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Keynote Address by Ichiro Komatsu, Ambassador of Japan to the Swiss Confederation

ICC Seminar at ITC Maurya Seraton Hotel,
New Delhi, India on 18 March, 2009

H.E. Prof. Dr. Bin Mohamad, Secretary-General of the AALCO, H.E. Mr. Narinder Singh, President of the AALCO, Hon'ble Judge Fumiko Saiga of the ICC, Excellencies, ladies and gentlemen,

I am honored to be here with you today at this seminar on the International Criminal Court jointly organized by the Government of Japan and the AALCO. It is a great privilege to have this opportunity to speak about Japan's accession to the ICC, Japan's contributions to the ICC, and other experiences from the viewpoint of the Government of Japan.

The AALCO is a permanent international organization which was established in New Delhi in 1956 as an outgrowth of the Bandung Conference held in Indonesia in 1955. It has had a significant influence in the Asia-African region. In February 2008, the AALCO signed a memorandum of understanding with the ICC with the objective of promoting mutual interests. It thus seems to be timely that this seminar led by the AALCO is being held in New Delhi.

In my former incarnation as Director-General of the International Legal Affairs Bureau at the Ministry of Foreign Affairs, I was in charge of the AALCO, and it was during this time that Japan acceded to the ICC. From this perspective as well, it is a great pleasure for me to be able to attend and to speak at today's seminar.

(Significance of the establishment of the ICC)

The International Criminal Court, the first permanent international court on criminal matters, was established in 2002 with the objective of prosecuting and punishing individuals who committed the most serious crimes of concern to the international community, such as genocide and crimes against humanity. Since World War II, a number of international courts have been created to prosecute and punish individuals. These include, firstly, military tribunals such as the Nuremberg Tribunal (1945) and the Tokyo Tribunal (1945); secondary, special tribunals based on UN resolutions, such as the International Criminal Tribunal for the former Yugoslavia (1993) and the International Criminal Tribunal for Rwanda (1994); thirdly, special tribunals based on agreements between the United Nations and interested countries, such as the special tribunals for East Timor (2000), Sierra Leone (2002), Cambodia (2006), and Lebanon (2007). All of these, however, were ad hoc tribunals. The establishment of the ICC as a permanent court is aimed at directly prosecuting and punishing individuals who committed the most serious crimes of concern to the international community as a whole in accordance with international law, and doing so without going through special procedures such as UN resolutions or concluding agreements between the United Nations and interested countries. This is a positive step by the international community toward putting an end to impunity for the most serious crimes in accordance with the universal value of the rule of law. I heard that members of the Indian Academy of International Law and other international law scholars would be in attendance today. Universalization of the Rome Statute will encourage certain new changes to the traditional perspective of international law, which fundamentally considers states and international organizations as main legal personalities, and in this regard, I hope that this seminar will offer some interesting insights from an academic perspective as well.

(Japan's accession to the ICC)

The Government of Japan deposited its instrument of accession to the Rome Statute to the UN Secretary-General on July 17, 2007, and Japan officially became a state party to the ICC on October 1 of the same year. July 17 has been made "World Day for International Justice" in commemoration of the adoption of the Rome Statute at the UN diplomatic conference in Rome on that day in 1998. The Government of Japan, even prior to the establishment of the ICC, has consistently supported the idea to strengthen the rule of law in the international community in order to eradicate and prevent serious criminal acts such as genocide, crimes against humanity, and war crimes, which are of concern to the international community as a whole.

Japan's consistent cooperative approach to the ICC is based on the three major objectives: (1) preventing the most serious crimes which are of concern to the international community as a whole, (2) strengthening the rule of law in the international community, and (3) achieving more universality of the ICC.

I would first like to talk about Japan's cooperation in preventing serious crimes which are of concern to the international community as a whole. It is extremely important that we establish an international judicial system that ensures punishment for persons who committed genocide and other serious crimes which are of significant concern to the international community as a whole. Currently 108 states have concluded the Rome Statute. Although major countries such as the United States, Russia, and China have not yet concluded the Statute, the number of states parties to the ICC has been increasing in Europe and Africa. I hope the number of states parties will rapidly grow in the Asian region as well. Since the end of World War II, Japan has placed great importance on the observance of international humanitarian law and has concluded the Geneva Conventions, Additional Protocols to the Geneva Conventions, and so forth. It seems that Japan's accession to the ICC was a sort of culmination of this series of steps. Japan's accession enables us to support ICC activities from within and to promote further international cooperation in the area of international justice.

Secondly, since the end of World War II, Japan has consistently sought the peaceful settlement of disputes from the perspective of the rule of law in the international community. In the field of international law, which is premised on a horizontal structure of sovereign states, there are difficulties in discussing "the enforcement of law" in the same sense as that in domestic law, which is premised on the existence of a central authority. Thus, it is more realistic to discuss "compliance with law" in terms of ensuring that the legal norms are being observed. Based on this perspective, Japan made a declaration to accept the compulsory jurisdiction of the International Court of Justice in 1958, the principal judicial organ of the UN, and has supported the judicial activities of the ICJ. Japan also has utilized the International Tribunal for the Law of the Sea (ITLOS) and the World Trade Organization (WTO) as the dispute settlement bodies in order to seek a peaceful solution for international disputes. The dispute settlement systems for resolving disputes between States such as the ICJ, ITLOS, and WTO, are to use the objective criteria, namely international law, render decisions or reports, and implement them with the compelling force stipulated in the respective legal system. These dispute settlement systems are different from the system of the ICC where individuals would be tried if they committed serious crimes. Nevertheless, these courts play a similar role in that they solve disputes and legal questions that occur in the international community by objectively applying the legal norm that are widely accepted in the international community. Japan's accession to the ICC, once again, both internally and externally, demonstrated its consistent approach of aiming to strengthen the rule of law in the international community.

Thirdly, I will touch upon achieving more universality of the ICC. The accession to the ICC by more countries would undoubtedly enhance the role of the ICC as an important guardian of international humanitarian law and the law of international human rights. It seems that the universality of the ICC will be enhanced by more countries' joining the ICC and by supporting the ICC in terms of both financial and human resources.

(Steps leading toward Japan's accession to the ICC)

In July 2002, the Rome Statute entered into force and the ICC was thus established. Since Japan became an official member of the ICC in October 2007, Japan's accession to the ICC was realized about five years after the Rome Statute entered into force. During this time, the Government of Japan examined the need to join the ICC and the issues to be overcome from various angles at the practical level. Specifically, the major issues for examination involved: (1) the relationship between serious crimes in the Rome Statute and national law, (2) the necessary legislative proceedings for cooperating with the ICC, and (3) financial issues.

The most important issue for examination was the relationship between the obligations under the Rome Statute related to the most serious crimes and the obligations under the national laws to ensure the implementation of treaty obligations. Immediately after the Rome Statute was adopted, deliberations began on whether it would be necessary to make some adjustments to national laws in order to fulfill the obligations of the Rome Statute. In joining the ICC, the United Kingdom, Germany, the Netherlands, Canada, and other countries made new legislations by which all the types of serious crimes stipulated in the Rome Statute are criminalized. Meanwhile, France, Italy, and other countries did not make new legislation for criminalizing those crimes under national law as their existing laws were considered sufficient. The understanding of the Government of Japan was that criminalization under national law of each and every type of crimes under the Rome Statute is not an obligation under the Rome Statute, and thus it is left to each state party to decide on whether new legislation for criminalizing those crimes is required. As all of you know, the principle of complementarity is an important pillar of the Rome Statute. First of all, there is a broad principle that states parties themselves should first and foremost endeavor to investigate and prosecute individuals who committed the most serious crimes in the Rome Statute. Only if this is not possible, does the ICC intervene in order to ensure that the crimes do not go unpunished. Under this basic premise, the Government of Japan closely studied and examined the types of core serious crimes included in the Rome Statute and the types of crimes stipulated in Japan's existing Penal Code and so forth. It was found that the serious crimes targeted by the ICC could be punished by Japan itself with its existing Penal Code and relevant codes, with the exception of some extremely peripheral acts. These remaining peripheral acts will in any way fall under the jurisdiction of the ICC in accordance with the principle of complementarity, and therefore, it was concluded that there would not be a need for new legislation for criminalizing those acts to ensure that the crimes do not go unpunished.

The second issue for examination was whether new legislation would be necessary in order to cooperate with the ICC by executing the obligations the under the Rome Statute. (This concerns cooperating such as arresting and surrendering suspects, providing evidence to the ICC and so on) In this regard, although these are not the "core" serious crimes of the Rome Statute, the Statute sets forth "offenses against the administration of justice": for example, destruction of evidence, perjury, threatening or bribing witnesses, bribing officials, etc. (I refer you to Article 70) of the Rome Statute. These crimes were not covered in Japan's Penal Code at the time, so it was decided that a new legislation should be made to newly criminalize them. The Rome Statute obliges state parties to cooperate when the ICC is investigating and prosecuting crimes within its jurisdiction (Article 86). As a result, it was decided that a bill for cooperation with the ICC would be enacted to include the provisions on both the punishment of acts that hinder court operation of the ICC (related to Article 70) and the necessary cooperation with the ICC by the Government of Japan. It took nearly five years to enact the ICC Cooperation Bill, but in February 2007, in conjunction with the Diet's approval of the Rome Statute, the bill was adopted into law by the Diet.

Although it is not a legal issue, the third issue of finances posed an enormous challenge for the Government of Japan. As for contributions by states parties, the Rome Statute stipulates that it adopts the scale of assessments for the UN regular budget as the basis for that of the ICC, but the Statute does not specifically stipulate a ceiling as applied to the regular budget of the UN. With the United States not expected to join the ICC for the foreseeable future, a simple calculation of Japan's scale of assessments would run up to 28% of the total contributions, which would be well over the 22% ceiling for UN scale of assessments. With tight fiscal conditions faced by the Government of Japan, this element could be a major impediment to gaining broad understanding in Japan regarding its accession to the ICC. The Government of Japan sought the understanding of relevant countries so that the same 22% ceiling as in the UN would be applied to the scale of assessments for the ICC. Following difficult negotiations, a resolution was adopted at a session of the ICC's Assembly of States Parties (ASP) in November 2006, partly thanks to the joint initiative of the so-called CANZ States, namely Canada, Australia, and New Zealand, confirming that the ceiling for the UN scale of assessments would also be applied to ICC contributions. In order to push forward this type of effort by the Government, a group of parliamentarians supporting the ICC was formed in the ruling party at the Diet. There were an increasing number of calls for its swift accession to the ICC from opposition parties as well. Public relations efforts by the Ministry of Foreign Affairs and so forth were effective, and an understanding of the ICC activities deepened in the media from a humanitarian aspect. Therefore, the domestic public opinion became increasingly supportive and editorials were released in influential newspapers in favor of accession to the ICC. As a result of these various kinds of support, Japan was finally able to join the ICC in October 2007.

(Japan's contributions to the ICC)

Since its establishment in 2002, the ICC has played an important role in eradicating and preventing the most serious crimes of concern to the international community as a whole and establishing the rule of law in the international community. In light of this important role of the ICC, Japan, since its accession, has been making significant contributions to the ICC in terms of finance and human resources, in addition to playing a constructive role in the development of international criminal law.

I have already talked about Japan's financial contributions, so to avoid repeating myself, I will now speak about Japan's contributions in terms of human resources. Immediately after joining the ICC, Japan nominated Ambassador Saiga, who is present here today, as a candidate for by-election to fill three casual vacancies of ICC judge, which took place in November 2007. Furthermore, at the election of members of the ICC Committee on Budget and Finance (CBF) which also took place in January this year, Japan nominated as a candidate Mr. Iida, an expert in the administration and finance of international institutions. He will take up the position in the CBF from April. Japan intends to ensure the fiscal discipline of the ICC through the important work of the CBF and participate in the efficient operation of the ICC. The number of the Japanese professional staff at the ICC is currently five. This is still insufficient compared to "33 to 45," which would be the appropriate number of staff based on Japan's contribution ratio. However, Japan intends to work to provide human resources for the ICC with a view to increasing the number of the Japanese staff.

(Encouraging Asian countries to join the ICC)

Finally, I would like to touch upon the importance of the accession by Asian countries to the ICC. The current situation is that, compared to Europe, Latin America, and Africa, the number of ICC member states is still small in the Middle East and Asia. The reasons for this may be concerns that by joining the ICC, their nationals would be surrendered to the ICC, or sovereignty such as the country's criminal jurisdiction would be restricted, and worries regarding the administrative burden, including making adjustments to national laws.

Nevertheless, as Judge Saiga and myself have emphasized in my talk today, one of the pillars of the Rome Statute is the principle of complementarity. In other words, there is the fundamental principle that persons who committed the most serious crimes in the Rome Statute will, first of all, be punished by a national court in the state party itself, and if this can be done, there is no obligation to hand over a suspect to the ICC. The significance of the Rome Statute, as Judge Saiga has emphasized, is building a network of cooperation between the states parties and the ICC, in order to ensure that there is no safe haven anywhere in the world for persons who committed serious crimes such as genocide. Setting up a network in the international community for preventing these suspects from going unpunished will serve as the greatest deterrent for these horrendous crimes.

I would be extremely delighted if the experiences of Japan would be of any help or guidance to those contemplating accessions, when it comes to the question of administrative burden including making adjustments to national laws.

Thank you for your attention.

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