Jai Sanyal and Shebani Bhargava*

As the novel coronavirus continues to wreak havoc, China’s failure to adequately address the situation has been criticised by several countries and individuals. The general sentiment seems to be that China is at fault and that it should ‘pay’ for what it has done. While some have made statements condemning its actions or perhaps even its inactions, others have contemplated lawsuits. Some of these lawsuits characterise China’s actions as a ‘crime’. This raises an important question – before which court(s) should one initiate these lawsuits? Given that the doctrine of sovereign immunity serves as a stubborn roadblock to achieving this end, recourse may only really lie to the ‘international courts’.

This is where the International Criminal Court (ICC) comes into the picture. Recently, pleas were filed before the ICC by individuals from both the United States and India. This suggests that some believe that the ICC is the appropriate forum to ascertain China’s responsibility for this global pandemic. That this course of action has gathered support, is particularly eyebrow-raising, especially given the ICC’s jurisdictional requirements.

The ICC was established by the Rome Statute in 2002 to exercise jurisdiction over only t­he most serious crimes of international concern. The International Court of Justice (ICJ), on the other hand, has broader jurisdiction, in that it hears claims on matters concerning questions of international law. In fact, while the issue is not without its own set of complexities, there is a far more compelling argument that one’s efforts would be better served if China were brought before the ICJ instead of the ICC.

The ICC’s Jurisdictional Regime

The implicit assumption behind the statement, ‘take China to the ICC’ is that a Country or a Government as a whole can be made a Party before the ICC. This could not be further from the truth. The ICC is concerned with trying and punishing individuals (and not States) who commit crimes against international law. As observed by the Nuremberg Tribunal in 1946, “Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.”

This philosophy of ‘individual criminal responsibility’ is reflected in Article 25 of the Rome Statute as well. Therefore, any argument that talks about taking China to the ICC, also bears the burden of identifying the individuals who perpetrated the crime of creating/spreading the COVID-19 virus, such that it would be a crime against humanity (CAH) or a crime of aggression (CoA) under Articles 7 or 8bis of the Rome Statute, as has been alleged in the aforesaid pleas that have been taken to the ICC. The only natural persons referred to in these pleas are the President of China, the General of the Chinese Army, and the Director of the Wuhan Institute of Virology.

Admittedly, identifying these individuals (and others if required) may be possible. Notwithstanding the procedural and investigative difficulties that would be involved and discounting the struggle in determining the true perpetrator of an alleged crime, this proposition is at least theoretically possible.

Individual Criminal Responsibility aside,­ there is also the consideration of the ICC’s jurisdiction over Chinese Nationals. The Rome Statute that established the ICC, has 123 State Parties as signatories. China is not one of them. State Parties are those countries that have accepted the Statute in its entirety. Article 12 of the Rome Statute provides that only a State which becomes a party to the Statute accepts the jurisdiction of the ICC. Further, a State, which is not a party, may also submit to the ICC’s jurisdiction depending on the crime in question. Essentially, as per Article 12(2)(a) & (b), the ICC only has jurisdiction over conduct committed in the territory of a State Party, or by the nationals (natural persons only) of a State Party.

Of course, it could be argued, that the COVID-19 related crime has been perpetrated in the territories of countries which are Parties to the Rome Statute, and therefore the ICC should have jurisdiction. This argument, however, would likely run into a few difficulties. First, the requirement in Article 12(2)(a) speaks to ‘conduct taking place in a territory’ and not necessarily a crime. The two differ in their meaning insofar as conduct is the act committed, while a crime would be the result of the conduct. It may very well transpire that conduct in one State would lead to a crime in another. Second, and noting that occurrence of conduct as the requirement, the allegation that China ‘created’ the virus would be nullified as one could surely assume that any creation of the virus would have occurred in China. Third, one would have to assume that the Chinese knowingly sent out carriers of the virus to different parts of the world as part of a concerted effort to spread the virus. When in fact, the truth is many countries experienced their first cases as a result of nationals returning to their home countries.

Simply put, China is evidently not a Party to the Rome Statute, and it is entirely unlikely that China would accede to the jurisdiction of the ICC in this case. Moreover, it could prove to be a fool’s errand to show that Chinese conduct occurred in the territory of a State Party. It would thus, follow that the ICC is not empowered to exercise jurisdiction or hear any matter that alleges criminal liability of Chinese officials. It is for these reasons that the ICC has previously stated that it has no jurisdiction over a complaint against the President of China, Xi Jinping.

While the preceding analysis deals with the ‘conventional’ jurisdiction of the ICC (pertaining to crimes such as CAH), the jurisdictional regime with respect to the CoA is slightly different – in that it places a higher value on the consent given by State Parties. Discounting the possibility of a Security Council referral in this case, the ICC is left with two options to exercise jurisdiction over the alleged CoA: either on the Prosecutor’s own initiative or upon a referral by a State Party. However, Article 15bis places additional limitations on the Court’s jurisdiction in these situations, such that jurisdiction may only be exercised over State Parties and provided that the State Party in question has not opted out of the ICC’s jurisdiction concerning CoA. Since China is not a State Party to begin with, it is of little consequence whether the conduct in question is classified as a CAH or a CoA.

A Possible Way around the ICC’s Jurisdictional Regime?

Interestingly, the ICC’s jurisdiction with respect to CAH may also be triggered in another way – by the United Nations (UN) Security Council’s referral. Article 13(b) of the Rome Statute empowers the Security Council, acting under Chapter VII of the UN Charter, to refer the crime in question to the Prosecutor of the ICC. While surprisingly, China did not veto the previous referrals concerning situations in Darfur (2005) and Libya (2011), it goes without saying that China will veto a referral that has to do with itself. That is assuming if such a referral is even moved for a vote.

Finally, the UN General Assembly’s ‘Uniting for Peace’ resolution merits mention here. The resolution allows for the General Assembly to consider the matter in question if the Security Council ‘fails’ to discharge its duty due to lack of unanimity. While not explicitly stated in the Rome Statute, academically speaking, the Uniting for Peace resolution could be invoked to refer a case involving a non-State Party to the ICC. Such an invocation would be particularly contentious, not to mention hypocritical, particularly because the Rome Statute establishes a consent-based regime (where States have only acquiesced to Security Council referral). Worse still, several countries voting towards the resolution would not be State Parties to the Statute either. This is in stark contrast to a situation where this resolution is invoked to seek the advisory opinion of the ICJ – where all the members of the UN General Assembly are ipso facto parties to the ICJ Statute.

Nevertheless, the invocation of this resolution is the only way the ICC could have jurisdiction over Chinese officials in this scenario. Given the wild goose chase that would be involved in identifying the appropriate Chinese perpetrators, it is unlikely that the world community would resort to this means. If it were to be invoked, it would arguably be more prudent to do so in order to seek an advisory opinion of the ICJ, which, incidentally was the case in 1997 – the last time this resolution was invoked by the General Assembly.

Is the Best Case Worth It? – Probably Not

In this case, the best-case scenario would probably pan out in the following way. By way of the Uniting for Peace Resolution, the UN General Assembly would refer the matter to the ICC. Then the Prosecutor of the ICC would request the Court’s permission to investigate and make a case against certain key Chinese officials. Subsequently, the ICC would successfully navigate the arduous process that is apportioning guilt under the Rome Statute and determine that certain Chinese officials are indeed guilty of CAH or CoA. Then what?

Part 7 of the Rome Statute provides for penalties. These penalties, however, are limited to a provision for imprisonment extending up to life and fines. Would this serve the purpose? Surely not. Surely reparations to the tune of billions of dollars and not imprisonment of key Chinese officials is what the world community would want. It is certainly what could help tackle the medical and economic ruin the pandemic has caused all over the world.

Even if we consider fines, we must recall that only the individual found guilty would be fined. Regardless of the salary drawn by the director of virology, the Chinese General, or even the Chinese President, the money in their respective bank accounts is nowhere near sufficient to meet the burdens of the reparations that the world would need right now.

* Fourth year law students, Maharashtra National Law University, Mumbai.