Practice Relating to Rule 158. Prosecution of War Crimes
China’s Law Governing the Trial of War Criminals (1946) contains a list of offences regarded as war crimes and also provides for the punishment of “other acts violating the law or usages of war, or acts whose cruelty or destructiveness exceeds their military necessity, forcing people to do things beyond their obligation, or acts hampering the exercise of legal rights”.
In 2005, during a debate in the UN Security Council on protection of civilians in armed conflict, China stated:
States concerned should take the initiative in assuming responsibility to end impunity and bring perpetrators to justice. Promoting the rule of law and ensuring justice is conducive to the promotion of reconciliation and the realization of long-term stability. We encourage States concerned to fully utilize their domestic judicial institutions.
In 2007, in the Sixth Committee of the UN General Assembly, a representative of China stated:
At the 59th session, the ILC [International Law Commission] considered the second report of the Special Rapporteur on the topic of the obligation to extradite or prosecute (aut dedere aut judicare), including one draft article. We wish to express appreciation to the Special Rapporteur Mr. Galicki for his outstanding work. Now I’d like to comment on a few questions.
First, I believe that the application of the obligation to extradite or prosecute should not compromise the judicial jurisdiction of States, nor should it affect the immunity of State officials from criminal judicial jurisdiction.
Second, on the scope of application of the obligation to extradite or prosecute, draft article one stipulates that the present draft articles shall apply to the establishment, content, operation and effects of the alternative obligation of States to extradite or prosecute persons under their jurisdiction. The Chinese delegation supports in principle the alternative nature of the obligation to extradite or prosecute as contained in the draft article, namely, States have the alternative to extradite or prosecute. As for the so-called third alternative related to the jurisdiction of other international judicial organs, we take a cautious approach, but we believe that it is necessary to set necessary limits to the alternative obligations of States. We suggest that the draft articles stipulate that in opting for extradition or prosecution, States should abide by the relevant rules on jurisdiction priorities. For example, it is necessary to ensure the priority of the State where the crime occurred and the State of nationality of the suspect in exercising jurisdiction.
We also suggest a clarification of the meaning of “jurisdiction” in draft article one concerning the State obligation to extradite or prosecute persons under their jurisdiction. It is our understanding that the above jurisdiction refers to territorial jurisdiction or actual control of a State and does not include extraterritorial jurisdiction of a State over individuals outside its territories on the basis of the principles of personal jurisdiction, protective jurisdiction or universal jurisdiction, because the obligation to extradite or prosecute is based on the actual jurisdiction or control of the State over an individual. In light of this, we suggest that the wording “under their jurisdiction” in draft article one be changed to “on their territories or under their actual jurisdiction or control”, or that corresponding explanation be made in the commentary.
Third, on the nature of the obligation to extradite or prosecute, my delegation believes that the obligation to extradite or prosecute is basically a treaty obligation and States undertake this obligation mainly on the basis of treaty provisions. However, if the crime to which the obligation to extradite or prosecute is applied is a crime under the customary law universally acknowledged by the international community, the obligation to extradite or prosecute may also become an obligation under international customary law.
Fourth, on crimes covered by the obligation to extradite or prosecute, in the view of my delegation, they should primarily include international crimes and transnational crimes endangering the common interest of the international community as confirmed by the international law, and serious crimes endangering national and public interest as stipulated by domestic law. Making a non-exhaustive list of crimes in the draft articles can be an option.
Fifth, my delegation believes that the core issue of this topic is the conditions for the extradition and prosecution obligations of States. We suggest that the Commission study the applicability of the conditions for the prohibition of extradition contained in the extradition rules of various States and the conditions for prosecution provided for in the criminal procedural laws of States. Then the Commission can see if it is necessary to establish a set of common criteria for extradition and prosecution. The relations between this obligation and other rules of international law, including universal jurisdiction, can also be further studied.