How Do States Join the International Criminal Court?

ARTICLES How Do States Join the International Criminal Court? Downloaded from https://academic.oup.com/jicj/article/7/2/233/902168 by guest on 30 September 2021 The Implementation of the Rome Statute in Japan

Jens Meierhenrich* and Keiko Ko**

Abstract Against the background of Japan’s long-anticipated implementation of the Rome Statute of the International Criminal Court in 2007,this article analyses the legislative implications of treaty accession. One of the causes of the accession delay in Japan ç nearly 10 years passed between the government’s participation in the adoption of the Rome Statute and its implementation thereof ç was the challenge of aligning the conflicting imperatives of domestic and international law. This article delineates these conflicting imperatives, reconstructing the deliberations over procedural and substantive law that attended the drafting of implementing legislation in Japan.We demonstrate in our analysis that unlike most other countries who joined the ICC community as States Parties, Japan had to overcome particularly formidable constitutional and legislative hurdles before membership in the permanent international court could become a possibility. Among other things, the implementation of the Rome Statute required a renegotiation, in key respects, of the fundamental principle upon which Japan’s post-World War II foreign and domestic policy rested, namely the renunciation of war and the culture of antimilitarism that is enshrined in Article 9 of the Constitution of Japan.

* Assistant Professor of Government and of Social Studies, Harvard University. An Abe Fellowship of the Social Science Research Council and the Japan Foundation awarded to Jens Meierhenrich made the field research for this article possible. Meierhenrich conducted inter- views and additional field research while a Visiting Associate Professor of Law at the University of Tokyo in 2007. He gratefully acknowledges the hospitality of Minoru Nakazato, Yasuaki Onuma, Yuji Iwasawa, and Koji Teraya. For comments, suggestions, and conversations, both authors thank Takeshi Akune, Nisuke Ando, Shuichi Furuya, Takeshi Hanai, Yasushi Higashizawa, Satoko Ikeda, Tadashi Inuzuka, Tomoaki Ishigaki, Takahiro Katsumi, Claus Kre, Yasushi Masaki, Akira Mayama, Mayumi Moriyama, Shinya Murase, Osamu Niikura, Motoo Noguchi, Hiroshi Oe, and Akira Takagi. Kiyoko Sandanbatake, Sunao Takao, and Haruno Yumioka provided expert research assistance. [[email protected]] ** Professor of Law, Mie University. [[email protected]] ...... Journal of International Criminal Justice 7 (2009), 233^256 doi:10.1093/jicj/mqp018 ß Oxford University Press, 2009, All rights reserved. For permissions, please email: [email protected] 234 JICJ 7 (2009), 233^256

1. Introduction Against the background of Japan’s long-anticipated implementation of the Rome Statute of the International Criminal Court (ICC) in 2007, this article analyses the legislative implications of treaty accession. One of the causes of the accession delay in Japan ç nearly 10 years passed between the government’s participation in the adoption of the Rome Statute and its implementation thereof ç was the challenge of aligning the conflicting imperatives of Downloaded from https://academic.oup.com/jicj/article/7/2/233/902168 by guest on 30 September 2021 domestic and international law. This article delineates these conflicting imperatives, reconstructing the deliberations over procedural and substantive law that attended the drafting of implementing legislation in Japan. A particular focus is on the Japanese response to the demand of complementarity as enshrined in Articles 1 and 17 of the Rome Statute, as well as Paragraph 10 of the Preamble. Governments have dealt with the principle in a variety of ways in the process of acceding to the international treaty. This article’s aim is to explain and understand, in the context of Japan, the legislative implications of this and related principles associated with the operation of the ICC. A careful explication of Japan’s attitude(s) towards international criminal law in general, and the ICC in particular, is important for several reasons: (i) Japan qua membership has become one of the most important financial underwriters to the ICC; (ii) many advocates of international adjudication believe that Japan’s accession will stimulate a demand for ICC membership in Asia; (iii) this notwithstanding, many observers in Japan deem the ICC to be primarily a ‘European court for Africa’, and continue to have serious reservations about getting involved too deeply with this novel international organization; and (iv) Japan’s legal tradition has raised a number of complicated technical legal questions that touch on the institutional foundations of international criminal law more generally. What makes the case compelling in yet another way is the fact that Japan’s path to ICC membership differed substantially from that traveled by Germany, a country to which Japan is frequently compared given the violent pasts with which both countries have had to reckon.1 Aside from the respective timing of the ratification of (in the case of Germany) and accession to the Rome Statute (in the case of Japan), an important difference relates to the implementation of the international treaty. Whereas Germany chose to adopt both procedural and substantive legislation in order to implement the Rome Statute, Japan opted to forego the latter. Unlike Germany, which embarked on constitutional as well as criminal law reform (enacting a new domestic Code of Crimes against International Law) so as to be able to become a State Party of the ICC, the Government of Japan was content to accede in a less progressive fashion. Ours is an attempt to explain why.

1 See, for example, C. Kre, Vom Nutzen eines deutschen Vo« lkerstrafgesetzbuchs [On the Utility of a German Code of Crimes against International Law] (Baden-Baden: Nomos, 2000); G. Werle and F. Jessberger, ‘International Criminal Justice is Coming Home: The New German Code of Crimes against International Law’,13 Criminal Law Forum (2002) 191^223. How Do States Join the International Criminal Court? 235

The remainder is organized into four parts. The first part examines the legislative foundations of treaty accession in Japan. Subsequently, we explore a peculiar constitutional challenge pertaining to the ratification and implementation of the Rome Statute in Japan. Here we delineate the problem of Yujihosei and the controversy surrounding the relevance of Article 9 of Japan’s post-war constitution for an accession to the international treaty. Then we turn to the legislative implications of treaty accession and the accession to the Rome Statute, with particular reference to problems of procedural and substantive Downloaded from https://academic.oup.com/jicj/article/7/2/233/902168 by guest on 30 September 2021 criminal law. The final part concludes and considers implications.

2. The Legislative Foundations of Treaty Accession Certain types of international treaties require approval by the Diet, Japan’s bicameral legislature, comprised of the 480-member House of Representatives (lower house) and the 242-member House of Councillors (upper house).2 International treaties that require explicit legislative approval fall into three types, as set out in 1964 by then Minister of Foreign Affairs, Ohira Masayoshi: (i) treaties that concern the law-making power of the Diet; (ii) treaties that require non-budgetary financial expenditures; and (iii) treaties that establish bilateral or multilateral relationships with other countries and are of political importance (e.g. 1965 Treaty on the Basic Relationship with Korea).3 These so-called ‘Ohira principles’ to this day constitute the official position of the Japanese government on the making of international law. In order for the Rome Statute ç as a non-self executing international treaty ç to be binding on Japan’s domestic courts and administrative organs, and to be legally applicable to (i) relationships between individuals as well as (ii) relationships between individuals and the state, the Ministry of Foreign Affairs (MOFA), in coordination with the Ministry of Justice (MOJ), had to deliberate the most appropriate mode of implementation. Seeing that the Rome Statute relates directly to the rights and duties of individuals and that membership in the ICC has imposed on Japan a considerable non-budgetary financial expenditure, Diet approval was a requisite step in the accession process in Japan. Generally speaking, the competence to interpret treaties rests with the exec- utive branch of the government, notably with MOFA.4 In the case of ICC- related matters, MOFA’s Division of International Legal Affairs Bureau (DILAB) was in charge. DILAB ascertains the exact content of any obligations imposed by an international treaty, in our case the Rome Statute, and examines whether a material conflict exists with Japanese law.5 This obligatory

2 Art. 4 of Public Offices Election Law, revised February 2000. 3 S. Yamamoto, Kokusaihou [International Law] (Tokyo: Yuhikaku, 1994), 106^109. 4 Art.4(5) of Law on the Establishment of the Ministry of Foreign Affairs. 5 S. Murase, ‘Reception of International Law into Domestic Law of Japan’, in Canada, Japan and International Law: Canadian Council on International Law 19th Annual Conference Proceedings (Ottawa: Canadian Council on International Law, 1990), 266. 236 JICJ 7 (2009), 233^256 examination has been characterized as being usually ‘meticulous’ in kind. This is probably an understatement. In the case of the Rome Statute, for example, the near obsessive attention that MOFA’s DILAB paid to this stage in the process of treaty accession was a principal reason why Japan’s path to membership in the ICC was so long and winding. In the case of the ICC, the question as to what type of new legislation was required for the implementation of the Rome Statute in Japan occupied, as we shall see in more detail below, an inordinate amount of time. Downloaded from https://academic.oup.com/jicj/article/7/2/233/902168 by guest on 30 September 2021 This is not to say, however, that the Japanese government was per se disinter- ested in furthering the cause of a permanent international criminal court. Even before the 1998 Rome Conference, the Japanese government was involved in laying the foundations for the establishment of the ICC. In 1994, the International Law Commission submitted its draft ICC statute and two years later, the Preparatory Committee was established. Japan dispatched its delegates to this committee and simultaneously the position of Special Counsel was created in the then Division of Treaties at MOFA. Moreover, MOFA, not unlike Germany’s Ministry of Justice, convened a study group at the time, con- sisting of Japanese international and criminal lawyers, to study in earnest the legislative implications of becoming a State Party to the ICC. The Japanese delegation to the Rome Conference was led by a renowned diplomat, Owada Hisashi, formerly Ambassador to the United Nations and currently President of the International Court of Justice. Other members of the delegation hailed from government as well as the academy.6 At the outset of the 1998 Diplomatic Conference of Plenipotentiaries on the Establishment of the International Criminal Court, Judge Owada, while outlining his government’s position, singled out four issues that were of concern to the Japanese government, two of which are relevant to our discussion. First, he stressed the importance that the Japanese government attached to the complementarity principle, specifically the supremacy of domestic courts: ‘The International Court should not deprive the national courts of their jurisdiction when the national judicial system functions properly and effectively. The International Court should come into play only when it is evident that justice is not being carried out by the court of national jurisdiction in the domestic judicial system.’7 Second, Judge Owada emphasized that ‘Japan considers it inappropri- ate to give the prosecutor the right to initiate investigation proprio motu.’ 8 The delegation left Rome without signing the Statute, however.9

6 Ambassador Hiromoto Segi (Ambassador to Italy),Yasumasa Nagaimine (MOFA),Toshiya Natori (MOJ), Mikio Yamaguchi (MOJ), Makoto Matsuda (MOFA), Takeshi Seto (MOJ), Kuniji Shibahara (Professor, Gakushuin University) and Akira Mayama (Defense Academy). 7 Statement by H.E. Mr Hisashi Owada, Diplomatic Conference of Plenipotentiaries on the Establishment of the International Criminal Court, 15 June 1998, available at http://www. un.org/icc/speeches/615jpn.htm (visited 9 March 2009). 8 Ibid. 9 Looking back, Judge Owada reflected that all along in the efforts to create the ICC since 1994, there was a tendency to put the emphasis on only conviction [i.e. retribution] and that the Japanese delegation to the Rome Conference tried its best to make sure that the fair criminal How Do States Join the International Criminal Court? 237

Notwithstanding this critical evaluation by Judge Owada, the Japanese government officially celebrated the adoption of the Rome Statute and participated in the ten sessions of the Preparatory Commission for the establishment of the ICC held in New York between 1998 and October 2002. This overall well- meaning attitude on the part of the Japanese government (as well as the Diet) has prompted Amnesty International to concede, notwithstanding repeated criticism of the government’s nine-year delay in signing the Rome Statute, that ‘Japan has been a strong supporter of the establishment of the Court. It Downloaded from https://academic.oup.com/jicj/article/7/2/233/902168 by guest on 30 September 2021 participated in the drafting of the Rome Statute and has since actively followed the work of the Court, including participating as an observer at the Court’s oversight body ç the Assembly of States Parties.’10

3. Yujihosei and the Prohibition to Legislate on War-related Issues It is important to emphasize that the constitutional foundations for an accession to the Rome Statute were initially prohibitive in Japan. Most significant, in this context, were the constraints that Article 9 of the country’s post-war constitution placed on her ability to adjudicate war crimes under the auspices of the ICC. At issue was the lack of domestic legislation dealing with matters of international humanitarian law and the possibilities and limits of the deployment of Japan’s Self Defense Forces (SDF) abroad. What was the relationship between this and the ratione materiae of the ICC? One of the scenarios feared by those who were party to the deliberations in Tokyo was the possible prosecution of Japanese nationals before the ICC as a result of the inability of the Japanese legal system (for lack of relevant provisions) to put Japanese nationals on trial at home. MOFA representatives, for understandable reasons, wanted to avoid at all costs a situation where the government would be obligated to transfer any Japanese citizen, civilian or otherwise, to The Hague. A resolution to this dilemma only presented itself after the passing of ‘Yujihosei’, the so-called emergency legislation of 2004, a package of seven laws that made possible, among other things, the country’s long delayed accession to the 1977 Additional Protocols of the 1949 Geneva Conventions on 14 June 2004.11 By transcending the constraint of the taboo that existed regarding

procedure be established under which the rights of the individuals (particularly of the accused) be protected. See H. Owada and K. Shibahara, ‘Romakaigi wo furikaette’ [‘Some Comments on the Rome Conference: A Dialogue’], 1146 Jurist (1998) 4-28 (Translation by the authors). 10 Amnesty International, ‘Japan: Amnesty International’s Appeal to Members of Parliament to Support for [sic] Japan’s Accession to the Rome Statute of the International Criminal Court in 2007’, ASA 22/008/2006, 12 December 2006, at 2. 11 While non-accession to the AP had previously been justified with reference to Japan’s constitutional renunciation of war it should be noted that, already in 1977, the Japanese government had begun to study the possibility of passing emergency legislation. 238 JICJ 7 (2009), 233^256

Yujijosei, the Japanese government created for itself the legal space necessary for contemplating in earnest accession to the Rome Statute. Let us examine in more detail the centrality of Yujihosei in the deliberations over Japan’s accession to the Rome Statute.

A. Constitutional Restraints on Japan’s Ability to Punish War Crimes Downloaded from https://academic.oup.com/jicj/article/7/2/233/902168 by guest on 30 September 2021 In order to understand the question of Yujihosei, one must appreciate the political context in Japan following World War II. Yujihosei literally translates as ‘the legal system for the time when something occurs’and is commonly understood to refer to the legal dispensation that is applicable, and required, in times of an armed attack.12 The question as to whether Japan should adopt Yujihosei was for many years a highly political and contested question. The controversy revolved, once again, around Article 9 of the Constitution of Japan, which stipulated that:

Aspiring sincerely to an international peace based on justice and order, the Japanese people forever renounce war as a sovereign right of the nation and the threat or use of force as means of settling international disputes. In order to accomplish the aim of the preceding paragraph, land, sea, and air forces, as well as other war potential, will never be main- tained. The right of belligerency of the state will not be recognized.

Article 9 must be read in conjunction with the Preamble of the Constitution, portions of which shed additional light on the meaning of the document’s ‘emergency provision’:

We, the Japanese people, acting through our duly elected representatives in the National Diet, determined that we shall secure for ourselves and our posterity the fruits of peaceful cooperation with all nations and the blessings of liberty throughout this land, and resolved that never again shall we be visited with the horrors of war through the action of government, do proclaim that sovereign power resides with the people and do firmly establish this constitution. ::: We, the Japanese people, desire peace for all time and are deeply con- scious of the high ideals controlling human relationship, and we have determined to preserve our security and existence, trusting in the justice and faith of the peace-loving peoples of the world. We desire to occupy an honored place in an international society striving for the preservation of peace, and the banishment of tyranny and slavery, oppres- sion and intolerance for all time from the earth.

What is the relevance of this for the implementation of the Rome Statute? Put succinctly, the renunciation of war prevented Japan from enacting any legislation that related in any way, shape, or form to ‘war’. Notwithstanding the fact that in 1954 the Japanese SDF were established, the taboo on Yujihosei Yujihosei remained salient for much of the post-war period. Although the Supreme Court of Japan has refused to declare unconstitutional the country’s SDF or the presence of United States military bases on the territory of Japan,

12 O. Toshio, ‘Kokuminhogohou tou Yujikanren Hou’ [‘Legislation on the Protection of the People and Seven Related Laws’], 1274 Jurist (2004) 41^50. How Do States Join the International Criminal Court? 239 whenever legal challenges were brought, lower court judges were less reticent. It is reported that by 2003, out of 25 District Court opinions addressing Article 9, three had declared either the SDF or the American bases to be unconstitutional.13 The reasoning driving the opposition to installing Yujihosei in the Japanese legal system was that if Japan had a law that would presuppose the state of war or an armed attack, this would by extension legalize ç and legitimate ç bellicose actions ç and as such violate the Constitution. So deep was the fear Downloaded from https://academic.oup.com/jicj/article/7/2/233/902168 by guest on 30 September 2021 of a constitutional revolution at the time that the legislative package of laws that was being debated under the moniker Yujihosei wasreferredtodisparag- ingly by some as ‘War Preparation Acts’. In other words, in order to prevent the Japanese SDF or any other entity from participating in belligerent activities, no legislation was supposed to be adopted that in any way ç directly or indir- ectly ç was linked to the phenomenon of war.14 The assumption was that as long as Yujihosei could be avoided, Japan would forever remain the pacific soft power that it had become in the post-World War II international system. This logic was applied to all international treaties.15 Wherever international treaties, such as Additional Protocol I (AP I) of the Geneva Conventions, prescribed rules in time of war, the prospect of ratification was very slim in Japan.16 Another reason why Japan for so long remained a non-contracting party to AP I relates to the concern felt in Tokyo that an expansion of the scope of personnel who are granted combatant and POW status could have an adverse effect on the protection of civilians in times of war. Needless to say, Japan’s peculiar state of affairs hampered in significant ways the reception of (important parts of) international law there. With the end of the Cold War, things began to change, however. In particular the enactment, in 1992, of the ‘Law Concerning Cooperation with United Nations Peacekeeping Operations and Other Operations’, commonly known as the International Peace Cooperation Law, shifted the parameters of the debate. A critical juncture, aside from the demand for UN peacekeeping operations in the international system, was the 1990^1991 Gulf War. An absolute renunciation of war under any and all circumstances (other than self-defense) to many seemed no longer defensible in light of pressing humanitarian and other concerns the world over. The International Peace Cooperation Law, which legalized the deployment of SDF contingents in support of UN peacekeeping operations, greatly helped to reduce public resistance to SDF

13 J.M. Ramseyer and E.B. Rasmusen, Measuring Judicial Independence: The Political Economy of Judging in Japan (Chicago: University of Chicago Press, 2003). 14 See also H. Fujita, ‘Nihon ni okeru Sensouhou Kenkyu no Ayumi’ [‘The Evolution of Study on the Laws of War in Japan during the Century’], 96 Kokusaihou Gaikou Zasshi [International Law and Diplomacy] (1997) 52 ^ 85. 15 S. Yachi, ‘Nihon ni okeru Kokusai Jouyaku no Jisshi’ [‘Implementing International Treaties in Japan’], 100 Kokusaihou Gaikou Zasshi (2001) 1^21, at 10. 16 A. Oukouchi, ‘June-vu Sho Jouyaku Dai 1 Tsuika Giteisho/Dai 2 Tsuika Giteisho’ [‘Additional Protocol I and Additional Protocol II to the Geneva Conventions’], 1275 Jurist (2004) 98. 240 JICJ 7 (2009), 233^256 activities.17 It was, as has been pointed out, ‘an important forerunner of the emergency laws enacted in the late 1990s and early 2000s’.18 Of symbolic significance were two close encounters with North Korea,19 and the terrorist attacks of 11 September 2001, which undeniably served as a catalyst of discur- sive and legislative change in Japan.20 The government, led by then Prime Minister Junichiro Koizumi, became increasingly concerned with the eventual- ity of an attack on Japan as well as with the country’s international military obligations. Downloaded from https://academic.oup.com/jicj/article/7/2/233/902168 by guest on 30 September 2021 Following this critical juncture, the political atmosphere surrounding Yujihosei changed significantly. Many Japanese realized that even self defense means becoming involved in an armed conflict, and that an absence of laws regulating SDF activities in times of such an armed conflict could give rise to extra-constitutional measures, notably ‘extra-legal military action based solely on military necessity’.21 Leading commentators in Japan suggested that such a state of affairs would not be in accordance with the concept of the Rechtsstaat.22 Consequently, scope for regulatingYujihosei emerged and legislative initiatives got underway ç and found the political support they previously lacked ç in the mid-1990s. Over the next 5 years, a series of emergency laws was adopted by the Diet, including the all-important 2003 ‘Law Concerning Measures to Ensure National Independence and Security in the Situation of Armed Attack’, dubbed the Armed Attack Situation Law. Although on the face of it this law was only concerned with the question of Japan’s domestic preparedness in response to an armed attack, its significance lies in the fact that it required the Government of Japan (in Article 21(2)) to prepare legislation for ‘the effective implementation of international humanitarian law’ in Japan, notably international rules pertaining to the suppression of war crimes and the treatment of prisoners of war (POW), topics to which we shall return in a moment in our discussion of Japan’s changing attitude towards the Geneva Conventions. In 2004, in the 159 Ordinary Diet Session, the Government of Japan introduced five additional bills. Along with the enactment of these laws, the Diet debated and approved Japan’s accession to Additional Protocols I and II of the

17 See further, International Peace Cooperation Headquarters, ‘Japan’s Contributions to International Peace’, available at http://www.pko.go.jp/PKO_E/pko_main_e.html (visited 9 March 2009). 18 A. Mayama, ‘Japan’s New Emergency Legislation and International Humanitarian Law’, 47 Japanese Annual of International Law (2004), 69^95, at 70. 19 One of those encounters, ‘Tepodong’, revolved around the 1998 testing of missiles that could reach the territory of Japan; the other,‘Fushin-sen Jiken’or ‘Spy Vessels Incident’, around a dis- guised fishing boat that opened fire on the Japanese Coast Guard. 20 Japanese Ministry of Defense, Bouei Hakusho [The Defense of Japan] (2002), 101^156. 21 Mayama, supra note 18, at 70. 22 N. Okuwaki, ‘Kaiyou ni okeru Yujihouseitaiou no Kadai: Hontokushu no Shushi’ [‘Problems for Responding to Armed Conflict on Sea: Implications’], 1279 Jurist (2004) 6^10, at 6^8. How Do States Join the International Criminal Court? 241

Geneva Conventions.23 This marked a critical juncture on Japan’s path towards accession of the Rome Statute, and it is important to consider it in more detail.24

B. Providing for the Punishment of Grave Breaches of the Geneva Conventions Downloaded from https://academic.oup.com/jicj/article/7/2/233/902168 by guest on 30 September 2021 One of the most important emergency laws adopted by the Japanese Diet at the turn of the 21st century was the ‘Law Concerning the Punishment of Grave Breaches of International Humanitarian Law’, also known as the PGB Law. This piece of legislation criminalized in Japan acts that were prescribed as ‘grave breaches’ in Article 85 of Additional Protocol I of the 1949 Geneva Conventions. What is of immediate significance for our purposes is the fact that the PGB Law of 2004 was the first piece of legislation adopted in Japan since the end of World War II that specifically addressed the punishment of international crimes, in this case war crimes. It is worth recalling in this context that up until 2004 Japanese governments had been prevented by law both from punishing persons who were found to have committed grave breaches of the Geneva Conventions as well as from extraditing such persons to another State. Another challenge remained, however.What of crimes committed outside of Japan? Since Japanese courts had extra-territorial jurisdiction only for those serious crimes enumerated in Articles 2^4 and Article 4bis of the country’s Criminal Code, it was conceivable that Japanese courts could find themselves in the unfortunate situation of being unable to initiate criminal proceedings. This could have transpired because Article 4bis stipulated that the Japanese Criminal Code was applicable only to crimes which international treaties had obliged Japan to punish since 1987. The PGB Law solved this jurisdictional problem. Article 7 of said law provided that Article 4bis of the Japanese Criminal Code was also applicable to crimes newly specified in the Yujihosei legislation. The Geneva Conventions and the Additional Protocols were taken to constitute examples of ‘international treaties’ as defined in Article 4bis.25 Moreover, Article 3 of the Annex to the PGB Law amended the Annex of the Japanese Criminal Code, which had previously limited the temporal scope of Article 4bis. It brought the grave breaches of the Geneva Conventions of 1949 into

23 The enactment of the relevant legislation by no means ended the debate over Yujihosei. There are still many critics as exemplified in, for example, the special issue of the prominent law journal, Zenkoku Kenpou Kenkyukai (ed.), Houritsujihou Zoukan: Zenkoku Kenpo Kenkyukai, Kenpou toYujihosei [Current Legal Issues: The Constitution and the Emergency Legislation] (Tokyo: Nihon Hyoron Sha, 2002). 24 Mayama, supra note 18, at 72^73. 25 See, for example, MOFA, ‘Japan’s Foreign Policy in Major Diplomatic Fields’, Diplomatic Bluebook 2004, available at http://www.mofa.go.jp/policy/other/bluebook/2004/chap3-a.pdf (visited 28 May 2008). See also U. Kadam and A. Faite, ‘Implementation of International Humanitarian Law in Japan: Analysis of Recent Developments’,106 Kokusaihou Gaikou Zasshi (2007) 36^56. 242 JICJ 7 (2009), 233^256 the range of the Japanese Criminal Code.26 With these measures, the Government of Japan finally installed jurisdiction based on the universality principle for grave breaches of the Geneva Conventions and the Additional Protocols. The creation of a legal basis for prosecuting and punishing grave breaches was an epoch-making event in the development of the Japanese legal system. It undoubtedly accelerated the country’s accession to the Rome Statute of the ICC.27 Downloaded from https://academic.oup.com/jicj/article/7/2/233/902168 by guest on 30 September 2021

C. The Issue of Genocide and Crimes against Humanity What had not yet been resolved at that point, however, was the status of the remaining types of international crimes ç genocide and crimes against humanity ç in Japan. In this domain, it was observed several years prior to the accession decision, ‘the Government will have to consider the desirability of [an] expansion of its criminal jurisdiction in order to fill the existing jurisdictional gap concerning crimes other than grave breaches of the Geneva Conventions and Protocol I’.28 In other words, since Japan is not a contracting party to the 1948 Genocide Convention, and no international treaty obligates states to criminalize crimes against humanity, there remained in the aftermath of Yujihosei a jurisdictional hole in the Japanese Criminal Code as far as international crimes committed outside of Japan were concerned.What was to be done? Once the longstanding and seemingly intractable problem of Yujihosei had been resolved, it was possible for the various ministerial bureaucracies (ranging from MOFA to MOJ) to contemplate this very question. They were finally in a position to study the minutiae of an accession to the Rome Statute, and to deliberate possible ç and impossible ç ways of doing so.

4. The Legislative Implications of Treaty Accession One of the principal issues slowing down the move to ICC membership in Japan was the contemplation of answers to the question as to whether the government should elect to draft and pass merely a procedural law in order to comply with the demands of accession (what we shall term a minimalist position) or should adopt a maximalist position that would have entailed the elabo- ration of a substantive law by way of which international crimes like genocide, crimes against humanity, and war crimes would have found their

26 Mayama, supra note 18, at 80^83. See also A. Mayama,‘Kokusaikeijisaibansho no Taishouhanzai to Kokunaitekitaiou’ [‘The Municipal Response to the Crimes that Fall Within the Jurisdiction of the ICC’],79 Houritsujihou (2007) 31^36. 27 Y. Masaki, ‘Nihon to Kokusaikeijisaibansho’ [‘Japan and the ICC’], in Shinya Murase and Keiko Ko (eds), Kokusaikeijisaibansho: Mottomo Juudaina Kokusaihanzai wo Sabaku [The International Criminal Court: Prosecuting the Most Serious International Crimes] (Tokyo: Toshindo, 2008), 323^347, at 326^327. 28 Mayama, supra note 18, at 95. How Do States Join the International Criminal Court? 243 way into the Japanese Criminal Code. It is important to point out in this context that, as a matter of course, a prospective State Party is under no obligation to enact substantive implementing legislation in order to become a member of the ICC. The deliberations over Japan’s accession to the Rome Statute lasted nearly a decade and involved various agencies and ministries, including, most importantly, MOFA, the Cabinet Secretariat, the Ministry of Justice, the Ministry of Finance and (what recently became) the Ministry of Defense. Downloaded from https://academic.oup.com/jicj/article/7/2/233/902168 by guest on 30 September 2021 Eventually, the Japanese government agencies and ministries involved in responding to the beckoning international community (the European Union in particular was committed to swaying Japan) resolved to adopt as policy a minimalist position. In contrast, Germany, the country with which Japan is frequently ç and often perfunctorily and misleadingly ç compared when it comes to the imper- ative of coming to terms with the past, adopted a maximalist position.29 Interestingly, the comparison with Germany featured prominently in Diet deliberations concerning Japan’s accession to the Rome Statute. Tadashi Inuzuka of the Democratic Party of Japan, the country’s largest opposition party, for example, put it thus to then Senior Vice-Minister of Justice, Kenichi Mizuno:

For years, whenever I asked the Minister of Foreign Affairs why we cannot ratify the Rome Statute sooner, I always received the same answer: We have to make sure that that we have a domestic legal basis for its implementation. How much [of a basis] do we need? ::: Take as an example, say, Germany. Germany not only prepared a procedural law but also enacted [a new substantive law] for the punishment of the three serious crimes [genocide, crimes against humanity, and war crimes], which I am sure was a hard task. But Germany became a State Party as early as 2001. ::: Do you not think that we should make [genocide, crimes against humanity, and war crimes] crimes in Japanese criminal law?30 The German position was examined as a model in the government deliberations about the desirable form and function of Japan’s implementing legislation.

29 For the argument that Japan should adopt a maximalist position, modeled after the German legislation, see the articles of P. Osten, most recently,‘Kokusaikeijisaibansho Kitei to Kokunai Rippo: Doitsu ‘Kokusaikeihouten’ souan wo Sozai to shite’ [‘The Statute of the International Criminal Court and Domestic Legislation: An Examination of the Draft of the German ‘‘Code of International Crimes’’’], 1207 Jurist (2001) 126^128. See also P. Osten, Der Tokioter Kriegsverbrecherproze und die japanische Rechtswissenschaft (Berlin: Berliner Wissenschaftsverlag, 2003), at 172^183. 30 166th Diet, Committee on Foreign and Defense Affairs, House of Councillors, Record of Proceedings, 26 April 2007 (Translation by the authors). Notably the small but vocal Japanese Network for the International Criminal Court (JNICC), run by the World Federalist Movement of Japan, was vigorously lobbying in support of accession. It must also be noted that the Japan Federation of Bar Association (Nichibenren) had been supporting the ICC and the Japanese accession to it throughout the years. See Y. Higashizawa, ‘Kokusaikeijisaibansho-Nichibenren to shiteno Kakawari kara mieru Kadai’ [‘The ICC: Challenges from the Perspective of the Japan Federation of Bar Associations’], 60 Houritsu no Hiroba (2007) 38^47. 244 JICJ 7 (2009), 233^256

Ultimately, however, Germany’s maximalist position was deemed ‘too ambi- tious’a choice for Japan.31 In the fall of 2006, after years of ministerial deliberation, former Prime Minister Shinzo Abe indicated his government’s intention to introduce into parliament the legislation necessary for becoming a State Party to the ICC. Following this show of political will, things moved rapidly. On 20 March 2007, a bill of approval and implementing legislation was discussed in the General Assembly of the House of Representatives, and on 23 March and 28 March in Downloaded from https://academic.oup.com/jicj/article/7/2/233/902168 by guest on 30 September 2021 the House Committee on Foreign Affairs where they were adopted with a resolution. Upon voting in the General Assembly on 29 March 2007, the lower house unanimously adopted the bills. Two weeks later, on 13 April, the House of Councillors considered the legislation in its General Assembly. After a discussion in the upper house’s Committee on Foreign Affairs and Defense on 24 and 26 April, the House Committee on Foreign Affairs and Defense adopted the bills with a resolution. On 27 April, the General Assembly of the House of Councillors adopted the proposed legislation unanimously. Thus, the road was paved for the deposition of the Instrument of Accession on 17 July 2007. As already mentioned, state parties have dealt with the principle of complementarity enshrined in Articles 1 and 17 as well as Paragraph 10 of the Preamble of the Rome Statute in a variety of ways. Where does Japan stand on the issue of complementarity, and how has this shaped the dynamics of treaty accession in this often misunderstood legal system? In order to clarify what was required in terms of the implementation of the Rome Statute in Japan, it is useful to differentiate between two related ç yet distinct ç challenges that faced the country’s legislators and bureaucrats in the period 1998^2007: (i) the possible drafting of procedural legislation to make possible Japan’s cooperation with the ICC and (ii) the drafting of substantive legislation to create a legal basis for the adjudication of international crimes under the ICC Statute. After much deliberation, the Government of Japan opted to forego a revision of its Criminal Code.What factors governed this decision in favor of a minimalist position on complementarity?

A. Substantive Legislation

1. Definitions of Crimes Amendments to Japan’s criminal law, particularly the code itself, have always met with resistance. This has to do with fact that Japanese criminal law is a finely calibrated system, and treated as such.32

31 T. Ishigaki, ‘ICC Kitei Teiketsu ni muketa Nihon no Kadai’ [‘Agenda for Japan Regarding the Ratification of the Rome Statute’], 1285 Jurist (20 05) 114 ^ 115. 32 As one commentator writes: ‘Japanese criminal law is primarily based upon the German system. For an act to be punishable, it has to fulfill three basic requirements. An act is criminal when it coincides with the definition of a specific crime (Tatbestand), is against the law (rechtswidrig), and is blameworthy (schuldig). As in Germany, specialists of criminal law in How Do States Join the International Criminal Court? 245

The value placed on the theoretical integrity of Japan’s Criminal Code and Procedure became an issue in the context of the implementation of the Rome Statute. Given the commitment to theoretical integrity, the introduction of new principles and crimes into Japan’s Criminal Code was controversial. A principal motivation driving the decision not to enact any new substantive law was to avoid, for the time being, complicated deliberations over the struc- tural transformation of Japan’s Criminal Code, which is precisely what many lawyers believe would be necessary if Japan were to incorporate the interna- Downloaded from https://academic.oup.com/jicj/article/7/2/233/902168 by guest on 30 September 2021 tional crimes codified in the Rome Statute into its Criminal Code.33 Indeed, the ICC’s international crimes do differ from the existing Japanese criminal law in various aspects, such as the elements of crime, the severity of punishment (longer period of confinement), and wider scope of punishable attempts. Rules such as the non-applicability of a statute of limitations (Article 29 of the Rome Statute) and proceedings on admission of guilt (Article 65) are also unknown in the Japanese criminal system. Given this, it has been argued, forcefully and successfully, within bureau- cratic circles that most of the international crimes contained in the Rome Statute are punishable as domestic crimes in Japan, for example, as homicide, assault, unlawful capture and confinement, and so forth. Furthermore, the Government of Japan repeatedly emphasized that criminal punishment is a sanction that results in the deprivation of life, freedom, and property on the part of a convicted individual and is therefore only to be used as a last resort (ultima ratio). Restraint must be shown, or so the Government insisted, when using criminal punishment as a tool for social control (kenyokushugi). Given these deep-rooted concerns about the limits of the criminal sanction, it is not surprising that the Government of Japan did not see cause for enacting substantive legislation merely to fill a gap between the ICC Statute and positive Japanese criminal law.34 Put differently, the Japanese government remains convinced that even international crimes perpetrated on a larger scale (e.g., extermination as a crime against humanity) could be adequately dealt with under Japan’s domestic criminal code. In such an event, the atrocities could be prosecuted, according to MOFA, as a ‘multiple homicide’ that just happens to have resulted in a large

Japan have endeavored to work out a systematic theory of criminal law incorporating these three requirements.’ H. Oda, Japanese Law (Second edn., Oxford: Oxford University Press, 1999), 416. 33 The last time the Japanese government attempted to overhaul its criminal code, in 1974, it met with fierce opposition. Interestingly, the problem of ‘overcriminalization’ was an important factor that scuttled the reform effort at the time, which, aside from attempting to introduce some 20 new crimes, also sought to increase the penalties for a number of offences. Ibid., at 414^416. 34 Y. Nakauchi, ‘Kokusaishakai niokeru Hou no Shihai no Kakuritsu ni Mukete: Kokusaikeijisaibansho Roma KiteiKokusaikeijisaibansho Kyouryouhouan no Kokkai Rongi’ [‘Establishing the Rule of Law in the International Community: Discussions in the Diet Regarding the Bill of Approval and the Act on Cooperation with the ICC’], 270 Rippo to Chosa (2007) 3^11, at 4. More generally, see H.L. Packer’s classic, TheLimitsoftheCriminalSanction (Stanford: Stanford University Press, 1968). 246 JICJ 7 (2009), 233^256 number of fatalities. In keeping with this logic, the 2007 implementing legislation purported that only a handful of acts constituting international crimes ç genocide, crimes against humanity, war crimes ç could not be accommo- dated within Japan’s criminal law. And, so the argument went, the acts in question were not of a ‘serious’ nature. In pursuit of treaty accession, the Government of Japan, in other words, advocated restrictive definitions of ICC crimes. In the words of one scholar,

‘restrictive definitions of ICC crimes in national legislation also occur in situa- Downloaded from https://academic.oup.com/jicj/article/7/2/233/902168 by guest on 30 September 2021 tions where states have not enacted a specific law implementing the Statute, and as a consequence, maintain definitions already present in their national legislation which are more restrictive than those found in the Statute’.35 Although this need not pose problems for the domestic prosecution of international crimes, it well may. For one, it could be said that restrictive definitions of ICC crimes (in particular in countries such as Japan where the prosecution of international crimes would not amount to more than a prosecution for ordinary crimes) are not in keeping with the spirit of the Rome Statute, which in its Preamble characterizes genocide, crimes against humanity, and war crimes as ‘the most serious crimes of concern to the international community as a whole.’ In this context, it has been argued, that ‘[a]lthough prosecuting for ordinary crimes fulfills the objective of ending impunity, it must not be for- gotten that the acts in question are the most serious crimes of concern to the international community as a whole. Regular national prosecutions for ordinary crimes are not desirable and would undermine the fundamental idea on which the international criminal justice system is founded.’36 In fact some international lawyers have gone as far as suggesting that, con- trary to the official Japanese interpretation of the Rome Statute, states are implicitly obliged to bring about the national implementation of the ICC’s substantive law. One author submits that ‘[a]s far as the Rome Statute is concerned, the position that national implementation of the ICC’s substantive law is compulsory finds support in a number of arguments’.37 Favoring a purposive rather than textual interpretation of the Rome Statute, this commentator points to the significance of the preambular language, notably in paragraphs 5 and 6, as well as the maxim of ut res magis valeat quam pereat.38 The argument revolves around the relationship between implementing legislation and court effectiveness. In instances where States Parties adopt inadequate implementing legislation ç i.e., legislation that makes provision for only a fraction of all conceivable scenarios of national prosecution ç the number of admissi- ble cases before the ICC would be inflated. This could lead to what might be described as adjudicative overstretch and thus be detrimental to the overall effectiveness of the ICC. ‘In actual fact, it would make the ICC a court of first

35 J. Bacio Terracino,‘National Implementation of ICC Crimes: Impact on National Jurisdictions and the ICC’,5 Journal of International Criminal Justice (JICJ) (2007) 426^427. 36 Ibid., at 439. 37 J.K. Kleffner, ‘The Impact of Complementarity on National Implementation of Substantive International Criminal Law’,1 JICJ (2003) 86^113, at 92. 38 That the thing may rather have effect than be destroyed. How Do States Join the International Criminal Court? 247

(and only) instance rather than a permanent reserve court as envisaged by the principle of complementarity.’39 According to pronouncements by representatives of MOFA and MOJ, the Government of Japan believes that it faithfully implemented the Rome Statute’s substantive law to the extent that this was necessary for the purpose of national prosecution. Arguably, this reasoning, which several other countries have also adopted, is persuasive only if we disregard the spirit of the Rome Statute and the purpose of the ICC. For the problem with the ‘ordinary Downloaded from https://academic.oup.com/jicj/article/7/2/233/902168 by guest on 30 September 2021 crimes approach’ is that international offences could potentially be punished less severely in municipal courts than they would be at the ICC. Consider the example of pillage as a war crime, as defined in Article 8(2)(b)(xvi) and Article 2(e)(v) of the Rome Statute. According to Japan’s Criminal Code, the most reasonable option in such an instance would be a conviction of theft. This would be problematic insofar as the maximum sentence that can be meted out for theft in Japan is one of 10 years imprisonment. According to Article 235 of the Japanese Criminal Code, ‘[a] person who steals the property of another commits the crime of theft and shall be punished by imprisonment with work for not more than 10 years or a fine of not more than 500,000 yen.’ Provided that the accused in our scenario seized the property of another through assault or intimidation, a conviction for robbery under Article 236(1) of the Japanese Criminal Code would be another option. In this scenario, a defendant convicted for pillage in times of war would face imprisonment with work for a definite term of no less than 5 years. Although the underlying conduct made punishable in the Rome Statute would be adequately dealt with in our hypothetical scenarios, the question arises as to whether the maximum sentences available in Japan’s Criminal Code for theft and robbery would be sufficient to reflect the gravity of the crime of pillage, which, after all, constitutes one of the ‘most serious crimes of international concern’. One way of addressing this problem is by increasing the penalties associated with ordinary crimes if and when these are perpetrated in the context of situations that could fall within the purview of the ICC. This solution was not pur- sued in Japan, where only one sentencing regime is currently in place. But even if Japan were to construct, in the coming years, an alternative sentencing regime that would become operational in ICC-related situations only, the question remains as to whether increased punishment alone would be sufficient to truly communicate the spirit of the Rome Statute. According to one scholar, ‘the international rules governing criminal prosecution of the core crimes differ from ordinary crimes in as much as they protect, in addition to the interests of individuals, the interests of the international community and, indeed, humanity as a whole’.40 Testament to this fundamental difference, or so this argument goes, is the distinct body of rules that governs the prosecution of international crimes, ranging from the non-applicability of statutory

39 Kleffner, supra note 37, at 94^94. 40 Ibid., at 98 (emphasis added). 248 JICJ 7 (2009), 233^256 limitations to the rejection of the superior orders defense. ‘Not recognizing the distinctive character of international crimes and not incorporating it into domestic law may consequently have serious implications for the functioning of the overall system of international criminal law in which they are embedded.’41 It is noteworthy in this context that the Government of Germany abandoned the ‘ordinary crimes approach’ and instead fully incorporated ç in most instances verbatim ç the international crimes of the Rome Statute into its Downloaded from https://academic.oup.com/jicj/article/7/2/233/902168 by guest on 30 September 2021 criminal code, among other things, because of the distinctive character of international crimes. This maximalist strategy was deemed necessary to convey more adequately than the ‘ordinary crimes approach’ can the very nature of genocide, crimes against humanity and war crimes.42 Although, as has been noted, in the majority of cases international crimes were punishable pursuant to German law prior to the adoption of the new Vo« lkerstrafgesetzbuch,the existing dispensation fell short of capturing the particularly odious character of the crimes in question as expressed in international law.43 On this argument, prosecuting genocide as ‘multiple homicide’ ç the strategy favored by the Government of Japan ç is not commensurable with the purpose of the Rome Statute precisely because it would in such an instance be unable to communicate the fact that aside from a (typically sizable) number of individual victims, humanity is also under attack.44 While it may be difficult to determine with any certainty whether crimes against humanity are more serious than war crimes, we are arguably on safe ground in suggesting that most (albeit not all) international crimes are more serious than ordinary crimes. If we believe this to be so, it logically follows that a rudimentary ‘ordinary crimes approach’ to the issue of complementarity leaves much to be desired. In particular, it risks subjecting a narrower range of conduct to punishment in municipal courts than was envisaged at Rome in 1998. In as much as the Government of Japan has most certainly stayed clear of the danger of ‘overcriminalization’, which scuttled criminal law reforms there in 1974, it may, by adopting a minimalist position to the implementation of the Rome Statute, have raised the specter of ‘undercriminalization’.

41 Ibid., at 98^99 (emphases added). 42 See, for example, Bundesministerium der Justiz (ed.), Arbeitsentwurf eines Gesetzes zur Einfu« hrung des Vo« lkerstrafgesetzbuchs mit Begru« ndung [Draft Legislation and Justification Concerning the Introduction of the German Code of Crimes against International Law] (Berlin: Bundesministerium der Justiz, 2001) and C. Kre, supra note 1. 43 G. Werle, Principles of International Criminal Law (The Hague: Asser, 2005), 83. See also Gerhard W. and F. Jessberger, supra note 1, at 191 ^ 223. 44 K. Takayama argues that the notion of ‘humanity’ cannot be reduced to the legal interest of individuals. Furthermore, she points out that the notion is not fully rooted in the Japanese legal system. K. Takayama, ‘Kokusaikeijisaibanken (2)’ [‘International Criminal Jurisdiction’ (2)], 154/2 Hougakuronsou (2003) 22^60, at 53. C. Taya, formerly a judge at the International Criminal Tribunal for the Former Yugoslavia, emphasizes the effect of the label (name) of the crime as a symbol that captures the reality of what happened: C. Taya, ‘Kokusaihanzai (ICC Kankatsuhanzai) to Nihon no Keijishihou’ [‘International Crimes (ICC Crimes) and Japanese Criminal Justice’], 1343 Jurist (2007) 67^72, at 69. How Do States Join the International Criminal Court? 249

2. Statute of Limitations and Superior Responsibility Let us consider in this context the significance of statutory limitations and the doctrine of command responsibility ç two issues that cut to the heart of the international criminal law regime. The specter of undercriminalization arises in the first example because the Japanese Code of Criminal Procedure in Article 250 enshrined a statute of limitations. In the case of murder, the stat-

ute of limitations was extended in 2005 from 15 to 25 years (the latter is appli- Downloaded from https://academic.oup.com/jicj/article/7/2/233/902168 by guest on 30 September 2021 cable only to murders committed after the reform came into effect). Interestingly, according to some, Japan adopted the statute of limitations on murder during the Meiji Restoration in an effort to catch up with the development of legal norms and institutions in the West. Paradoxically, the de jure applicability of Article 250 in the event of a domestic Japanese prosecution of international crimes in the 21st century places the country out of step with much of the West. Consider in this context, for example, the UN Convention of the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity.45 For a number of reasons, Japan resolved not to ratify said Convention.46 The existence of Article 250 in Japan’s Code of Criminal Procedure, in other words, poses thorny questions from the vantage point of complementarity. The specter of undercriminalization arises in the second example because, like many other countries, Japan has no criminal provisions for holding superiors or commanders individually responsible for the perpetration of crimes, whether by omission or commission. Although the Rome Statute imposes no obligation on states parties to criminalize the responsibility of superiors or commanders, Japanese lawmakers have repeatedly suggested that the government draft substantive legislation to this effect. In the all-important hearing of the House of Councillors’ Committee on Foreign Affairs and Defense, held on 26 April 2007, Tadashi Inuzuka of the Democratic Party of Japan raised the matter. In response, the government representative pointed out that superiors and commanders can be prosecuted as accomplices under Japan’s Criminal Code and that further criminalization was not desirable because ‘[p]unishment is a sanction that deprives the life, liberty, and property of a human being and should [thus] be used only when it is absolutely necessary’.47 In the eyes of some Japanese observers, governmental and otherwise, the provisions of the Rome Statute on the scope of responsibility exceeded the traditional notion of command responsibility, as developed in the immediate aftermath of World War II. The argument was that Article 28 of the Rome Statute

45 GA Res. 2391 (XXIII), 26 November1968, entered into force11 November1970. 46 For an analysis of the Convention, see H. Fujita, ‘Sensouhanzai oyobi Jindou ni hansuru Tsumi ni taisuru Jikofutekiyou ni kansuru Jouyaku (1968.11.26. Kokurensoukai saitaku fukumu zenbun) no Seiritsu’ [‘Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crime Against Humanity (adopted at GA, Nov. 26, 1968)’], 15 Kanazawa Hougaku (1970) 174 ^ 223. 47 Questions by Tadashi Inuzuka (Democratic Party of Japan), 166th Diet, Committee on Foreign Affairs and Defense, House of Councillors, Record of Proceedings, 26 April 2007. 250 JICJ 7 (2009), 233^256 stipulated that not only military commanders but also civilian superiors could be held individually responsible for the acts or omissions of their subordinates. Unease with the criminalization of superior responsibility invariably complicated the search for appropriate and adequate implementing legislation in Japan.48 The palpable distrust of the doctrine of command (and now superior) responsibility in Japan harks back, in part, to the treatment of Japanese military commanders before the International Military Tribunal for the Far East Downloaded from https://academic.oup.com/jicj/article/7/2/233/902168 by guest on 30 September 2021 (IMTFE). According to many Japanese as well as international observers, the IMTFE meted out ‘victor’s justice’.49 The introduction into the post-World War II proceedings of the doctrine of command responsibility is believed by some to have contributed to this perceived outcome.50 But let us return to Japan’s relationship with the ICC. Generally speaking, Articles 1^4bis provide the jurisdictional rules of the Japanese criminal law. Outlining the imperatives governing the implementation of international treaties related to the suppression of crimes in Japan, one author recently suggested that the Government of Japan has traditionally embarked on an expansion of its criminal jurisdiction only when so obligated explicitly by international treaties.51 Leaving aside the question as to whether or not the Rome Statute imposes, implicitly or otherwise, obligations upon states to implement substantive legislation, let us examine the empirical record. Interestingly, it has recently been shown that Japan has a veritable habit of criminalizing ç by way of international agreements ç conduct and thus introducing novel crimes into the country’s ostensibly integer criminal code. Evidence can be gleaned, for example, from the domestic criminalization of money laundering, the domestic criminalization of bribery of international and foreign public officials, and the domestic criminalization of human trafficking.52 In order to enter into international treaties for the suppression of transna- tional terrorism, the Japanese government did in fact draft and enact

48 See Mayama, supra note 26, at 35. 49 R.H. Minear, Victor’s Justice: The Tokyo War Crimes Trial (Princeton: Princeton University Press, 1971). See also Y. Totani, TheTokyoWarCrimesTrial:ThePursuitofJusticeintheWakeofWorld War II (Cambridge: Harvard University Press, 2008); R. Cryer and N. Boister, The Tokyo International Military Tribunal (Oxford: Oxford University Press, 2008). 50 One the related issue of ‘superior orders’, see, most importantly, the scholarship of Y. Kita and H. Sato, notably Y. Kita, ‘Dainiji Taisen Go ni okeru ‘‘Joukan Meirei no Kouben’’ wo meguru Giron no Tenkai’ [‘Discussions on the Issue of Superior Orders after the Second World War’], 21 Boueihou Kenkyu (1997) 105^121; H. Sato, ‘Nurunberugu Kozoku Saiban to Joukan Meirei no Koben: ‘‘Nurumberugu Gensoku’’ no Douyou’ [‘Post-Nuremberg Trials and Superior Orders: Unstable ‘‘Nuremberg Principles’’’], 83 Boueidaigakukko Kiyou (2001) 153^176. 51 K. Ozaki,‘Nihon ni okeru Sensouhanzai no Shobatsu ni tsuite’ [‘Punishment of War Crimes in Japan’], in S. Murase and A. Mayama (eds), Buryokufunsou no Kokusaiho [International Law of Armed Conflict] (Tokyo: Toshindo, 2004), 828^860, at 830^832. 52 K. Takayama, ‘Actual Problems of Trans- and International Criminal Law in Japan’, 1 Kyoto Journal of Law and Politics (2005) 63^78, at 75^77. How Do States Join the International Criminal Court? 251 substantive legislation for the punishment of terrorism-related crimes and even amended its Criminal Code. In 1971, for example, Japan enacted two new laws for the domestic punishment of international crimes when it ratified the Convention for the Suppression of Unlawful Seizure of Aircraft as well as the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation. Moreover, in 1980, when Japan ratified the Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents and the Convention against the Taking Downloaded from https://academic.oup.com/jicj/article/7/2/233/902168 by guest on 30 September 2021 of Hostages, Japan amended the Criminal Code, creating jurisdiction for the domestic prosecution of foreigners who committed acts outside of Japan. One scholar commented on this surprising contrast in no uncertain terms: ‘It is a contradiction to be prudent in punishing severe violations of human rights on the basis of the ICC Statute on [the] one hand and to be propulsive in criminalizing less severe acts on the basis of international agreements on the other.’53 Interestingly, this position seems to have initially been championed even by MOFA. Under the leadership of Naoko Saiki, who headed MOFA’s Division of International Legal Affairs Bureau after the Rome Conference on the Establishment of the ICC, for example, there seems to have existed a consensus that substantive legislation was needed if Japan was intent on acceding to the Rome Statute. During a round table talk convened by Jurist, arguably the country’s most influential law review, Saiki stressed the importance of revising Japan’s Criminal Code in order to the respond to the challenge of complementarity. According to her interpretation of Articles 1 and 17 of the Rome Statute, Japan had to prepare not only procedural legislation but substantive legislation as well.54 This initial enthusiasm for substantive legislation notwithstanding, the Government of Japan, as we have seen, chose not to amend its Criminal Code as part of the 2007 implementation of the Rome Statute.55 It acknowledged, however, that certain international crimes delineated in the Rome Statute are not currently punishable under Japanese law. In these instances, the Government of Japan resolved to surrender any accused to the ICC pursuant to procedural legislation adopted in 2007.56 It is to this legislation that we now turn.

53 Ibid., at 78. 54 As Saiki pointed out: ‘[W]e have a problem of substantive legislation in addition to the problem of procedural legislation ::: when we find someone who committed a crime that falls into the subject matter jurisdiction of the ICC, the Rome Statute, first of all, requires Japan to prosecute and conduct a trial regardless of his/her being Japanese. Our legal system must be able to do this. For this purpose, I think it is necessary to enact a new law or to revise existing legislation.’ See N. Saiki, ‘Zadankai, Nipponhou no Kokusaika’ [‘Round Table: Internationalization of Japanese Law’], 1232 Jurist (2002) 6^35, at 11. Translation by the authors. 55 166th Diet, Committee on Foreign Affairs, House of Representatives, Record of Proceedings, 28 March 2007; Committee on Foreign Affairs and Defense, House of Councillors, Record of Proceedings, 26 April 2007. See also Nakauchi, supra note 34, at 3^11. 56 166th Diet, Committee on Foreign Affairs, House of Representatives, Record of Proceedings, 28 March 2007; Committee on Foreign Affairs and Defense, House of Councillors, Record of Proceedings, 26 April 2007. 252 JICJ 7 (2009), 233^256

B. Procedural Legislation The adoption of Japan’s Act on Cooperation with the ICC was far less conten- tious than the deliberations about the advantages ç and disadvantages ç of adopting new substantive law. The Act on Cooperation established the legal bases for the fulfillment of the obligations set out in Part 9 of the Rome Statute for both the ‘Surrender of Persons for Trial’ (Article 89 of the

Rome Statute) and ‘Cooperation Other Than Surrender’ (Article 93 of the Downloaded from https://academic.oup.com/jicj/article/7/2/233/902168 by guest on 30 September 2021 Rome Statute).57 The 2007 Act consists, inter alia, of provisions for (i) the transfer of evidence, witnesses, and documents (Articles 6^18 of the Act on Cooperation with the ICC); (ii) surrender proceedings (Article 19^37); (iii) mon- etary and material sanctions (fines, forfeiture) imposed by the ICC (Articles 38^48); and (iv) cooperation through the International Criminal Police Organization (Article 52). The second objective was to establish so-called offences against the administration of the ICC, i.e. (i) destruction of evidence, intimidation of and tampering with witnesses (Articles 53^56 of the Act on Cooperation with the ICC); (ii) false testimony (Article 57); (iii) bribery of an ICC official (Articles 58^63); and (iv) interference with and intimidation of an ICC official (Article 64). Whether it concerns the surrender of persons or the submission of the evidence, Part 9 of the Rome Statute conceives of mutual assistance in criminal matters in terms of a ‘state-to-state’ relationship. However, as recent jurisprudence and scholarship have shown, cooperation with the international tribunals, including the ICC, is to be distinguished from conventional concep- tions of mutual assistance in criminal matters.58 In this context, ‘vertical’ and ‘horizontal’ cooperation are to be contrasted. According to one author, a key feature of vertical cooperation is ‘lack of reciprocity’.59 Instead of amending its existing laws regarding extradition and mutual assistance in criminal matters, the Government of Japan decided to enact entirely new legislation. This came in recognition of the fact that vertical cooperation with the ICC had to be distinguished from mutual assistance, as conventionally understood. Turning to the provisions of the 2007 Act, a request for vertical cooperation from the ICC would be received by MOFA and would then be transmitted to the MOJ. The MOJ would then instruct the relevant authorities to respond to the request. In the event of a surrender request, the MOJ would call upon the

57 Y. H igas hi z awa, Kokusaikeijisaibansho: Hou to Jitsumu [The International Criminal Court: Law and Practice] (Tokyo: Akashishoten, 2007), 305^318; R. Matsumoto, ‘Kokusaikeijisabiansho ni taisuru Kyouryoku tou ni kansuru Houritsu no Gaiyou’ [‘An Overview of the Act on the Cooperation with the ICC’], 60 Houritsu no Hiroba (2007) 19^26; K. Sugahara, ‘‘‘Kokusaikeijisaibansho ni kansuru Roma Kitei’’ no Teiketsu to ‘‘Kokusaikeijisaibansho ni taisuru Kyouryoku tou ni kansuru Houritsu’’ no Seiritsu’ [‘Accession to the ‘‘Rome Statute of the ICC’’and Enactment of the ‘‘Act on the Cooperation with the ICC’’’], 1341 Jurist (20 07) 109 ^ 115. 58 Judgement on the Request of the Republic of Croatia for Review of the Decision of the Trial Chamber II of 18 July 1997, Blas› kic¤ (IT-95-14-AR108bis), Appeals Chamber, 29 October 1997, x 47. 59 G. Sluiter, International Criminal Adjudication and the Collection of Evidence: Obligations of States (Antwerpen: Intersentia, 2002), 88. How Do States Join the International Criminal Court? 253

Tokyo High Court to review the request. The MOJ would submit all documenta- tion and decisions to MOFA, and from there the government’s response would be transmitted to the ICC. At first glance, the procedure just chronicled is simi- lar to the procedure for administering mutual assistance. In fact, the 2007 Act makes repeated references to Japan’s existing law of mutual assistance. However, important differences remain. For example, in the event that the Tokyo High Court would be called upon to review a surrender request, Article 19 (1) of the Act on Cooperation with the Downloaded from https://academic.oup.com/jicj/article/7/2/233/902168 by guest on 30 September 2021 ICC prevents the High Court from turning down such a request on the grounds of double criminality. Although MOFA has a right to ‘consult’ with the ICC in these matters (Article 5 of the Act on Cooperation with the ICC), there is no provision that entitles the Ministry to challenge the determination of the ICC that formed the basis of the request for surrender. The procedural legislation is aimed at facilitating vertical cooperation with any and all ICC requests. Consequently, the discretion normally accorded to MOFA when considering state-to-state mutual assistance requests was drastically curtailed. In other words, the 2007 Act established an entirely new framework for international cooperation. This framework is best described as being ‘vertical’ in nature.60 Some Japanese scholars have suggested that the peculiar cooperation regime that the 2007 Act introduced might allow the Government of Japan to address the aforementioned problem relating to Article 250 of the country’s Code of Criminal Procedure. As we have seen, Article 250 provides for a statute of limitations that would also apply to the domestic prosecution of international crimes in Japan. This stands in contrast to Article 29 of the Rome Statute as well as the UN Convention of the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity. Under the conventional (horizontal) cooperation regime, the expiration of the limitation period would be a legitimate ground for the refusal of mutual assistance. Now, it could be argued that the new (vertical) cooperation regime offers a solution to this potential Japanese dilemma since an ‘exceptional obligation’ arises in instances where mutual assistance requests are vertical in nature (which distinguishes them from state-to-state mutual assistance requests).61 It is important to emphasize that in cases of the surrender of persons and cooperation other than surrender, the 2007 Act provides for hierarchical mutual assistance whenever the request relates to offences against the administration of justice and corresponding substantive crimes enshrined in Articles 53^64. For example, when a surrender request relates to any of the aforementioned, the traditional grounds for refusal such as a double criminality or non-extradition of nationals would still apply (Article 19(2)). This reflects the Japanese interpretation of the Rome Statute. According to the Government of Japan, the Rome Statute explicitly

60 For a comparative perspective, see B. Broomhall and C. Kre,‘Implementing Cooperation Duties Under the Rome Statute: A Comparative Synthesis’, in C. Kre, B. Broomhall, F. Lattanzi and V. Santori (eds), TheRomeStatuteandDomesticLegalOrders(Vol. II, Baden-Baden: Nomos, 2005), at 515^543. 61 K. Takayama, ‘Kokusaikeijisaibansho no Keijitetuzuki no Tokushitsu’ [‘Characteristics of ICC Criminal Procedure’], in Murase and Ko, supra note 27, at 209^210. 254 JICJ 7 (2009), 233^256 distinguishes between ‘crimes of the most serious concern to the international community as a whole’ (Article 5(1) of the Rome Statute) and ‘offences against the administration of justice’ (Article 70(1) of the Rome Statute). Whereas in the opinion of the government the gravity of ‘Article 5 violations’ justifies the creation of a vertical cooperation regime, the ordinary nature of ‘Article 70 violations’ vitiates the argument for a special cooperation regime. Hence, the Government of Japan insisted that the pre-existing horizontal cooperation regime should continue to be operational as far as the prosecution of offences Downloaded from https://academic.oup.com/jicj/article/7/2/233/902168 by guest on 30 September 2021 against the administration of justice is concerned.

5. Conclusion In this article we analysed the legislative implications of treaty accession in Japan, taking the Rome Statute of the International Criminal Court as an example. By reconstructing in some detail ç for the first time in any language ç the country’s long awaited accession to the Rome Statute of the International Criminal Court in 2007, we have sought to shed light on the manifold challenges of achieving complementarity with what constitutes one of the most lauded as well as controversial international instruments ever designed.62 Yet we set out not only to clarify what was murky in the existing literature on Japan’s transition to ICC membership, but also to illuminate, albeit en passant, the impact of international law on Japanese law more generally.What, then, has our analysis revealed? First, we have shown that although international law is accorded high formal authority in Japan, the reception thereof continues to be slow. What one might term an aversion to the legal incorporation ç or judicial invocation ç of international norms has been particularly pronounced in the areas of international humanitarian law, international human rights law, and international criminal law. This is not entirely surprising considering that a general unfamiliarity with these branches of international law ç two of which are of relatively recent pedigree ç exists on the part of Japanese lawyers. None of this is to say that international law has no salience in Japan, merely that the effects of international law are primarily indirect. In the context of the

62 The existing literature is scant. Representative examples ç in addition to the Japanese and German language sources already cited ç are: M. Inazumi, ‘Japan and the ICC: A Reflection from the Perspective of the Principle of Complementarity’, in I. Boerefijn and J. Goldschmidt (eds), Changing Perceptions of Sovereignty and Human Rights: Liber Amicorum Cees Flinterman (Antwerpen: Intersentia, 2008), 417^435; M. Noguchi, ‘Criminal Justice in Asia and Japan and the International Criminal Court’, 6 International Criminal Law Review (2006) 585^604; and K. Lukner, ‘Zwei Stolpersteine und eine Hu« rde auf dem Weg nach Den Haag: Japan wird Mitglied des International Strafgerichtshofs’, 105 Asien,91^103;KyoArai,AkiraMayamaand Osamu Yoshida, ‘Japan’s Accession to the ICC Statute and the ICC Cooperation Law’,51 Japanese Yearbook of International Law (2008), 359^383; Kanako Takayama, ‘Participation in the ICC and the National Criminal Law of Japan’, ibid., 384^408; and Japan’s Entry to the International Criminal Court and the Legal Challenges It Faced’, ibid., 409^426. How Do States Join the International Criminal Court? 255

Japanese ‘non-debate’ over the ratification of (and later accession to) the Rome Statute, this becomes significant, for it gives us a sense of the intellectual background against which the reluctant implementation eventually unfolded. It alerts us to the importance of taking seriously not just the legal but also the social dimensions of international law’s reception ç in Japan and elsewhere. Second and related, we have demonstrated in our analysis that unlike most other countries who joined the ICC community as States Parties, Japan had to overcome particularly formidable constitutional and legislative hurdles before Downloaded from https://academic.oup.com/jicj/article/7/2/233/902168 by guest on 30 September 2021 membership in the permanent international court could become a possibility. What makes the Japanese case unique is the fact that the implementation of the Rome Statute required a renegotiation, in key respects, of the fundamental principle upon which Japan’s post-World War II foreign and domestic policy rested, namely the renunciation of war and the culture of antimilitarism that is enshrined in Article 9 of the Constitution. As has been noted, ‘throughout the postwar era, leftist opposition parties such as the Japan Socialist Party (JSP) and the Japan Communist Party (JCP) strongly objected to enacting [emergency] legislation, arguing that it represented a step toward the nation’s remilitarization’.63 By century’s end, the post-war consensus had given way to a more differen- tiated way of thinking, not least due to a perceived threat emanating from North Korea. According to a 2003 opinion survey conducted at the behest of Yomiuri Shimbun, one of Japan’s leading newspapers, 48% of those polled expressed support for the adoption of emergency legislation, with only 21% of respondents opposed. Even more indicative of a normative shift perhaps was the fact that all of Japan’s five leading newspapers ç even the liberal, outspo- ken Asahi Shimbun ç advocated a legislative turn.64 Thus with the adoption, after many years of controversy, of emergency legislation ç or Yujihosei ç in 2004, and Japan’s subsequent and long-delayed accession to the 1977 Additional Protocols of the 1949 Geneva Conventions, the government of then Prime Minister Junichiro Koizumi created for itself the legal space necessary for embarking in earnest on the path to membership. Because the constitutional and legislative intricacies of Yujihosei and the pre- history thereof is rarely understood outside of Japan, we have herein dwelled on the topic at some length. It is our hope that international observers of all things Japanese will be aided in their research and writing on this country’s complex legal history. Third, we hope to have provided a more nuanced ç and balanced ç discussion than is available elsewhere of the drafting of implementing legislation, notably of the official reasoning that led the Government of Japan to embrace an ‘ordinary crimes approach’ in order to comply with the principle of complementarity in Articles 1 and 17 of the Rome Statute.While we are not unsympa- thetic to the adoption of the ‘ordinary crimes approach’ per se, we found

63 T. Shinoda, Koizumi Diplomacy: Japan’s Kantei Approach to Foreign and Defense Affairs (Seattle: University of Washington Press, 2007), at 99 and 112. 64 As reported in Shinoda, ibid., at 112. 256 JICJ 7 (2009), 233^256 wanting some of the arguments put forth by MOFAand other ministries as to why no substantive legislation was required for Japan’s accession. In particular, we are not persuaded that Japan’s response to the challenge of complementarity is entirely in keeping with the demands of the Rome Statute. We are of the opinion, for example, that prosecuting genocide as ‘multiple homicide’ ç the strategy favoured by the Government of Japan ç is not commensurable with the purpose of the Rome Statute because it disregards the important fact that the codification of international crimes ç genocide, crimes against humanity, and war Downloaded from https://academic.oup.com/jicj/article/7/2/233/902168 by guest on 30 September 2021 crimes ç is, unlike the codification of domestic crimes, aimed at safeguarding not only the interests of individuals, but also the interests of the international community as a whole. Furthermore, this implementation strategy risks subjecting a narrower range of conduct to punishment in Japanese courts than the majority of delegates at the 1998 Rome Conference concerning the establishment of the ICC arguably intended. That our finding is not frivolous is borne out by the fact that some Japanese government representatives had (internally) called for such legislation even prior to the 2007 accession decision, and also by the fact that, upon the adoption of the implementing legislation, Japanese legislators qua law insisted that the Government of Japan resume the exploration of an amendment to the Criminal Code so as to place the prosecution of international crimes on a soun- der footing at home. In a Resolution adopted on 26 April 2007 by the Committee on Foreign and Defense Affairs in the House of Councillors, Japanese Members of Parliament resolved that the Government of Japan ‘should make a faithful effort’ to continue to examine whether any and all international crimes set out in the Rome Statute are punishable under Japan’s Criminal Code.65 Totheextentthattheyarenot,theDietcalleduponthe Government of Japan to consider seriously the drafting of additional legislation. Notwithstanding our occasional critique in this article, Japan’s accession to the Rome Statute undoubtedly marks an important step in the development of the ICC. Regardless of the circumstances of Japan becoming a State Party, its representation in The Hague ç as well as in the Assembly of States Parties ç ensures that the ICC moves ever closer to becoming a truly international organization.

65 166th Diet, Committee on Foreign Affairs and Defense, House of Councillors, Record of Proceedings, 26 April 2007.