[Feature: How to Confront War Crimes] Takashi Kubota: Overview of the International Criminal Court (ICC) — Toward Strengthening the ICC System

Image: International Criminal Court (ICC) (The Hague, Netherlands) [From Wikimedia Commons]

The International Criminal Court (ICC) is the world's first permanent international criminal tribunal. The ICC has become well-known in Japan as the international organization that issued arrest warrants for Russian President Putin and Israeli Prime Minister Netanyahu, and as the international court where Japanese Judge Tomoko Akane serves as the Director. Furthermore, it is common knowledge that the ICC has recently faced significant headwinds, including sanctions imposed by the United States and Russia against ICC staff, including judges.

The ICC was established in The Hague, Netherlands, based on a treaty called the "Rome Statute of the International Criminal Court" (hereinafter referred to as the Rome Statute), which was adopted on July 17, 1998, and entered into force on July 1, 2002. Japan joined the Rome Statute slightly later, on October 1, 2007, becoming the 105th State Party (as of the time of writing, there are 124 States Parties). Since then, Japan has continued to support the ICC financially as the largest contributor of assessed contributions *1. Furthermore, in terms of human resources, Japan has continued to provide personnel, including judges.

The mission of the ICC is to prosecute the criminal responsibility of individuals who have committed four types of crimes: the crime of genocide, crimes against humanity, war crimes, and the crime of aggression. These four crimes within the ICC's jurisdiction are defined in the Rome Statute as "the most serious crimes of concern to the international community as a whole," and due to their gravity, they are also referred to as "core crimes."

In addition to core crimes, there are various other international crimes regulated by international law (various treaties and customary international law), such as piracy, terrorism, human trafficking, torture, enforced disappearance (abduction), international drug crimes, organized crime, and hijacking. However, core crimes possess a characteristic that these others do not: they have direct punishability under international law. In short, regarding core crimes, international law (such as the Rome Statute) can be directly applied in an international tribunal (such as the ICC) to pursue individual criminal responsibility. In contrast, while responses vary by country, other international crimes are basically prosecuted and punished by each country based solely on its own domestic laws.

In this way, the direct application of international law in an international tribunal to prosecute and punish crimes under international law is sometimes called the "direct enforcement" of international criminal law or international penal power. Conversely, applying international law after incorporating it into domestic law (indirectly, so to speak) is called "indirect enforcement." However, what must not be overlooked here is that core crimes can be prosecuted and punished not only through direct enforcement by international criminal tribunals like the ICC but also through indirect enforcement—that is, by the hands of the criminal justice agencies of individual countries. In fact, this is a fundamental premise of the Rome Statute. Specifically, according to the Preamble and Article 1 of the Statute, the ICC is "complementary to national criminal jurisdictions," and it is primarily intended that individual countries prosecute and punish core crimes (the so-called principle of complementarity). On the other hand, the ICC can only exercise jurisdiction if a state is found to be "unwilling or unable genuinely" to carry out the investigation or prosecution of core crimes. To make such an ICC system function organically, it is essential for countries to develop legislation for punishing core crimes. Indeed, many States Parties to the Rome Statute amended existing criminal codes or enacted special laws upon ratification.