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 legisla- tive 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 adop- tion 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 proce- dural 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 interna- tional court could become a possibility. Among other things, the implementation of the Rome Statute required a renegotiation, in key respects, of the fundamental prin- ciple 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 KreÞ, 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 govern- ment’s participation in the adoption of the Rome Statute and its implementa- tion 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 complemen- tarity 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 legisla- tive implications of this and related principles associated with the operation of the ICC. A careful explication of Japan’s attitude(s) towards international crimi- nal 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 pri- marily 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. KreÞ, 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 legis- lative foundations of treaty accession in Japan. Subsequently, we explore a peculiar constitutional challenge pertaining to the ratification and implemen- tation 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) rela- tionships 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.