As many nations around the world prepare for the arrival of the International Criminal Court (ICC) in July 2003, most Asian nations unfortunately have yet to either sign or ratify the 1998 Rome Statute. Although the Philippines recently introduced legislation aimed at incorporating the Rome Statute into domestic law, Tajikistan, Cambodia and Mongolia remain the only countries in the region to have actually ratified the Statute. East Timor (Timor-Leste) acceded to the Rome Statute on 6 September 2002. While this general lack of enthusiasm for the ICC is cause for concern, the absence of Japanese support for the ICC is particularly disturbing. Japan was actively involved in the Rome Conference and voted in favor of the Rome Statute, yet the government has not indicated when, if ever, it intends to formally accept the jurisdiction of the ICC. In light of Japan's political and economic importance in the Asia-Pacific region, it is essential that Japan ratifies the Rome Statute as soon as possible and encourages other countries to do the same. In order for this to happen, however, there are a number of obstacles - real and imagined - that the Japanese government must first overcome.
To date, the Japanese Ministry of Foreign Affairs has maintained that ratification of the Rome Statute cannot take place until Japan enacts domestic legislation dealing with such issues as the treatment of prisoners of war and the role of Japan's Self Defense Force (SDF). Because Japanese law does not currently provide for domestic prosecution of war crimes, there is concern within the government that should a member of the SDF or some other Japanese citizen be accused of such crimes, Japan would be obliged to hand that individual over to the ICC for indictment. Given that this is a situation the Japanese government is keen to avoid, the passing of emergency legislation is regarded as an essential precursor to ratification of the Rome Statute and participation in the ICC.
According to the Japanese government, emergency legislation will be introduced into the Lower House sometime in the next parliamentary session, so in theory at least the country could be in a position to ratify the Rome Statute before the end of the year. However, judging from the debate that has already taken place over the past few months - both within the ruling Liberal Democratic Party (LDP) and between the LDP and the various opposition parties - it seems likely that such legislation will be highly controversial and even seriously delayed. Since the events of September 11 last year, the Japanese government has become increasingly concerned with issues of security and Japan's international military obligations. As a consequence, parliamentary debate is likely to focus on the future of the SDF and the operation of Article 9 of the Constitution, which specifically renounces the threat or use of force by Japanese forces abroad.
It is, nonetheless, possible to envisage a situation in which Japan could ratify the Rome Statute without first having to confront many of these larger problems. Members of the ruling Liberal Democratic Party (LDP) have argued that the question of ratification can only be considered once emergency legislation has been passed and - if deemed necessary - Article 9 of the Constitution amended. This is not, however, the only option open to the Koizumi government. Interim legislation ratifying and implementing the four Geneva Conventions1 would go some way to providing the Japanese judiciary with the authority to hear cases against Japanese nationals accused of crimes against humanity. The government would also be in a much better position to ratify the Rome Treaty. Once wide-reaching emergency legislation has been agreed, this interim legislation could then be either incorporated or amended as required, without disturbing Japan's commitment to the ICC. By taking such an approach, the Japanese government could avoid the danger of ratification being delayed by a long and potentially divisive political struggle over the form and content of emergency legislation and the future of the SDF.
Leaving aside questions of domestic law and emergency legislation for the moment, there are clearly other concerns behind Japan's reluctance to ratify the Rome Statute. In a press conference on the 19th of April 2002, Justice Minister Mayumi Moriyama indicated that the government was particularly worried that the ICC might undermine Japanese national sovereignty. Such concerns are difficult to understand and even harder to justify. Most international treaties require participating states to surrender some degree of national sovereignty. The fact that Japanese sovereignty may be diminished as a consequence of participation in the ICC is only an argument against ratification if the burdens of treaty membership outweigh the benefits. Given that the overwhelming majority of Japanese citizens are strongly opposed to violence and the use of military force, it is hard to imagine a situation in which Japan would not be willing to surrender accused nationals or members of the SDF to the ICC for indictment. As such, it can be argued that Japan has little to lose in accepting the jurisdiction of the ICC, and much to gain in terms of standing both in the Asian region and in the international community as a whole.
More generally, some members of the Japanese Right appear to believe that ratification of the Rome Statute may lead to the indictment of Japanese citizens for war crimes committed before and during the Second World War. Aside from the fact that under the provisions of the Rome Statute, the ICC has no authority to try previous crimes - specifically those committed before 1 July 2002 - the Prosecutor and other members of the Court are unlikely to accept representations regarding crimes committed decades ago that have already been the subject of previous international hearings. While ratification may lead to a public re-examination of Japan's wartime past, it is highly unlikely that there will be any legal consequences for either living individuals or the Japanese State for past actions. As a consequence, the concerns of the Right must be dismissed as having more to do with a desire to stifle public debate than any principled objection to the establishment of the ICC. By ratifying the Rome Statute, the Japanese people would not only be signaling their abhorrence of crimes against humanity, but also reaffirming their rejection of Japan's military past and the revisionist tendencies of the far Right.
Given that the ICC is scheduled to begin operating sometime in early 2003, it is essential that the Japanese government move quickly to remove the obstacles to ratification. The establishment of the ICC is an historic step towards the creation of a truly international system of justice based on the rejection of violence and a respect for fundamental human rights. By dragging its feet and refusing to ratify the Rome Statute, Japan risks being seen by the rest of the international community as less than fully committed to these ideals.
Furthermore, as one of the most democratic and economically developed countries in the Asia-Pacific region, it is essential for Japan to take a leading role in encouraging other Asian countries - such as China and Korea - to ratify the Rome Statute. Over the coming decades, it is likely that the ICC will become one of the world's most important legal institutions. Unless Japan seizes the moment and gives its full support to the ICC, Japan's reputation as a country committed to international peace and the renunciation of war will be placed in serious jeopardy.
Dr. Benjamin Goold is an Associate Professor of Anglo-American Law in the Faculty of Law, Niigata University (Niigata Prefecture).
For more information please contact: Dr. Benjamin Goold, Niigata University, Faculty of Law, 8050 Ikarashi 2-nocho, Niigata, 950-2181 Japan, ph (8125) 262-6492, e-mail: <bgoold@jura.niigata-u.ac.jp>