Thank you, Mr. President,

    At the outset of this United Nations Diplomatic Conference of  Plenipotentiaries on
the Establishment of an International Criminal Court, the delegation of Japan would like
to pay its sincere tribute to the Government of Italy for hosting this historic conference.
My delegation would also like to congratulate you, Mr. President, on your assumption
of the presidency of the conference. In the name of my delegation, I wish to assure you,
Mr. President, that Japan is ready to offer its full cooperation to you and to participate
actively and constructively in the negotiations for the success of this conference.

    The establishment of a permanent international criminal court has long been
an aspiration of the international community from the viewpoint of the development of
international law since the beginning of the twentieth century. In particular, however, this
problem has recently become a challenge of great urgency, as we in the international
community go through the traumatic experience of witnessing crimes of genocide and
other serious violations of international humanitarian law being committed on a large
scale in the context of an increasing number of regional conflicts in the last decade of
this century. The international community simply cannot tolerate the situation where the
perpetrators of such crimes go unpunished. It is this situation that has prompted us in
the international community to assemble here together to work for the establishment of
an international criminal court. Our task is of course not an easy one but it is a worthy
task.

    Mr. President,

    May I be permitted to begin by laying down the basic position of the
Government of Japan on the establishment of an international criminal court.

    Against the background as I have just described, the Government of
Japan fully supports the establishment of an international criminal court at this
juncture. It does so in the full conviction that the Court will play a crucial role in
bringing to justice those who commit most heinous crimes against the international
community and thus contribute to the maintenance of international peace and security.
    In light of this rationale for the establishment of the Court, Japan believes that the
Court should satisfy the following four basic principles:

    First of all, the Court should be established as a strictly independent and impartial
judicial organ of the international community. It must be independent of any political
influence and its judgments should be given exclusively on the basis of law, including,
in particular, the Statute of the Court.

    Second, the Court should be formed as an international organization capable of carrying
out its task effectively. For this purpose, the Court must ensure cooperation of all the
countries concerned, so that it may work effectively in dealing with the cases brought before it.

    Third, the principle of complementarity should be the basic guiding principle. The jurisdiction
of the Court must be established only when the national system of criminal justice is not
operational or effective in relation with the case concerned.

    Fourth, the Court should be established with the aim of universal participation. If only
a limited number of states are contracting parties to the Statute of the Court, its significance
will be greatly diminished.

    Since we are at the starting point of five weeks of negotiations, my
delegation would like to stress at this stage one important point that we should bear
in mind throughout our negotiations.

    Naturally, the establishment of the International Criminal Court is par excellence a problem
of primordial political significance. Nevertheless, we have to be conscious of the fact that
there are a number of major points of legal significance that require our rigorous scrutiny from
the viewpoint of legal principles involved. It is necessary to apply our expertise in international
law and criminal law in tackling them, with a view to arriving at the most desirable solution
for creating a fair and effective judicial system. Above all, we should avoid being influenced
by parochial considerations and insisting on viewpoints narrowly circumscribed by our respective
national institutions. After all, we are not here to decide which of our respective systems of criminal
law is the best; we are here to work together for the creation of the most appropriate system
for an international court.

    Let me raise some of the most salient issues to which Japan attaches particular importance.
Since the last session of the Preparatory Committee, my delegation has reviewed its position
on all the major issues relating to the draft Statute, taking into consideration the views that have
been expressed by other delegations. On the basis of such review, my delegation intends to
offer at this conference a constructive position on many important issues, distinguishing between
those which Japan considers to be vital and those on which Japan can take, in a spirit of
cooperation, flexible attitude, with a view to contributing constructively to the attainment of our
common goat. The following are some of the most salient issues on which Japan has strong views:

(1) The crimes for which the Court should be given jurisdiction
    It is the considered view of Japan that the scope of the crimes to be dealt with by the
International Court should cover all the most serious crimes against the international community.
With this point in mind, Japan supports the inclusion of the following four crimes in the Statute
of the Court: i.e. the crime of genocide, the war crimes, the crimes against humanity and the crime
of aggression. In saying this, I wish to stress that it is of utmost importance to define the constituent
elements of those crimes in a precise manner, in view of the cardinal importance, inter alia, of the
principle of nullum crimen sine lege.

(2) The scope of the war crimes
        Japan is of the view that the crimes to be assigned to the International Criminal Court under
this category of war crimes should be those which are established as crimes against the law
of war and covered by existing international instruments in this field imposing on the contracting
parties the obligation to criminalize them. The war crimes which are considered to have
become part of customary international law should also be included, while crimes which cannot
be considered as having been crystallized into part of customary international law should be outside the
scope of the Court.
    This is not to say of course that only "classical" war crimes can be considered by the Court.
If we look at the recent state practice, it is evident that a new development of the law is
taking place at a tremendously rapid pace, e.g. in the area of the protection of innocent women
and children in armed conflict, reflecting a growing consensus within the international community
in this regard amounting to opinio juris, thereby forming new rules of customary international law.
 
(3) Relationship with the Security Council of the United Nations
    Japan supports the inclusion of the crime of aggression in the scope of the  Court's
jurisdiction. At the same time, we should bear in mind that the determination of the act of
aggression by a State fails within the exclusive competence of the Security Council of the
United Nations. It is true that the question of the determination of aggression perpetrated
by a state is separate from the question of criminal responsibility of an individual who
initiates such an act of aggression; nevertheless the two questions are inseparably linked to
each other to the extent that they emanate from the same act of aggression. It is in this context
that the competence of the Security Council to determine that an act of aggression has taken
place should remain intact with the establishment of the International Criminal Court. Japan
therefore supports the idea that the determination of an act of aggression by the Security
Council is a prior condition to the exercise of jurisdiction of the Court in relation with the
crime of aggression attributable to an individual.

(4) The Principle of Complementarity
    Since the International Court which is going to be established will be permanent with a
wide jurisdiction over a range of issues, clarity in its nexus with national jurisdiction of the
states parties to the Statute is of primary importance. The International Court should not deprive
the national courts of their jurisdiction When the national judicial system functions properly and
effectively. The International Court should come into play only when it is evident that justice is not
being carried out by the court of national jurisdiction in the domestic judicial system. The principle
of complementarity is also essential to ensuring the universal participation of the members of the
international community in the activities of the Court. I wish to emphasize that the importance
we attach to this principle cannot be overstated.

(5) Trigger mechanism
    Japan holds the view that the right to refer a case to the Court should be limited to states
parties to the Statute and to the Security Council of the United Nations. This view is based
on the consideration that the power of this judicial institution is so great that the trigger
mechanism to set the activities of the Court into operation should be carefully designed in
light of the need to maintain a proper balance between the power of the Court on the one
hand and the legitimate interests of the states parties to the Statute on the other. Japan therefore
considers it inappropriate to give the prosecutor the right to initiate investigation proprio motu.

(6) Surrender and other forms of cooperation
    For the Court to function meaningfully and effectively, it is important to secure international
cooperation and judicial assistance by the states parties to the Statute. This is an area where the
legal nexus between the International Court and states will be particularly relevant. Ensuring such
cooperation is crucial to the realization of the universality and effective functioning of the Court.
In particular, it is essential to clearly define the grounds on which a request by the Court for
cooperation can be declined by States. When it comes to the implementation of a request from
the Court, especially in the case of coercive measures, respect for the due process and the
protection of human rights should be fully taken into consideration in the national procedures of
the state to which the request is made. An appropriate balance needs to be struck between
these elements and the requirement to comply with the request of the Court. Of course, countries
may have different points of view as to how to balance these conflicting elements. As far as Japan
is concerned, my country is ready to surrender its nationals to the Court upon request as long as the
conditions provided for in the Statute are satisfied. However, there might be countries which would
find it difficult to unconditionally comply with such request, because of their constitutional requirements.
I believe that there could be legitimate and justifiable cases of this kind. It would be
appropriate for us to heed to such a legitimate need. In view of the need for legal precision in this
delicate area of partition of competence between the Court and the states concerned, it would be
highly advisable to bring absolute clarity into the provisions of the Statute on this point, even at the
cost of having somewhat elaborate provisions on this matter.

(7) Relationship with the United Nations
    Japan believes that the International Criminal Court should be established as a judicial
institution independent of the United Nations. It is true that another important judicial institution
of the world community, the International Court of Justice, has been created as one of the principal
organs of the United Nations. Nevertheless, in addition to some considerable differences that exist
between these two judicial institutions in terms of their functions and their objectives within the UN system,
the urgency of the need to establish the Court should counsel us to avoid a procedure
which would involve the Charter amendment and unnecessarily complicate the process.

    Regarding the financing of the Court, it is the view of Japan that financial contributions should
be made by states parties to the Statute, since the International Court will be totally independent
of the United Nations.

    Mr. President,

    I wish to close my statement by reaffirming the belief of the Japanese delegation that although
five weeks seems too short a period of time in which to build Rome, we will surely be able to
do so if we make a full use of our wisdom and experience with the necessary political will.
Japan is ready to contribute actively to the negotiations in order to bring this Conference to a
successful conclusion, so that the cause of justice will prevail in the international community.