How Does Japan Cooperate with the International Criminal Court (ICC), and Are There Any Indirect Implications for Japanese Businesses Operating in High-Risk Areas?

Japanese Attorney at Law - Bengoshi L.L.

• 8 min read

The establishment of the International Criminal Court (ICC) marked a significant step towards ending impunity for individuals responsible for the most serious international crimes. As a State Party to the Rome Statute, the treaty that established the ICC, Japan has committed to cooperating with the Court and has enacted domestic legislation to facilitate this. While the ICC's jurisdiction is over individuals, not corporations, the activities of businesses operating in conflict-affected or otherwise high-risk areas can have indirect legal and reputational implications, making an understanding of Japan's relationship with the ICC pertinent for corporate actors.

The International Criminal Court: Mandate and Jurisdiction

The ICC, which began its operations in The Hague, Netherlands, on July 1, 2002, is the first permanent, treaty-based international criminal court established to help end impunity for the perpetrators of:

  1. Genocide (Article 6 of the Rome Statute): Acts committed with intent to destroy, in whole or in part, a national, ethnical, racial, or religious group.
  2. Crimes Against Humanity (Article 7): Widespread or systematic attacks directed against any civilian population, with knowledge of the attack, including acts such as murder, extermination, enslavement, deportation, imprisonment, torture, rape, and persecution.
  3. War Crimes (Article 8): Grave breaches of the Geneva Conventions and other serious violations of the laws and customs applicable in international and non-international armed conflict, when committed as part of a plan or policy or as part of a large-scale commission of such crimes.
  4. The Crime of Aggression (Article 8 bis): The planning, preparation, initiation, or execution, by a person in a position effectively to exercise control over or to direct the political or military action of a State, of an act of aggression which, by its character, gravity, and scale, constitutes a manifest violation of the Charter of the United Nations. The definition and conditions for the exercise of jurisdiction over this crime were adopted at the 2010 Rome Statute Review Conference in Kampala, Uganda, with activation of jurisdiction subject to further state decisions.

Key Jurisdictional Principles:

  • Temporal Jurisdiction: The ICC generally has jurisdiction only with respect to crimes committed after the entry into force of the Rome Statute (July 1, 2002) or, for states joining later, after the Statute's entry into force for that state, unless the state makes a specific declaration accepting jurisdiction for prior periods.
  • Personal and Territorial Jurisdiction: The Court may exercise its jurisdiction if:
    • The alleged crimes were committed on the territory of a State Party or a state that has accepted the ICC's jurisdiction (territorial jurisdiction).
    • The person accused of the crime is a national of a State Party or a state that has accepted the ICC's jurisdiction (nationality jurisdiction).
  • UN Security Council Referrals: The UN Security Council, acting under Chapter VII of the UN Charter, can refer a situation to the ICC Prosecutor, thereby granting the Court jurisdiction even if the state concerned is not a party to the Rome Statute (e.g., the situations in Darfur, Sudan, and Libya).
  • Principle of Complementarity: A cornerstone of the Rome Statute, this principle means the ICC acts as a court of last resort. It will only intervene if national legal systems are genuinely unwilling or unable to investigate or prosecute these serious international crimes. The primary responsibility rests with states themselves.

Japan's Engagement with the ICC and Domestic Implementation

Japan has consistently supported the establishment and functioning of the ICC. It acceded to the Rome Statute on July 17, 2007, and the Statute entered into force for Japan on October 1, 2007.

The Act on Cooperation with the International Criminal Court

To provide a domestic legal framework for fulfilling its obligations under the Rome Statute, Japan enacted the Act on Cooperation with the International Criminal Court (Law No. 35 of 2007), often referred to as the "ICC Cooperation Act" (国際刑事裁判所に対する協力等に関する法律 - Kokusai Keiji Saibansho ni Taisuru Kyōryoku tō ni Kansuru Hōritsu).

This Act outlines the procedures for Japan to respond to various forms of cooperation requests from the ICC, including:

  • Arrest and Surrender of Persons: Procedures for the arrest of individuals subject to an ICC arrest warrant and their surrender to the Court. The Act distinguishes "surrender" to the ICC from traditional "extradition" between states, reflecting the Rome Statute's direct obligations on States Parties.
  • Other Forms of Cooperation (Mutual Legal Assistance): This includes measures such as:
    • Taking evidence and witness testimony.
    • Questioning persons under investigation or prosecution.
    • Service of documents.
    • Facilitating the voluntary appearance of persons as witnesses or experts.
    • Temporary transfer of prisoners to provide testimony or assistance.
    • Identification, tracing, and freezing or seizure of proceeds, property, assets, and instrumentalities of crime for the purpose of eventual forfeiture.
    • Protection of victims and witnesses.
  • Relationship with Domestic Procedures: The Act stipulates that cooperation shall be provided in accordance with Japanese domestic law, while also seeking to ensure that Japan can effectively meet its international obligations under the Rome Statute.

Domestic Criminalization of ICC Crimes

A key aspect of the principle of complementarity is that States Parties should have domestic laws criminalizing the conduct covered by the Rome Statute to enable national prosecutions. While Japan's ICC Cooperation Act facilitates procedural cooperation, the direct criminalization of genocide, crimes against humanity, and comprehensive war crimes as distinct offenses with specific definitions mirroring the Rome Statute within Japan's Penal Code or other domestic criminal statutes has been a subject of ongoing discussion.

Japan has some existing laws that cover conduct that could overlap with ICC crimes (e.g., general provisions in the Penal Code for homicide, assault, kidnapping; laws related to IHL implementation for certain conduct by Self-Defense Forces personnel). However, a comprehensive and explicit domestic legislative framework fully aligning with all the nuances of the Rome Statute's crime definitions (particularly for crimes against humanity and broader war crimes) has been pointed out by some observers and treaty bodies as an area for potential further development to strengthen domestic capacity for prosecution and ensure full complementarity.

Indirect Implications for Japanese Businesses in High-Risk Areas

While the ICC's jurisdiction is explicitly over natural persons aged 18 and above, and not directly over legal entities like corporations, the activities of businesses operating in or connected to high-risk environments (e.g., conflict zones, areas with widespread human rights abuses, failed states) can lead to significant indirect legal, financial, and reputational risks.

1. Risk of Individual Criminal Liability for Company Personnel

Individuals within a company—including directors, officers, managers, or employees—could potentially fall under the ICC's jurisdiction if their actions meet the elements of genocide, crimes against humanity, or war crimes. Article 25(3)(c) of the Rome Statute, for instance, outlines individual criminal responsibility for persons who, for the purpose of facilitating the commission of such a crime, "aids, abets or otherwise assists in its commission or its attempted commission, including providing the means for its commission."

  • Potential Scenarios for Business Involvement:
    • Resource Extraction and Trade in Conflict Zones: If a company's operations (e.g., mining, logging, oil extraction) in a conflict zone are found to knowingly contribute to or benefit from international crimes committed by armed groups or state forces (e.g., by providing revenue that fuels atrocities, using forced labor, or forcibly displacing populations), individuals within the company overseeing or facilitating these activities could face scrutiny.
    • Provision of Goods and Services: Supplying goods (e.g., weapons, dual-use technology, transport) or services (e.g., logistics, private security, financial services) to entities known to be committing international crimes, where such provision significantly contributes to the commission of those crimes.
    • Operations in Occupied Territories or Repressive Regimes: Business activities that are perceived as supporting or benefiting from systematic human rights abuses amounting to crimes against humanity committed by a state or organized group.

It is crucial to note that intent (mens rea) is a key element for establishing criminal responsibility for these serious crimes. However, willful blindness or a conscious disregard of the high probability that one's actions will contribute to crimes can be relevant factors in assessing criminal intent.

2. Heightened Due Diligence Expectations

The international normative framework, particularly the UN Guiding Principles on Business and Human Rights (UNGPs), endorsed by the UN Human Rights Council in 2011, articulates a corporate responsibility to respect human rights. This includes conducting human rights due diligence to identify, prevent, mitigate, and account for how companies address their adverse human rights impacts.

  • In conflict-affected and high-risk areas, this due diligence expectation is significantly heightened and should encompass risks related to IHL violations and international crimes.
  • Failure to conduct adequate due diligence can lead to:
    • Severe Reputational Damage: Being associated, even indirectly, with perpetrators of international crimes or with activities that enable such crimes can devastate a company's global reputation, brand value, and stakeholder trust.
    • Investor Scrutiny and Divestment: Socially responsible investors and ESG (Environmental, Social, and Governance) rating agencies are increasingly scrutinizing companies' operations in high-risk areas and their human rights performance. Links to international crimes can trigger divestment campaigns.
    • Consumer Boycotts and Civil Society Action: Public awareness of corporate complicity in atrocities can lead to consumer boycotts and sustained campaigns by human rights organizations.
    • Difficulties in Accessing Finance and Insurance: Financial institutions and insurers are also becoming more cautious about supporting businesses with inadequate human rights risk management in high-risk zones.

3. Supply Chain Risks

Companies are increasingly held accountable for human rights abuses and links to international crimes not only in their direct operations but also throughout their global supply chains. This requires enhanced transparency and due diligence to ensure that raw materials, components, or products are not sourced from entities involved in or benefiting from such crimes.

4. Operational and Security Risks

Operating in environments where ICC-level crimes are occurring inherently involves extreme security risks for personnel and assets, potential for extortion by armed groups, forced suspension of operations, and entanglement in local conflicts.

5. Sanctions Exposure

Individuals and entities, including businesses, that provide support to regimes or groups responsible for international crimes may also become subject to targeted international sanctions imposed by the UN Security Council or national governments.

Preventive Measures and Best Practices for Japanese Businesses

To navigate these complex risks, Japanese businesses with international operations, particularly in fragile or conflict-affected contexts, should consider implementing robust preventive measures:

  1. Adopt a Strong Human Rights Policy: Formally commit to respecting international human rights and IHL, and embed this commitment throughout the company's operations and business relationships.
  2. Conduct Enhanced Human Rights Due Diligence (HRDD):
    • Implement specific HRDD processes for operations and investments in high-risk areas, tailored to identify and assess risks of direct or indirect involvement in international crimes.
    • This includes thorough contextual analysis of the political, social, human rights, and conflict situation in the operating environment.
  3. "Know Your Business Partner" (KYBP) and Supply Chain Scrutiny:
    • Conduct rigorous due diligence on all local partners, suppliers, contractors, agents, and clients in high-risk regions to identify any links to perpetrators of international crimes or illicit activities.
    • Implement supply chain mapping and traceability initiatives, especially for commodities sourced from conflict-prone areas (e.g., initiatives similar to those for "conflict minerals").
  4. Integrate Findings and Take Action: Ensure that the findings of HRDD are integrated into company decision-making. This should include developing and implementing mitigation strategies, and being prepared to cease or alter activities if risks of contributing to severe human rights abuses or international crimes cannot be adequately managed.
  5. Training and Capacity Building: Provide specialized training for employees (especially those in management, procurement, legal, and operations in high-risk areas) on IHL, international human rights law, business and human rights principles, and the company’s policies for operating responsibly in challenging environments.
  6. Stakeholder Engagement: Engage in meaningful consultation with potentially affected local communities, civil society organizations, international bodies like the ICRC or UNHCR, and other relevant stakeholders to understand local concerns and potential impacts.
  7. Establish Effective Grievance Mechanisms: Create accessible and effective grievance mechanisms for individuals or communities who believe they have been adversely affected by the company's operations or business relationships.
  8. Transparency and Reporting: Be transparent about human rights risks and the company's efforts to address them, for example, through sustainability reports or disclosures aligned with the UNGPs.

The Role of the Japanese Government

The Japanese government also plays a role in guiding and supporting businesses. Initiatives such as Japan's National Action Plan (NAP) on Business and Human Rights (first released in 2020 and subject to updates) provide a framework for government expectations and company responsibilities. Government agencies like METI and MOFA may also offer guidance or resources for companies operating in high-risk environments.

Conclusion

Japan's cooperation with the International Criminal Court through its domestic ICC Cooperation Act signifies its commitment to the international effort to combat impunity for the gravest crimes. While the ICC's jurisdiction is over individuals, the implications for Japanese businesses operating in high-risk areas are profound, albeit often indirect.

The potential for company personnel to face individual criminal liability, or for the business itself to become complicit in or associated with international crimes, carries severe legal, financial, and reputational consequences. In an era of increasing stakeholder scrutiny and emphasis on responsible business conduct, Japanese companies must proactively integrate a respect for human rights and IHL into their core strategies and operations. This involves implementing robust human rights due diligence, particularly in fragile and conflict-affected settings, to identify, prevent, and mitigate any adverse impacts. By doing so, businesses can not only protect themselves from significant risks but also contribute positively to peace, justice, and sustainable development in the challenging environments where they operate.