Is the International Criminal Court destined to pick fights with non-state parties? (Bijvoorbeeld rond Oeigoeren)

There have been reports of a communication to the International Criminal Court alleging that the treatment of Uighurs in Xinjiang by Chinese authorities constitute international crimes within the Court’s jurisdiction.

The jurisdictional basis of the claim is that China’s conduct involved forced deportations to Cambodia and Tajikistan, which are parties to the statute even though China is not.

This obviously relies on the finding in the situation in Bangladesh/Myanmar (concerning the forced deportation of Rohingya out of Myanmar) that the court may take jurisdiction over certain cross-border offences where one of the states involved is a party to the Statute. While most such communications go nowhere (and I offer no comment on this one), it raises again to my mind the question of whether the ICC was almost designed to become embroiled in such conflicts with non-parties.

That states may delegate jurisdiction over offences committed on their territory to an international court is uncontroversial. The extent to which the conferral of objective territorial jurisdiction on the ICC has set the stage for conflict with non-member states is, however, increasingly apparent. We now have the Court asserting jurisdiction to investigate crimes orchestrated in Myanmar, the actions of CIA agents and other Americans in Afghanistan, of Russians in Georgia and Ukraine, and it may quite possibly soon be investigating the actions of Israeli officials in Palestine.

Whether one regards this as a problem depends to some extent on one’s vision of the Court.

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