Domestic legislation blocks Japan on Genocide Convention

The International Criminal Court in The Hague is seen in March.

In January, the U.S. government called the Chinese government’s repression of the Uighur minority in the Xinjiang Uyghur Autonomous Region “genocide.” As Japan is not a signatory nation to the Genocide Convention, the most it could do was express “grave concern” over the matter.

Japan has discussed signing the Genocide Convention in the past, but to do so, existing frameworks within Japan’s Criminal Code would need to be significantly revised, which, it is thought, would prompt significant political opposition. Such issues have in part contributed to Japan being the only Group of Seven nation that is not a signatory to the Genocide Convention.

The Genocide Convention came into effect in 1951 after it was unanimously adopted by the U.N. General Assembly in 1948. The convention states that genocide is a crime under international law and obliges the signatories to prevent genocide and punish or extradite persons committing the acts listed in the convention. The Genocide Convention became a document of international importance after the world learned about the Holocaust — massacre of the Jews by Nazi Germany during World War II.

The convention has been ratified by 152 countries and regions, including China and North Korea.

According to the convention, genocide is not simply a massacre but requires intentions to annihilate a specific racial, ethnical, or religious group. The crime of genocide as defined under the convention was applied to massacres in the civil wars that occurred in the Yugoslavia region following its collapse in the 1990s.

U.S. President Joe Biden has put importance on human rights diplomacy since taking office in January and Western countries have intensified their criticisms of Uighur repression. In Japan, participants in Diet sessions as well as in meetings of the Foreign Affairs Division of the ruling Liberal Democratic Party have started to question why Japan has not signed the convention.

But such queries are hardly new. In fact, they have been periodically coming and going for the past 60 years.

This matter was discussed in 1957 during a House of Representatives Foreign Affairs Committee meeting at which then Foreign Minister Nobusuke Kishi said, “We are studying various aspects.” At a meeting of the committee in March this year, Foreign Minister Toshimitsu Motegi said, “We need to continue deliberating on this matter.”

While questions have been raised, answers have been less than clear.

Punishments’ wide coverage

Japan’s caution over signing the convention stems in part from the laws that would need to be changed and written in the legal system for it to be able to carry out the punishments required in the wide range of acts listed in the convention.

The convention defines genocide as “acts committed with the intent to destroy, in whole or in part, a national, ethnical, racial or religious group.” The acts include “killing members of the group” and “measures intended to prevent births within the group.” In addition to actual acts, “conspiracy” and “direct and indirect public incitement” to commit genocide are also subject to punishment.

The government believes that it would be difficult to pass a domestic law that could be used to punish “conspiracy” as objections from opposition parties and others would probably be raised.

In 2003, the government submitted a bill to the Diet to revise the Law on Punishment of Organized Crimes and Control of Crime Proceeds. The Bill would establish a “conspiracy as a crime” provision, which could be used in the punishment of organized crimes in their planning stages. The submission was made in preparation for the signing of the U.N. Convention against Transnational Organized Crime.

However, imposing punishments for crimes that are in the planning stages is rare under Japan’s legal system, and only a few acts of conspiracy are punishable, such as “plotting to commit insurrection.”

There has been strong opposition to introducing a “conspiracy as a crime” provision that can be applied in a wide range of cases. Concerns were raised that the provision could lead to the “possible abuse of authorities in investigations” and three bills were scrapped as a result.

In 2017, a revised provision, “criminalizing preparations for such crimes as terrorism,” was enacted with very strict requirements that need to be met in order to establish that a crime is being committed.

Within the government, there is a dominant opinion that revising the laws with regard to conspiracy as a crime would change the very foundations of the Criminal Code and that such revision would be met with considerable opposition.

ICC Statute

In 2007, Japan signed the Rome Statute, which established the International Criminal Court (ICC).

In addition to “the crime of genocide” as defined in the Genocide Convention, the Rome Statute includes “crimes against humanity” as international crimes and it grants the ICC jurisdiction over investigations and trials.

Japan was able to sign the Rome Statute, partly because conspiracy to commit crimes is not clearly stated in the statute as punishable.

A senior Foreign Ministry official said, “By signing the Rome Statute, Japan was able to show its stance on genocide to a certain degree.” Even if Japan was unable to punish offenders under its own legal system, it can make sure they get punished by cooperating with the ICC — by extraditing a suspect, for example.

Signing the Genocide Convention would be of great symbolic significance for Japan. It would be able to stand with the international community and declare “genocide is unacceptable.” At the same time, the government is in a paradoxical situation. The benefits at home would be far and few between and might even act as a detractor if public opposition is roused.

Sanctions require legislation change

It is possible that the international community may perceive Japan as being somewhat oblivious to human rights issues as it is not a signatory to the Genocide Convention.

Such perceptions could be amplified in regard to China’s crackdown on the Uighurs, as Japan’s stance on imposing sanctions on China differs from the approaches seen by Western countries.

Japan is the only G7 member that does not have a legal system that serves as a basis for imposing sanctions on the grounds of human rights violations. Japan has expressed “serious concern” about the human rights situation in the Xinjiang Uyghur Autonomous Region, but has not imposed any sanctions.

In response, a suprapartisan group including Diet members of the ruling Liberal Democratic Party and the opposition Constitutional Democratic Party of Japan has called on the government to enact a Japanese version of the Magnitsky Act (see below) in order to impose sanctions. A project team of the LDP’s Foreign Affairs Division is also discussing the possibility of Japan’s ratification of the Genocide Convention and imposing sanctions on China. The group aims to draw up a proposal by June.

The Magnitsky Act

A U.S. law that gives its government authority to impose sanctions, including entry bans and asset freezes, on foreign officials and organizations involved in human rights violations.