The Memo: Taiwan to join the International Criminal Court?

Group 723.png

Taiwan to join the International Criminal Court?

Erin Bradbury – 22 January 2024

With ever increasing geopolitical tensions, Taiwan is reportedly considering joining the International Criminal Court (ICC) as an act of deterrence against what it describes as military aggression from China. Not to be confused with the ICJ (the International Court of Justice), both the ICC and the ICJ have hit the headlines in recent months, so it’s worth getting clear on the distinction. The ICJ - the oldest of the two and the ‘principal judicial organ of the United Nations’ (which has been around since 1945) - resolves disputes between states which have consented to its jurisdiction, such as UN members. Whereas the ICC can only investigate and prosecute crimes committed on or after the 1st of July 2002 under the Statue of Rome if ‘the crimes were committed by a State Party national, or in the territory of a State Party, or in a State that has accepted the jurisdiction of the Court.’ The Statue of Rome has four categories of international crimes which it can prosecute: crimes of genocide, crimes against humanity, war crimes and crimes of aggression.

By 2049, following the ‘One China Policy’, the People’s Republic of China seeks to be ‘reunified’ with its ‘breakaway province’ Taiwan (which has independently governed since 1950). So, in theory, if Taiwan were to either unilaterally accept the ICC’s jurisdiction under its president, or gain ICC membership by signing the Rome Statue, the court would be allowed in principle to investigate, issue warrants and prosecute Xi Jinping if any orders related to the four categories are committed against Taiwan in its territory. For supporters of this action, the hope is that by coming under this international jurisdiction, China will not seek to annex Taiwan.

Beyond questions as to the effectiveness of the ICC as a deterrent, further complexity emerges over Taiwan’s status as an independent nation. As of today, Taiwan is not a member state of the UN (with a 1971 UN resolution recognizing the PCR as the legitimate representative of China), and only 12 diplomatic allies formally support Taiwan as sovereign state, with the loss of Nauru this month. The relevance of the UN comes down to the fact that although the Statue is not a UN treaty, the administrator of ICC membership is the UN secretary general – undeniably politically complicated in this current landscape.

As of now, with the very recent Taiwanese presidential election, any movement on this consideration by the government is highly unlikely to happen anytime soon. So, we are yet to see what decisions will be made, but what is evident is that the challenge to gain ICC membership, the potential recognition of the ICC’s jurisdiction with competing claims, and its overall enforceability will not be simple.


If you're interested, take a look at our international arbitration practice area overview