ICC.

However, non-States Parties are not bound by this provision, and so the most effective way for the ICC to have jurisdiction over the sitting head of state of a non State Party will be through a referral from the Security Council. In turn, such a referral will depend on the political will of the members of the Security Council.

Nevertheless, the complex relationship of non-States Parties—such as China, Russia, and the United States—to the ICC should not be taken to mean that they are not profoundly engaged with, and interested in, principles of international criminal law. Although China is not a party to the Rome Statute, it has followed the development of the International Criminal Court and its jurisprudence closely. China voted affirmatively in the Security Council to refer the situation in Libya to the ICC. China also took an active part in the dialogue concerning amendments to the ICC Statute and the adoption of the crime of aggression at the 2010 Review Conference in Kampala, Uganda. In fact, China has sent an observer delegation to the Assembly of States Parties every year. This year, China’s observer delegation is headed by Mr. MA Xinmin, one of the legal advisers of China’s Ministry of Foreign Affairs.

Chinese scholars and students are also following developments in international criminal law with a renewed interest. Courses on international criminal law and the ICC are now being taught in over 200 law schools in China, and countless articles on these subjects are published every year. In addition to the Jessup International Law Moot Court Competition and the International Humanitarian Law Moot Court Competition, the ICC Moot Court Competition is now held every year under the auspices of Professor LING Yan from China University of Political Science and Law. This year, students from about 20 law schools in China took part in the competition. The top three teams came to The Hague for the world-wide moot, and gained the best results to date since Chinese teams began participating in the moot court competition.

While I refer specifically to the Chinese experience, it is in many ways representative of the increased engagement of the international community as a whole with these topics. Pressing questions of international criminal law, such as those highlighted in the publications of the Forum for International Criminal and Humanitarian Law, increasingly demand the attention not only of lawyers and scholars, but of diplomats, politicians, and international organizations. Those of us who make these issues our life’s work have a responsibility to thoughtfully contribute to this ongoing dialogue. It is thus with great pleasure that I congratulate the Forum for International Criminal and Humanitarian Law on its contribution to this discussion through the launch of its new book on “State Sovereignty and International Criminal Law”.

Thank you.

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