Should the ICC accept Taiwan’s delegation of ad hoc criminal jurisdiction? A debate on Taiwan’s functional statehood in the context of Article 12(3) of the Rome Statute

Abstract

This paper provides a comparative study of Taiwan (Republic of China) (ROC) and Palestine. It argues that Taiwan (ROC), while not recognised as a State and thus unable to ratify the Rome Statute, could still delegate criminal jurisdiction to the International Criminal Court (ICC) by means of an ad hoc Article 12(3) declaration. This is because Taiwan (ROC) practises and enforces an autonomous domestic criminal justice system and has the capacity to cooperate with the ICC under Part 9 of the Rome Statute. By carefully studying the jurisdictional decisions on Palestine, this paper argues that the door is still open for future Pre-Trial Chambers to consider the functional interpretation of ‘State’ under Article 12(3). However, the major challenge for Taiwan (ROC) is not one of impracticability but illegitimacy. A declaration would require consideration of why jurisdiction ought to be extended to Taiwan (ROC) but not to other contested entities. In this respect, the paper argues that the ICC should follow the mandatory non-recognition of contested entities created and sustained in violation of peremptory norms of international law. In addition, the paper argues that, as the ‘interests of justice’ clause under Article 53 would, in any event, serve as the final bar to filter out ‘sham’ declarations that intend to advance entities’ statehood before an investigation, political consequences alone should not prevent the ICC from accepting Article 12(3) declarations lodged by contested entities such as Taiwan (ROC) at the jurisdictional stage.