Following President William Lai (賴清德) taking office, there has been renewed public discussion on whether it would be in Taiwan’s interests to apply for membership of the International Criminal Court (ICC).
Advocates say that this would align Taiwan more with the global community and international law, and serve as another factor to deter Chinese President Xi Jinping (習近平) from deciding to invade the nation.
The ICC, inaugurated in 2002, is based on the Rome Statute, adopted in 1998 by 120 countries to create an independent, international mechanism for prosecuting individuals for war crimes, crimes against humanity, genocide and aggression.
The question is whether Taiwan, given its unique status in the international community, would be able to secure membership. The short answer is yes. The process does not require UN membership, and it is at the discretion of the court itself and could be initiated by a letter from Lai.
The ICC would gain as much from Taiwan’s membership as Taipei would, as the court would be increasing its membership in Asia — where ICC membership is underrepresented — and bringing a state of 23 million people under its jurisdiction.
On the issue of statehood, Taiwan easily fulfills the criteria laid out in Article 1 of the 1933 Montevideo Convention on the Rights and Duties of States, namely a permanent population, a defined territory, a government and the capacity to enter into relations with other states.
Taiwan’s obstacle to achieving diplomatic recognition is a purely political issue, brought about by pressure from the Chinese Communist Party (CCP), and not something that the ICC need concern itself with.
Should Lai decide to bring Taiwan under the court’s jurisdiction, the resistance would come from within the nation, not the ICC.
One of the ICC rulings of note over the past few years is its decision to issue an arrest warrant for Russian President Vladimir Putin over war crimes committed in Ukraine. Russia withdrew from the Rome Statute in 2016, but Putin could still be charged because Ukraine accepted ICC jurisdiction in 2014. Putin rejects the warrant’s legitimacy, and yet it has curtailed his ability to travel overseas and cements his status as an international persona non grata.
Article 28 of the Rome Statute says that superiors are criminally responsible if they knew or consciously disregarded information clearly indicating that subordinates were committing crimes.
Article 29 says that crimes under the court’s jurisdiction “shall not be subject to any statute of limitations.”
China is not a signatory of the Rome Statute, but just as Putin is liable to arrest under the “territorial” jurisdiction of the court, Taiwan’s membership would allow investigation of Xi if he were to order an act of war against the nation. Xi would be under investigation for all crimes committed by subordinates in the course of carrying out his orders.
It is clear that due to the “great state autism” of Xi and the CCP, Beijing would reject any ICC ruling — just as it rejected the findings of the Permanent Court of Arbitration in 2016 regarding the South China Sea — but that does not mean Xi can ignore the implications.
Compared with Putin’s approach, Xi has prioritized more political and economic engagement with the West.
The risk of arrest under an ICC ruling might not be the foremost consideration in Xi’s risk assessment of invasion, but it would be another complicating factor.
For that reason alone, Lai should give the idea of ICC membership serious thought.
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