Japan Institute for National Fundamentals

　
The U.S. Department of State has imposed sanctions on International Criminal Court President Tomoko Akane and other ICC officials. The sanctions for the first Japanese national to head the ICC include a freeze on her assets in the United States and restrictions on her use of credit cards. The ICC is a permanent international criminal tribunal founded in 2002 to prosecute and punish criminals who violate international law. Japan has been a member state of the ICC since its founding, continuously sent judges to the court, and supported it as the largest financial contributor. Japan, which emphasizes the rule of law in the international community, should maintain its basic policy of supporting the ICC while skillfully managing its relationship with the U.S.

International Criminal Court targeted by the U.S.

The ICC’s mission is to probe into four major types of crimes: genocide, crimes against humanity, war crimes, and the crime of aggression. However, the ICC can probe into crimes only if countries where the crimes occurred or suspects’ home countries lack the willingness and ability to investigate crimes and prosecute suspects.

Furthermore, one of the following is required for the ICC to initiate an investigation: (1) a referral by a member state, (2) a referral by the U.N. Security Council, and (3) initiation of an investigation by the ICC prosecutor.

According to the Department of State, sanctions were imposed on Akane and others because the ICC sought to prosecute nationals of non-member states, including the U.S. The court is structured to assert investigative authority over suspects from non-ICC countries if crimes were committed in member states.

Specifically, when the ICC initiated investigations in 2020 in Afghanistan, an ICC member, alleged war crimes committed by members of the U.S. military and the Central Intelligence Agency—nationals of a non-ICC country—also became subject to investigation at the discretion of the ICC prosecutor. The U.S. raised strong opposition to the investigations, claiming that they infringed on U.S. sovereignty and constituted an abuse of prosecutor’s power.

Even if arrest warrants for suspects are issued with the criminal facts established, the ICC itself lacks the capability to execute the warrants, failing to cause any real harm on the U.S. or its citizens. Nevertheless, the U.S. harshly responded to the ICC because of its firm determination to absolutely protect its own citizens.

For example, the George W. Bush administration enacted the American Service-Members’ Protection Act, asking foreign countries to sign bilateral agreements promising not to extradite Americans to the ICC. The Barack Obama administration never accepted the ICC’s investigations against U.S. citizens. The U.S. thus has a bipartisan policy of refusing to extradite American military personnel or agents who have carried out missions under U.S. government orders, to foreign countries or international organizations.

ICC should turn attention to China as well

The ICC is expected to direct its attention toward investigating additional violations of international law that exist around the world. In 2023, the ICC issued an arrest warrant for Russian President Vladimir Putin for the war crime of abducting children from Ukraine. However, it is too hesitant to investigate China’s persecution of Uighurs and other ethnic minorities, which the first Trump administration designated as genocide.

Japan has a bitter experience of having war crimes imposed on it under the logic of the victors in the postwar International Military Tribunal for the Far East, also known as the Tokyo Tribunal of War Criminals. If the ICC judges war crimes from a more objective perspective, it would be worthy of Japan’s support. As the U.S., Japan’s sole ally, has gone as far as calling for dismantling the ICC, Japan will be forced to navigate difficult diplomacy. It is hoped that Japan will remain steadfast in its fundamental stance of upholding the rule of law.

Seiji Kurosawa is a retired captain of the Japan Maritime Self-Defense Force and former Legal Affairs General of the Joint Staff. He is also a director of the Japan Institute for National Fundamentals.