Japan’s recent announcement that it intends to join the Rome Statute, the international treaty that established the International Criminal Court, came as good news for ICC Judge Hans-Peter Kaul.
The court was set up in The Hague, Netherlands, under the statute in 2002 to deal with cases of genocide, crimes against humanity and war crimes committed by individuals, but Japan had made no clear gesture about joining it until recently.
The 63-year-old president of the ICC’s Pre-Trial Division expressed his expectation during a recent visit to Tokyo that the accession of Japan could lead to the overall strengthening of the court, saying it would “help prevent catastrophes and strengthen the rule of law with regard to these crises.”
Kaul was deeply involved in the establishment of the court as head of the German ICC delegation and as one of the first 18 judges assigned to the court in 2003. He was re-elected this year for a second term, which lasts until 2015.
He said Japan’s accession would increase the Asian presence at the court, which he says “is a little bit underrepresented.”
Asian states make up 12 of the 103 State Parties, which are predominantly European and African. Asian members include South Korea, Cambodia and Mongolia but others, including China, Vietnam and the Philippines, remain nonmembers.
“All these Asian countries, they are looking with interest at the attitude and role of Japan. . . . They follow very attentively what Japan does, and it may encourage them to follow if Japan becomes a member,” he said.
The United States meanwhile refuses to join, arguing that American soldiers might be indicted for politically motivated reasons. Russia also has not signed.
The ICC is an independent permanent court that has jurisdiction over cases that occurred after July 1, 2002, in which the accused is a national of a State Party, the crime was committed on its territory or the U.N. Security Council has referred the situation to the prosecutor of the ICC.
The court can only exercise its jurisdiction over cases if the state responsible for investigation and prosecution is unable or unwilling to deal with the situation, thus being known as a “court of last resort.”
Four cases currently pending before the court relate to situations in Congo, Uganda, Central African Republic and Sudan. In the Congo case, a militia leader became the first person last year to be arrested under a warrant issued by the court for allegedly committing the war crime of using child soldiers.
Under the statute, member states will hand over the suspect as well as evidence to the ICC for trial. To set such domestic procedures in line with the international treaty, member states amend their criminal procedure laws while some also modify their domestic criminal laws.
Legal experts believe that making amendments to related domestic laws has been one of the main factors that has kept Japan from joining the Rome Statute, even though Tokyo voiced support for it from the start.
But Prime Minister Shinzo Abe made clear in a Diet session in mid-October that Japan would take “firm steps” to join the statute within fiscal 2007.
The Foreign Ministry has made a budgetary request of 1.98 billion yen for contributions to the ICC for the next fiscal year. Deliberation on necessary amendments to domestic laws is planned during the ordinary Diet session that starts in January.
Japan apparently made the decision to join the statute at this time in view of the election of new judges, with Foreign Minister Taro Aso saying, “We want to set a course so that we can send a Japanese judge to the ICC in time for the election of its judges in 2009.”
Philipp Osten, an assistant professor of international criminal law at Keio University in Tokyo, said, “Japan has maintained the tradition of joining international treaties after making perfect amendments to its internal laws.
“But if we do the same thing this time, it would probably take a decade or so until Japan can actually join the statute despite having such strong backing for it already.”
Kaul, who attended a Keio-sponsored international symposium on the ICC, agreed. “The completion of perfect Japanese legislation is, from the viewpoint of the statute, not a precondition for becoming a member,” he said.
“The Rome Statute does not make any prescriptions about what a state should do with regard to its internal legislation. Member states are totally free over what to adjust in their national laws,” Kaul said, citing South Korea, which joined the statute first and introduced legislation later.
Some experts have said that opposition and pressure from the United States, which fears that members of its military could be handed over to the ICC by member states and prosecuted outside the country, have made Japan hesitant to join the statute, but Osten said such pressure is not a strong withholding factor given the existence of the Status of Forces Agreement.
Kaul admitted that the general lack of knowledge about the ICC is a drawback to an easy understanding of the complex institution, and he thus tries to fulfill his role of informing the public by attending conferences and symposiums in nonmember states.
“The ICC can deal with conflict situations which are currently ongoing and can make a contribution to justice, and justice normally contributes to peace and security while the conflict is still ongoing,” he said.
The court has evolved since Kaul took office in 2003, with the number of its staff increasing from about 30 to 700 during the past three years. It is now in a “critical phase of the transition from the organizational buildup to more and more judicial proceedings and more and more judicial work,” he said.
He added that nonetheless it will take a while for the court to be fully consolidated.
“If in 2015 I leave the court, and if I could then look at a court which is functioning smoothly, which is accepted by the international community, which had more member states, which has a number of effective trials and important judgments that would set standards, then I would be happy, and I would regard my time at the court as reasonably successful,” he said. “But in my view, we are not yet there.”