Preparing for an ICC Crisis

Legal analysis / opinion. The views expressed are those of the original author. This republication is shared under CC BY-SA 4.0.

The United States’ sanctions against the International Criminal Court threaten to paralyze the core institution of international criminal justice. If the worst-case scenario became reality, could ICC States Parties fill the enforcement gap? Asian States Parties have so far largely refrained from prosecuting international crimes committed abroad. Japan and South Korea, the region’s two largest financial contributors to the ICC, are particularly well-placed to change that. Yet Japan must first overcome long-standing legal obstacles, while South Korea needs to make use of the laws already at its disposal.

ICC Complementarity, Universal Jurisdiction and Asian States Parties

The ICC system is built upon the principle of complementarity (enshrined in the Rome Statute’s Preamble, Article 1 and Article 17), to which all States Parties subscribe when they ratify or accede to the Statute. Complementarity means that States Parties carry the primary responsibility to address the crimes of genocide, crimes against humanity, war crimes and, if applicable, the crime of aggression. The ICC may step in only if a State with jurisdiction is unwilling or unable genuinely to investigate or prosecute such crimes.

The principle of complementarity does not prescribe how States must organize domestic prosecutions. But States Parties can help fill the resulting enforcement gap if they enable universal jurisdiction for international crimes, as this allows them to prosecute even absent a territorial or nationality link. In this sense, “complementarity represents one aspect of the principle of universality.”

The prospect of an incapacitated ICC raises particular concerns in Asia, where domestic prosecutions of international crimes remain exceptional. The region’s participation in the ICC system is limited to begin with. Leaving aside the Middle East, nine Asian States are currently parties to the Rome Statute: Afghanistan, Bangladesh, Cambodia, Japan, the Republic of Korea (South Korea), the Maldives, Mongolia, Tajikistan and Timor-Leste. China and India remain outside the ICC system. Moreover, a noticeable “Southeast Asian hesitation” toward the Court, the Philippines’ withdrawal and Malaysia’s aborted ICC membership all resulted in a rather limited number of Asian members and illustrate the region’s uneasy relationship with the Court. Meanwhile, the ICC’s first case concerning an Asian head of state, the former President of the Philippines, Rodrigo Duterte, is set to go to trial this month.

No Prosecutions if International Crimes Are Committed Abroad

Grave violations of international humanitarian law are currently happening in Myanmar and may also have occurred in the Cambodia-Thailand border conflict last year. Serious human rights violations, some of which may amount to international crimes, have been reported in Bangladesh. Asian jurisdictions are nonetheless conspicuously underrepresented in the prosecution of international crimes, particularly when filtering for cases based on universal jurisdiction. Such prosecutions are recorded mainly in European, North and South American jurisdictions, with a remarkable concentration in France. The observation that “the future of international criminal law is domestic” therefore requires qualification with respect to Asia.

To be sure, crimes under international law have been prosecuted in some domestic or domestically led proceedings. The Philippines, for instance, had requested the ICC to defer its investigation against Rodrigo Duterte and others, arguing that the Philippine authorities were conducting parallel domestic investigations. The Court, however, found that these were not genuinely carried out (under Article 18 of the Rome Statute). The Court reached a similar conclusion regarding Afghanistan, authorizing the Prosecutor to resume the investigation. Domestic proceedings focused largely on low-level perpetrators, leaving significant gaps in the investigation of higher-level responsibility.

Hybrid proceedings before the Extraordinary Chambers in the Courts of Cambodia concerning crimes allegedly committed by high-ranking Khmer Rouge leaders between 1975 and 1979 concluded in late 2022. The trials led to landmark rulings but were also hampered by continuing disputes between domestic and international staff as well as waning support from the Cambodian government. In Bangladesh, the (domestic) International Crimes Tribunal is conducting trials on charges including crimes against humanity and genocide allegedly committed in the context of the 2024 political violence. The trials face serious criticism due to fair-trial concerns.

Notably, these recent and current proceedings all concern crimes committed within the respective State. By contrast, not a single prosecution of international crimes committed abroad on the basis of universal jurisdiction has been publicly reported from anywhere in Asia. This is likely partly because governments weigh the political costs of expanding prosecutions to external situations. More generally, foreign policy imperatives and risk assessments have remained important factors in the ICC system. Examples include States Parties’ repeated failures to arrest Omar al-Bashir, then President of Sudan, or Mongolia’s more recent failure to execute the ICC arrest warrant against Russian President Vladimir Putin during his state visit in 2024.

Beyond politics, however, universal-jurisdiction prosecutions also require significant resources. Assessed contributions to the ICC budget, which broadly reflect States’ economic capacity, suggest considerable disparities. According to the ICC’s financial statements (for 2024), Japan is the largest contributor among all ICC States Parties worldwide, with an annual contribution of approximately EUR 30 million – well ahead of Germany (approx. EUR 21 million), France (approx. EUR 16 million) and the United Kingdom (approx. EUR 15 million). South Korea is another important contributor to the ICC system, with approx. EUR 9 million annually, just behind Italy (approx. EUR 11 million) and roughly on par with Canada. By contrast, all other Asian States Parties each contribute between approximately EUR 3,500 and EUR 20,000 per year. Japan and South Korea therefore appear particularly well-placed financially to sustain full-fledged universal-jurisdiction prosecutions.

Legal and Prosecutorial Limitations in Japan and South Korea

Japan acceded to the Rome Statute in 2007. Three years earlier, the country had joined the Additional Protocols I and II to the Geneva Conventions and enacted the 2004 Law Concerning the Punishment of Grave Breaches of International Humanitarian Law. The Law criminalized certain grave breaches of international humanitarian law applicable in international armed conflict and extended extraterritorial criminal jurisdiction to such offenses. These legislative steps have been described as “an epoch-making event in the development of the Japanese legal system” that is strongly characterized by Japan’s pacifist post-World War II Constitution (mainly Article 9) and related constitutional-political restrictions.

Serious legal gaps, however, remain regarding genocide and crimes against humanity. Japan is not a party to the Genocide Convention of 1948. While studies have examined the legal implications of accession to the Convention and domestic criminalization of genocide, concrete steps toward either have yet to follow. Acts amounting to genocide must instead be prosecuted under ordinary criminal provisions, such as those criminalizing homicide. Japan takes a similar approach to crimes against humanity: the Japanese government affirms that most such acts would be punishable under existing national criminal law.

It is doubtful, however, whether punishment for ordinary offenses constitutes a functional equivalent to prosecution for crimes under international law. For purposes of complementarity, domestic proceedings need not necessarily reproduce the ICC’s legal characterization of the conduct, as illustrated by the 2013 decision in the Al-Senussi case. Ordinary offenses, however, do not capture what makes these acts international crimes: their commission as part of a widespread or systematic attack against a civilian population in the case of crimes against humanity, or with the intent to destroy a protected group, in whole or in part, in the case of genocide. Convictions for ordinary offenses therefore leave this additional dimension of criminal responsibility unaddressed and lack the ability to communicate the gravity that elevates relevant acts to matters of international concern. Consequently, Japan is currently not well positioned to prosecute genocide and crimes against humanity when they occur abroad.

South Korea ratified the Rome Statute in 2002 and enacted the 2007 Act on the Punishment of Crimes within the Jurisdiction of the International Criminal Court (accessible via the ICC’s Legal Tools Database), enabling national prosecution of genocide, crimes against humanity and, with some variations, war crimes in international and non-international armed conflict.¹⁾ The 2007 Act (Article 3) provides for universal jurisdiction over foreign suspects if they are present in the territory of South Korea. Thus, South Korea’s legal framework is sufficiently prepared for universal-jurisdiction prosecutions of core international crimes and goes substantially beyond Japan’s approach.

But, so far, not a single case has been reported under the 2007 Act. South Korea’s Ministry of Foreign Affairs has nevertheless acknowledged the possibility of crimes against humanity in North Korea, stating that it was “deeply concerned over the ongoing systematic, widespread and gross human rights violations in the DPRK”, explicitly pointing out “the possibility that some cases of forced labor in the DPRK may constitute a crime against humanity of enslavement.” Even enforced disappearances occurring within South Korea (allegedly executed or orchestrated by North Korea) continue to be prosecuted only under the National Security Act rather than as crimes against humanity under the 2007 Act. Despite its more comprehensive legislation, South Korea’s enforcement practice thus favors charges under other domestic laws over charges for international crimes, producing results similar to those in Japan.

The Way Forward

Asian States Parties are called upon to prepare themselves for the worst-case scenario of an ICC paralysis. As one of the financially strongest Asian States Parties, Japan should consider acceding to the Genocide Convention of 1948 and establishing a domestic legal basis to enable prosecutions of genocide and crimes against humanity based on universal jurisdiction. South Korea should consider applying the 2007 Act on the Punishment of Crimes within the Jurisdiction of the International Criminal Court to crimes committed abroad, where appropriate.

Of course, this will have political costs. Strengthening international criminal justice will likely irritate powerful neighbors and, perhaps most importantly, the United States, which is a treaty ally and security provider for both Japan and South Korea. Until recently, both countries were notably absent from several joint statements condemning prior individual sanctions against ICC personnel.

But Japan spoke out when the United States imposed individual sanctions on Judge Tomoko Akane, President of the ICC: the Ministry of Foreign Affairs called the measures “very unfortunate”. In response to the recent institutional sanctions, Japan’s foreign minister joined a statement with his colleagues from Australia, Canada, Denmark, Germany, France, Italy, the Netherlands and the United Kingdom. The ministers stated that they “regretted” the announcement and “strongly disagreed” with it. It should nonetheless be noted that neither South Korea nor any other Asian State Party joined.

Given accelerating geopolitical dynamics in Asia, strategic restraint toward the United States is certainly advisable. At the same time, however, Japan’s recent shift toward participating in joint statements signals cautious political recalculations, perhaps also because of the growing recognition that a long-term erosion of the international rule of law could be especially detrimental in the Asian region.

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Source: Verfassungsblog