Shivani Choudhary and Ananya Agrawal, 4th year students at the National University of Juridical Sciences in Kolkata, India, discuss the adequacy of the International Criminal Court in establishing China's culpability for the spread of Covid-19...
4,017,208 dead; 11,727,541 battling death.
The above figures only begin to demonstrate the horrific reality and intolerable burden posed to the world at present due to Covid-19. The pandemic is more than just a health crisis, it is also a test of how effective international courts are when it comes to dealing with such unprecedented situations. In this article, the authors argue the adequacy of the International Criminal Court (“ICC”) to end the impunity for serious crimes emerging due to the advancement of science and technology. Furthermore, the authors would explore the possibility of using the effects doctrine to exercise jurisdiction over the alleged negligent acts of the Chinese Regime, which lead to the outbreak and spread of coronavirus worldwide.
Relying on Statutory Governance
Article 12 of the Rome Statute (“the Statue”) governs ICC’s jurisdiction. As per Article 12(2), the court can exercise jurisdiction only if the state on whose territory the conduct in question occurred is a state party. In the case of a non-state party, it must consent to the jurisdiction of the court by declaration or the matter has been referred to it by the UN Security Council.
It must be noted that China is not a party to the Statute. Further, there has been no referral by the Security Council yet. The present situation suggests that such a referral is highly unlikely given China’s veto power over the same. Therefore, the contention remains of how the ICC can exercise jurisdiction in this case. The answer lies in Article 12 itself.
Article 12(2)(a) permits jurisdiction wherein the “conduct in question” happens on a state party’s territory. We contend that the court can exercise ‘effects jurisdiction’ over China since the phrase ‘conduct in question’ under Article 12(2)(a) can be interpreted as ‘crimes in question’ which includes the crime’s effects. The effects principle allows the court to claim territorial jurisdiction if the actus reus takes place outside state territory but substantial consequences are felt within the territory.
Article 21 sets a hierarchical ranking that must be relied upon while attempting to interpret the term “conduct” under Article 12(2)(a) as “crimes”. This helps clarify the scope of the ICC’s jurisdiction.
Under Article 21(1)(a), the court is first required to place reliance on the Statute, Elements of Crimes and its Rules of Procedure and Evidence. Article 21(1)(b) directs the court to refer to applicable treaties and the principles and rules of international law while interpreting the provisions of the Statute. Lastly, Article 21(1)(c) states that a court can also refer to the general principles of law derived by the Court from national laws of legal systems. Since the term ‘crime’ would include the ‘consequences’ of the conduct, the court would then be able to exercise jurisdiction over the alleged acts of the Chinese Regime because its consequences were felt in several nations, which are state parties to the Statute. Hence by employing all three provisions in hierarchical order the term ‘conduct’ can be interpreted as ‘crime’.
The literal interpretation of Article 12(2)(a) would reveal that there exists an ambiguity between the usage of the word ‘conduct’ and ‘crime’. If the term ‘conduct’ was interpreted in its ordinary meaning, it would lead to multiple elucidations. As a consequence, Article 31(1) of the Vienna Convention on the Law of Treaties (“VCLT”) directs the examination of the context in which the term is used to ascertain the actual meaning. Various scholars have put forward that a holistic reading of neighboring provisions determines the context.
Therefore, to do so, we draw a parallel between territorial jurisdiction on land vis-à-vis registered vessels and aircraft. The literal reading of Article 12(2)(a) would reveal that the court draws jurisdiction on land based on the conduct in question, but exercises jurisdiction on vessels and aircraft based on the actual crime being committed. In the Myanmar case, ICC had completely dismissed the distinction between ‘conduct’ and ‘crime’ when it came to the jurisdiction on land versus a vessel while describing the ratione loci preconditions. Hence, it would be irrational to differentiate the test of jurisdiction based on the physical traits of the location
Upon reviewing the scholastic analysis of the travaux préparatoires as per Article 32 of the VCLT, one finds a lack of uniformity in the interpretation of Article 12(2). However, there is a continuous conflation as the terms ‘conduct’ and ‘crime’ have been used interchangeably in Article 22(1), 31(1)(b) & (d), 32(2), 90(7), 93(10)(a) of the Statute. Moreover, ICC itself has unremittingly used the two terms homogeneously in cases like Katanga and Gbagbo. Therefore, considering the contextual interpretation of Article 12(2)(a) and rulings by ICC, it can be reasonably concluded that ‘conduct in question’ can be interpreted as ‘crimes in question’.
Object & Purpose
Article 31(1) of the VCLT directs reading the provisions of the statute in light of its object and purpose, further supporting this interpretation. The preamble of the Statute provides for an end to impunity for the perpetrators of the most serious crimes which concern the entire international community. These are foundations upon which the global community built the court, anticipating crimes that have interterritorial consequences.
Hence, one’s narrow interpretation of Article 12(2)(a) as a crime taking place within a State party’s territory, would render the intention of the drafters futile. Given that the viral outbreak is a novel crime, which emerged due to advancement in technology and frequent movement of people over state borders, it raises the reasonable expectation for the court to respond.
General Principles of Domestic Law
Moving forward, if the presented arguments seem insufficient to interpret ‘conduct’ as ‘crime’, the court can rely on Article 21(1)(c). Article 21(1)(c) directs the courts to use general principles of domestic law. Upon delving into several state laws [For example, Canada Criminal Code (1985) and even Section 6(2) of China Criminal Law (1997)], one recognizes concepts built around the territoriality principle to try extraterritorial crimes through the application of the effects doctrine.
Moreover, during the inception of an international criminal tribunal by treaty, states agreed to delegate their jurisdiction based on certain principles. Such jurisdiction must incorporate restrictive doctrines widely practiced in domestic systems to encompass maximum serious criminal cases under the ICC. Draft-makers also intended to grant jurisdiction to the court on the basis of firmly grounded principles in international and domestic law. Although the Statute is silent on the exercise of jurisdiction on the basis of effects doctrine, the court can apply established principles of domestic law to achieve the above-mentioned objectives. The restrictive reading of Article 12(2)(a) would fail such an object.
Lastly, even the Special Court for Sierra Leone, a treaty-based international court, provides a precedent for the exercise of effects jurisdiction by ICC as it upheld the indictment of President Charles Taylor of Liberia by applying the effects doctrine. Despite actions taking place in Liberia, a non-state party, the effects of Taylor’s actions were felt in Sierra Leone, therefore, the court exercised its jurisdiction thereby expounding the doctrine of effects jurisdiction.
Similarly, the Court must exercise jurisdiction in the present case because the effects of alleged acts of the Chinese Regime were felt within the state parties to the Statute.
Satisfying the Requirements under the Effects Doctrine
To establish the jurisdiction on the basis of effects doctrine, it is important to find a substantive link between the crime and the state which bore consequences. The link can be established when: the consequences are direct and proximate, and they have a substantive impact on the principal state.
The authors argue that the impact of actions of the Chinese Regime is direct and proximate because the consequences of their actions were reasonably foreseeable. Various meetings conducted by the Chinese government showcases awareness of the possibility of human to human transmission of viruses. The government was aware that the deadly virus could easily escape in the general population of neighboring regions, that is why they imposed complete lockdown domestically. This proves the foreseeability of the effects of the spread of the virus on the part of the Chinese Regime.
However, they failed to take appropriate actions to control the spread of the virus to the neighboring countries by not imposing any restriction in the movement from China to other parts of the world, endangering the lives of millions. Further, the consequences are substantive as these ‘acts/omission to act’ have resulted in the death of millions of people worldwide, leaving many others with severe illness. Hence, ICC must exercise effects jurisdiction in the present situation to hold the Chinese Regime responsible for their actions.
To conclude, the authors put forward that ‘Conduct in Question’ in Article 12(2)(a), is transposable to the term Crime. Since Article 30 of the Statute supports that the term crime includes the constituent actus reus as well as the consequences of such actus reus, such an interpretation would enable the court to exercise the effects jurisdiction on China. This aligns with the principles on which the court is built.
Lastly, given that the viral outbreak is a novel crime, which has emerged due to advancement in science and technology, one reasonably expects the honourable ICC to stand ready to respond to an ever-changing and evolving society by exercising the effects jurisdiction.
Shivani Choudhary and Ananya Agrawal are 4th year B.A. LL.B. (Hons.) students at the National University of Juridical Sciences, Kolkata.
Suggested citation: Shivani Choudhary and Ananya Agrawal, Can ICC Nip the Evil in its Bud: Exercising Jurisdiction over China, JURIST – Student Commentary, July 22, 2021, https://www.jurist.org/commentary/2021/07/choudhary-agrawal-icc-jurisdiction-china/.
This article was prepared for publication by Giri Aravind, a JURIST staff editor. Please direct any questions or comments to him at firstname.lastname@example.org
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