Decision of The Court of the Citizens of World on the Proposed Indictment of Xi Jinping – The Opinion of Judge Stephen Rapp

[Stephen Rapp is a former US Ambassador-at-Large for Global Criminal Justice and former international prosecutor at the Rwanda and Sierra Leone tribunals]

‘The Court of the Citizens of the World’ – a people’s tribunal – was organized by the Cinema for Peace Foundation, relating to alleged crimes committed by Xi Jinping, President of the People’s Republic of China.  The tribunal considered confirmation of an indictment for the crime of aggression, the crime of genocide, and crimes against humanity as proposed by a Prosecution team, and challenged by a Defence team, and heard witnesses and received documentary evidence during 8 – 12 July 2024 in public hearings in The Hague. The three judges at this tribunal – Z. M. Yacoob, Stephen Rapp and Bhavani Fonseka – came to a decision regarding confirmation of the charges, and these posts are their individual opinions, in which all concurred, pronounced at the last hearing of the tribunal on 12 July 2024.

12 July 2024

We would like to thank the attorneys for both the prosecution and defence for their very effective advocacy, including the skilful examination and cross examination of witnesses, the presentation of thousands of pages of documents, and the eloquent closing submissions.  We also wish to thank the witnesses, both factual and expert, who honoured this process with their sworn testimony, both in-person or by video-link.  

This is not a trial. It’s an indictment confirmation process similar to what the ICC conducts under Rome Statute Article 61, after the arrests of accused persons, and which it will conduct this October in the Joseph Kony case, in the absence of an arrest.  It is different from indictment confirmation in other criminal courts, which are one-sided and non-public, in that the defence is represented by counsel and able to challenge the evidential and legal basis for the indictment, though the standard of proof at this accusatory stage is one of “substantial grounds to believe.”  

I will be delivering the opinion on Count 1 that alleges the crime of aggression, based on acts committed against Taiwan, and also against the Philippines, Australia, and the United States.  Judge Fonseka’s opinion will focus on proposed Counts 2 through 4 that allege crimes against humanity committed in Tibet, and Judge Yacoob’s opinion will focus on proposed Counts 5 through 12 that allege genocide and crimes against humanity committed in Xinjiang.  We concur in each other’s opinions, and our decision is unanimous.  If we confirm an indictment, it will be posted on the Court’s website.

First, we must resolve the question of the responsibility of the Accused.  All the allegations in the proposed indictment concern acts undertaken by the military and government of the Peoples Republic of China since Xi Jinping became President, Secretary General of the Chinese Communist Party, and Chair of the Central Military Commission in March 2013.  Most of the alleged acts followed directly from policies that Xi Jinping publicly announced or praised, and for which he is directly responsible under Rome Statute Article 25 for committing, ordering, soliciting, inducing, contributing to, or aiding and abetting   

To the extent that certain acts were committed directly by Xi’s subordinates, all were of sufficient notoriety from international news and other public reporting so that he either knew or consciously disregarded notice of such acts.  Given the monolithic nature of Xi Jinping’s authority in China since March 2013, there is no dispute as to his effective control of the organs of the Chinese state or the units of the Chinese military.  There is also no question that he failed to take action to prevent or punish the alleged conduct; indeed, if there was action threatened, it was against those who were not sufficiently tough in the implementation of his policies.  Therefore, he is also responsible as a superior under Rome Statute Article 28.  There is also no question that the Xi Jinping meets the specific level of responsibility required for the crime of aggression under Rome Statute Article 8bis in that he is a “person in a position effectively to exercise control over or to direct the political or military action of a state.”

Now to the alleged crime of aggression itself, which the prosecution charges under Rome Statute Article 8bis and additionally or alternatively under customary international law based on the definition used at the Nuremberg and Tokyo tribunals.   We note that China raised no objections at the ICC Review Conference in Kampala in 2010 to the definition of aggression under Article 8bis (objecting only to Article 15bis) and accepted that the ICC definition of crimes could be applied to non-parties by its vote in favour of the UN Security Council’s referral of Libya to the ICC in 2011.   As to the Nuremberg and Tokyo definitions, China accepted and participated actively in the International Military Tribunal for the Far East (IMTFE) that convicted former Japanese leaders under its provisions in part for acts committed against China.   We therefore agree with the prosecution that both definitions of the crime of aggression are part of customary international law and are applicable to China and to the alleged acts of Xi Jinping.

The two statutory provisions are very different.  Rome Statute Article 8bis defines the crime of aggression as “the planning, preparation, initiation or execution of … an act of aggression, which by its character, gravity and scale constitutes a manifest violation of the UN Charter” and requires the underlying “acts of aggression” to be one or more of seven listed acts against a “state,” but does not require there to be an actual or planned “war.”  IMTFE Charter Article 5 labels the conduct as a “crime against peace” and defines it as “…the planning, preparation, initiation or waging of a declared or undeclared war of aggression, or a war in violation of international law, treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing.”  It thus requires an actual or planned war but does not require it to be waged against a state. 

As to alleged acts against Taiwan, we must turn first to the question of statehood, because if Taiwan is not a state, then no individual can be guilty of aggression against it under the provisions of Article 8bis.  In determining statehood, there are two recognized theories.  One is ‘constitutive’ and looks to the recognition by other states, or by multi-state bodies. The second is ‘declarative,’ which has the legal foundation of the Montevideo Convention which requires 1) a permanent population, 2) defined territory, 3) a government and 4) the capacity to enter into relations with other states.  These requirements make it clear that what is ‘declarative’ is actions, not words.  The defence has urged us to adopt the constitutive approach and suggest that we view recognition by the United Nations General Assembly as dispositive. We would note that declarations by UN political bodies are distorted by pressures from global power blocs, and this has resulted in the UN having failed to recognize reality in the case of China and Taiwan, both in the past and present.  From 1949 to 1971 it failed to recognize the Peoples Republic of China with its capital at Beijing, despite its meeting all the conditions of the Montevideo Convention.  Since 1971 it has failed to recognize Taiwan with its capital at Taipei, while it has also met the Montevideo conditions.

We conclude that the declarative is the better approach and find that Taiwan satisfies its requirements.  Of course, Taiwan’s government has not formally declared its own independent statehood, something that the late Judge James Crawford of the International Court of Justice suggested should be viewed as an additional condition.  However, we have heard evidence that China has threatened to invade Taiwan if the Taipei government declared its independence and has even threatened individuals with criminal prosecution and imposition of the death penalty if they asserted Taiwan’s legal right to independence in hearings like ours.   Despite such intimidation, the pro-independence Democratic Progressive Party has elected the last three Presidents of Taiwan.  As actions are a stronger foundation than words, we conclude that it is unnecessary that there be a formal declaration before finding that that Taiwan is an independent state, for all intents and purposes, and fulfils the requirements of Rome Statute Article 8bis. 

Of course, if a war is being prepared and planned, one does not need a determination of statehood for there to aggression as defined by Article 5(a) of the IMTFE Charter.  One would need instead a violation of “treaties, agreements or assurances’ or of ‘“international law” generally.  As for agreements and assurances, we find the use of the term ‘One China’ in the US-China Communiques of 1972, 1979, and 1982 to be unhelpful, as it clearly meant something different to each of the parties.  Of greater value in determining whether there were implicit “assurances” is the US Presidential Interpretation that accompanied the 1982 Communique that stated that US actions would be based on “the continuity of China’s declared ‘fundamental policy’ of seeking a peaceful resolution of the Taiwan issue.”  Under this interpretation, the US actions to be affected by that continuity were to be the level of US arms sales to Taiwan, suggesting sales would increase if China appeared to be abandoning the fundamental policy.  On the other hand, Chinese leaders have never explicitly said that China would not use force against Taiwan, and Xi Jinping has recently begun speaking of China’s right to settle the status of Taiwan by force.  Yet by focusing on actions and not words, it is possible to see that a peaceful resolution was assured over many decades, with ongoing arm sales a form of insurance, and that the breach of that assurance by war could be aggression.

However, we chose to rely instead on the possible breach of international law, as set forth in UN Charter Article 73, that recognizes the right of self-determination by the people of former ‘non-self-governing’ territories after the end of colonial rule.  This principle is consistent with the policy expressed in 1935 by the founding leader of the Chinese Communist Party, Mao Zedong, that the people of Taiwan should have the same right to independence as the people of the Philippines or Vietnam.  These situations are all similar as Taiwan was a colony of Japan from 1895, the Philippines of the US from 1898, and Vietnam of France from 1887. The exercise of the right may not come without a struggle, but the right persists.  A useful example is that of Timor-Leste which was a colony of Portugal for hundreds of years.  When Portugal gave up its colonial empire in 1974, Timor-Leste was occupied by neighbouring Indonesia for almost a quarter century, but the right of its people was honoured after 78% voted for independence in 1999 referendum and it became formally independent in 2002.  Similarly, Taiwan was occupied by Chiang Kai-shek’s nationalist forces in 1949, and governed under one-party KMT rule, enforced by martial law, for several decades.  Since multi-party democracy was established in the early 1990s, its population has increasingly favoured the pro-independence party, even as Beijing has undertaken acts of intimidation against those supporting independence.  A war launched by China to take full control of Taiwan would clearly extinguish the right of self-determination by the people of Taiwan, and would be in violation of international law, and thus constitute aggression under the IMTFE definition.

We now turn to the question of whether there are “substantial grounds to believe” that Xi Jinping has committed the crime of aggression.  The prosecution as presented evidence of acts of aggression against Taiwan as well as against the Philippines, Australia, and the United States, as defined in 8bis(2)(b), specifically, “use of any weapons by a State against the territory of another state;” 8bis(2)(c), specifically, “the blockade of the ports or coasts of a state by the armed forces of another state; and 8bis(2)(d), “an attack by the armed forces of a state on the land, sea or air forces, or marine and air fleets of another state.”  

We find that this evidence has met the substantial grounds test as to the short-duration blockades of Taiwan that accompanied the Speaker Pelosi visit in August 2022 and inauguration of Taiwanese President Lai Ching Te in May 2024.  We find the standard met as to the use of weapons against territory and/or marine forces of the Philippines at various times in 2023 and 2024 as China attempted to exercise its claim over the territorial waters of the South China Sea within its ‘nine-dash-line’ which claim was held illegal in 2016 by the Permanent Court of Arbitration under the UN Convention on the Law Sea, of which treaty China is a state party.  We also find that the standard is met as to use of a laser weapon by Chinese forces against Australian forces in international waters in February 2022, and as to actions by persons under the effective control of the Xi Jinping in a cyber-attack on a unit of the US Naval War College in 2020.   

Of course, a determination that there are acts of aggression is only the first of a two-step process for deciding whether there is the crime of aggression under Rome Statute Article 8bis.  Those acts must be of sufficient “character, gravity, and scale” to constitute a “manifest violation” of the UN Charter.  In determining whether there is a manifest violation, as we did in our decision when sitting as a Ukraine Tribunal in February 2023, we rely on the Understandings set forth in Annex 3 of the Resolution approving Article 8bis at the ICC Kampala Review conference in 2010, which said that it must be “the most serious and dangerous form of the illegal use of force” and that “the three components of character, gravity, and scale must be sufficient to justify a manifest determination, no one component can be significant enough to satisfy the manifest standard by itself.”

We must decide based on the specific acts committed to date that have been proven by the prosecution, none of which have resulted in the loss of a single human life.   As such, the Court, after careful consideration, has determined that that standard of manifest violation has not yet been met.  We recognize that the proven acts were provocative and in fact intended to intimidate the people of Taiwan, and to interfere with the sovereign rights of Philippines, Australia, and the US, but the law requires “the most serious and dangerous form of the illegal use of force.”  Thus, the conduct of the Accused as a leader of China was wrongful under international law, but not criminal at this stage under the Rome Statute. 

The second question is, whether we have a violation of customary international law coming based on Article 5(a) of the IMTFE Charter.  Here we need more than various acts of aggression, we would need to find a war, or the planning and preparation of one. War is more than a long series of provocative actions like those we have seen in history’s so-called ‘cold wars.’  It is the significant engagement of opposing military forces in active hostilities, like the great conflict that gave rise to the prosecution of crimes against peace at Nuremberg and Tokyo, and like that occurring in Ukraine after Russia’s full-scale invasion in February 2022.  We know the seriousness of a war. We cannot say, based upon the proof that’s been produced by the prosecution, that the acts of the Chinese leader have unleashed a war, nor we can we say that we have heard sufficient proof that one is being planned or prepared.  To be sure the Chinese leader has built a large and well-armed military capable of action against Taiwan, but we have not seen the development and deployment of the kind of amphibious force that would be necessary to invade and defeat Taiwanese forces and the forces of countries that may come to its assistance. Even with the new language of Xi Jinping, reserving the right to use force, we do not seen sufficient proof that a determination has been made to use force or that this has moved to the level of planning and preparation for war.  

For these reasons, we decline to confirm Count 1 of the indictment.

We hope that our reasoning on this count will be a clear warning to China and its leader.  Further aggressive acts or moves toward preparation for invasion could in fact cross the line. This should be avoided out of respect for international law and in the interests of the peace and security of the entire world.  

I turn now to my colleague, Judge Fonseka, to deal with proposed Counts 2 through 4.