Twenty Years of the Rome Statute of the International Criminal Court: Appraising the State of National Implementing Legislation in Asia


 The International Criminal Court relies on its State Parties to incorporate, or implement, its constituent instrument, the Rome Statute, into their domestic legal systems to enable its effective functioning. First, State Parties are obliged to give effect to their explicit obligation to cooperate with the Court under the Rome Statute. Second, although not required to do so, to avoid their national legal systems being found by the Court to be unable to investigate and/or prosecute the crimes under its jurisdiction in accordance with the principle of complementarity, they should also implement the definition and prohibition of these offences in their national legal frameworks. This article appraises the status of the domestic implementation of the Rome Statute, both crimes and cooperation, in Asia. The article concludes that few Asian State Parties to the Rome Statute have incorporated the treaty’s provisions into their domestic laws in a holistic manner, with the absence of cooperation legislation, enabling State Parties to assist the Court, particularly striking.


I. Introduction
1. For the International Criminal Court (ICC, Court) to be able to function effectively, its State Parties need to incorporate its constituent instrument, the Rome Statute of the International Criminal Court (Rome Statute, ICC Statute), 1 into their respective domestic legal orders-a process known as implementation. The implementation process serves two purposes. First, enacting national implementing legislation empowers State Parties to fulfil their obligation under the ICC Statute to "ensure that there are procedures available under their national law for all of the forms of cooperation" specified in Part IX thereof, 2 and, further, their general obligation to "cooperate fully with the Court in its investigation and prosecution of crimes" within its jurisdiction. 3 The late Professor and Judge Antonio Cassese notably described the International Criminal Tribunal for the former Yugoslavia (ICTY) as "a giant without arms and legs [which] needs artificial limbs to walk and work. And these artificial limbs are state authorities". 4 This memorable analogy is equally, if not more, applicable to the ICC, which, like the ICTY, depends on State authorities to enable its effective functioning. For example, the ICC does not have a dedicated police force to identify and apprehend persons suspected of committing international crimes or to gather evidence. In addition, unlike the ICTY, the ICC is a court of last resort. In other words, by virtue of complementarity, the principle that governs the Court's relationship with national courts, the jurisdiction of the ICC is only triggered if the national courts of the relevant State are unwilling or unable to investigate or prosecute. 5 Implementing the substantive law provisions of the Rome Statute consequently permits State Parties to exercise primary jurisdiction over ICC crimes, thereby fulfilling the principle of complementarity. In sum, therefore, for States to be able to adequately perform their dual role envisaged by the Rome Statute, they need to enact legislation implementing the Rome Statute, as regards both crimes and cooperation, in their national legal orders. Of the 123 State Parties to the ICC Statute at the time of writing, 6 approximately 40% have yet to enact national implementing legislation. This absence is particularly marked in Asia.
2. The United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court concluded with the adoption of the Rome Statute on 17 July 1998. Twenty years later, this article appraises the status of its domestic implementation in Asia. In so doing, the article emphasizes the need for States to guarantee that their implementing legislation not only incorporates the crimes listed in the ICC Statute into their national legal orders, giving effect to the principle of complementarity, but that it also enables the relevant State to "cooperate fully" with the Court. The article highlights the absence of "cooperation legislation" among Asian State Parties to the Rome Statute and concludes with a proposal to Asian State Parties to the ICC Statute to ensure that their respective legal frameworks allow them not only to investigate and prosecute international crimes themselves, but would also enable the Court to do so on their respective territories, should such a need arise. In order to be able to guarantee the latter, Asian ICC State Parties need, first and foremost, to give full effect to their obligations under the Rome Statute as regards cooperation with the Court.
3. The article is divided into three parts. First, after defining "Asia" for the purposes of the study, the article scrutinizes the lack of engagement by Asian States with the Rome Statute system since its adoption. Second, the article evaluates the extent to which Asian ICC State Parties have incorporated (elements of) the Rome Statute, both pertaining to the four crimes listed therein and cooperation, into their respective domestic legal orders. Third, the article concludes with some concrete recommendations for Asian State Parties to the ICC Statute. The article draws upon existing literature examining domestic implementation of the Rome Statute in certain Asian ICC State Parties, namely Bangladesh, 7 Cambodia, 8 Japan, 9 and the Republic of Korea, 10 which have already received academic scrutiny. At the same time, the article intends to shed light upon the Rome Statute implementation process in other national jurisdictions subjected to a paucity of scholarly attention, whether because of their failure to implement the Rome Statute or for other reasons. Rather than examining the process in one particular Asian State, the article conducts an appraisal of national legislation implementing the Rome Statute across Asia as a whole. 11 Further, throughout the article, the focus rests on State Parties to the ICC Statute,12 i.e. those States under an obligation to cooperate with the ICC and to ensure that their respective national legal frameworks enable them geographic regions, which are based on continental regions. 18 According to this system, Asia can be divided into five sub-regions: (1) Central Asia, comprising five States; 19 (2) Eastern Asia, comprising five States and two Special Administrative Regions; 20 (3) South-eastern Asia, comprising eleven States; 21 (4) Southern Asia, comprising nine States; 22 and (5) Western Asia, comprising eighteen States. 23 6. Chesterman recognizes the difficulties in defining "Asia" partly as a result of its diversity in his article on Asia's ambivalence about international law and institutions. 24 In his words: Indeed, the very concept of "Asia" derives from a term used in Ancient Greece rather than any indigenous political or historic roots. Regional cohesion is further complicated by the need to accommodate the great power interests of China, India and Japan. 25 [Footnote omitted.] 7. For the purposes of this article, a State is considered "Asian" if on the geographical list used by the UN Statistics Division rather than among the members of the Asia-Pacific group. In other words, though Palestine appears on the former list, but not the latter, it will be viewed as an "Asian" State. Conversely, because Fiji, Nauru, Marshall Islands, Samoa, and Vanuatu are not identified as "Asian" according to the geographical list, they will not be regarded as "Asian" States for the purposes of this study. Such divisions are, though somewhat artificial, borne out of a desire to keep the subject-matter of this article manageable. It is also argued that other categorizations are equally artificial. As Chesterman observes, the UN Asia-Pacific group of States "rarely adopts common positions on issues and discusses only candidacies for international posts. Such sub-regional groupings that exist within Asia have tended to coalesce around narrowly shared national interests rather than a shared identity or aspirations". 26 Geography therefore appears to be as suitable a criterion as any according to which to define Asia. 27 8. In terms of ratification or accession, Asian participation in the Rome Statute system can be depicted as follows when viewed using these five subregions: 9. In other words, 13 of the 48 (or fewer than 30% of) Asian States have ratified or acceded to the ICC Statute in the 20 years since it was concluded in Rome. This figure renders Asia the least represented group of State Parties to the Rome Statute. 29 Turning to ratification of the Kampala Philippines. 37 This section scrutinizes the state of progress with respect to enacting national implementing legislation across the 13 Asian State Parties to the Rome Statute and considers how a more holistic implementation thereof can help the ICC achieve its purposes. Before turning to whether, and, if so, the extent to which, these States have incorporated the Rome Statute cooperation regime into their respective national legal frameworks, the article first considers how States have implemented the definition and prohibition of the four crimes over which the ICC can exercise jurisdiction, namely the crime of genocide, crimes against humanity, war crimes, and the crime of aggression.

III.
A. Implementing the Rome Statute Crimes 11. ICC State Parties are not under an explicit obligation to implement the definition and prohibition of the offences listed therein. In other words, despite the appeal of doing so, not least to fulfil the principle of complementarity: The decision to implement the crimes [sic] listed under Article 5 of the ICC Statute-genocide, crimes against humanity, war crimes, and aggression-remains at the discretion of the State. The same holds true with regard to defences and modes of responsibility[.] 38 12. This said, in order to avoid being found by the ICC to be unwilling or unable to investigate and/or prosecute crimes under its jurisdiction, certain States have sought to incorporate the offences into their national legal frameworks. The need to proscribe Rome Statute crimes at the domestic level is therefore clear: in order for national investigations and prosecutions to be able to take place, adequate legislation implementing the four crimes must be enacted.

III.
A.i. The crime of genocide 13. A number of Asian States had already legislated to proscribe the crime of genocide in their national legal frameworks before they ratified or acceded to the Rome Statute. This can be explained by the fact that these States had already ratified or acceded to the Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention) 39 and had subsequently decided to incorporate elements thereof into their respective national laws. Of the 13 Asian State Parties to the Rome Statute that form the subject of the present article, 10 had ratified or acceded to the Genocide Convention before joining the ICC Statute system. The following table is illustrative in this respect, with the second column indicating the date of ratification (marked with "r") or accession (marked with "a") to the Genocide Convention, and the third column showing the date of ratification or accession to the Rome Statute: 14. Tajikistan thus constitutes an exception to the general rule, having acceded to the Genocide Convention after ratifying the ICC Statute. It is also noteworthy that Japan and Timor-Leste have not yet acceded to the Genocide Convention despite both having been State Parties to the ICC Statute for a number of years. In the case of Timor-Leste, this situation could result from it having gained independence on 20 May 2002, more than fifty years after the entry into force of the Genocide Convention. Regardless, neither Japan nor Timor-Leste could rely on having pre-existing national legislation criminalizing genocide at the time they acceded to the Rome Statute from having already implemented (elements of) the Genocide Convention. 15. Not all 13 Asian ICC State Parties explicitly criminalize genocide in their national legal systems. Afghanistan, Japan, Jordan, Maldives, and Palestine possess no specific legislation proscribing the crime. This absence means that, should the courts in these State Parties wish to exercise jurisdiction over conduct that could constitute genocide, they are only able do so by acting pursuant to "ordinary" domestic criminal provisions. In discussing Japan's lack of dedicated legislation implementing the definition and prohibition of the crime of genocide in its national law, Meierhenrich and Ko express the following concern regarding this approach: prosecuting genocide as "multiple homicide"-the strategy favored by the Government of Japan-is not commensurable with the purpose of the Rome Statute precisely because it would in such an instance be unable to communicate the fact that aside from a (typically sizable) number of individual victims, humanity is also under attack. legislation are the Republic of Korea 45 and Tajikistan. 46 It is also noteworthy that Jordan, in Article 11 of its draft national implementing legislation, "reproduces verbatim the definition of the crime of genocide as stipulated in article 6 of the . . . Rome Statute". 47 17. Olympia Bekou notes that, when implementing the definition and prohibition of the crime of genocide into their national legal orders, when States do not follow verbatim the definition in the Genocide Convention, they are over-or under-inclusive in terms of the protected groups and the prohibited acts. 48 This trend, which Bekou identifies based on a survey of States from Africa, Europe, and the Americas, 49 is also evident in several Asian State Parties to the Rome Statute. For example, as for being over-inclusive in its national implementing legislation, Bangladesh extends the definition of the groups protected by the Genocide Convention and Rome Statute (national, ethnical, racial, and religious groups) to include a further group, namely political groups. 50 The Philippines' national implementing legislation goes even further, including, in addition to the four groups named in the Genocide Convention and ICC Statute, "social or any other similar stable and permanent group". 51  Tribunal for Rwanda (ICTR) in The Prosecutor v. Jean-Paul Akayesu, 52 which has received criticism for its reading of the wording of the Genocide Convention and the intention of its drafters. 53 As Bekou observes: Extending the protection to groups that are vulnerable in a given state may be important for a particular jurisdiction, but it is equally important to examine how this is applied in practice, as there is always the risk of diluting the crime of genocide the prosecution of which is normally reserved for the most serious atrocities. 54 18. Turning to over-inclusiveness in terms of the prohibited acts, Timor-Leste criminalizes several forms of genocidal conduct beyond those included in the Genocide Convention and ICC Statute. 55 The acts that could constitute genocide, that is, if executed with the requisite specific intent, 56 in Timor-Leste's national implementing legislation are as follows: (a) Homicide or offence against the physical or mental integrity of members of the group; (b) By whatever means, acts that prevent members of the group from procreating or giving birth; (e) Acts that prevent the group in a violent manner from settling or remaining in a geographic space that is, by tradition or historically, recognized as their own; (f) Subjection of the group to cruel, degrading or inhumane conditions of existence and treatment, which may cause its total or partial destruction; (g) Widespread confiscation or seizure of property owned by members of the group; (h) Prohibition of members of the group from carrying out certain trade, industrial or professional activities; (i) Spread of an epidemic that may cause the death of members of the group or offences to their physical integrity; (j) Prohibition, omission or hindrance by any means from providing members of the group with humanitarian assistance required to combat epidemic situations or severe food shortages[.] 57 19. On the one hand, the East Timorese national implementing legislation appears to expand on the conduct that can, if committed with the intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such, constitute the crime of genocide under the Rome Statute. On the other hand, subsections e) to j) of the East Timorese Criminal Code could be viewed as elaborating on Article 6(c) of the Rome Statute, which criminalizes "deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part". 58 Either way, such overcriminilization ought not to risk a negative finding on the part of the Court should it make a complementarity assessment in the future. 20. The Cambodian Criminal Code also appears to contain a broader definition of genocide than that contained in the Genocide Convention and Rome Statute with respect to imposing measures intended to prevent births within the group. 59 Cambodia's national implementing legislation proscribes "imposing forceful measures or voluntary means intended to prevent births within the group". 60 Meisenberg accurately observes that this provision is unlikely to lead to practical consequences for any possible complementarity determination that the ICC might make in the future, rightly suggesting that "the requirements of this crime will hardly be met if the persons are informed and understand the consequences of the family planning programme". 61 In other words, measures intended to prevent births within a protected group cannot be imposed voluntarily, but, as implied by the term "imposed", must be coercive. 62 21. In contrast, the definition of genocide in the Criminal Code of Mongolia is as follows: 302. Any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such killing of members of the group; causing grave bodily injuries to members of the group; imposing measures intended to prevent births within the group; forcibly transferring children of the group to another group or deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part[.] 63 22. This approach therefore falls into the second category, being underinclusive in terms of the genocidal acts enumerated in the Genocide Convention and the Rome Statute. Although the Mongolian Criminal Code largely follows the definition agreed in the Genocide Convention verbatim, it omits "causing serious . . . mental harm" to members of the protected groups in the list of genocidal acts. 64 From the perspective of international criminal law, to restrict the actus reus for genocide in this manner may trigger the jurisdiction of the ICC according to the principle of complementarity, by virtue of the inconsistency between domestic law and the Rome Statute. In other words, according to Kleffner, "when domestic law criminalizes a narrower range of conduct than the Statute . . . States risk relinquishing their competence to investigate and prosecute, because the ICC may declare them to be 'unable' [to do so]". 65 23. As for under-inclusiveness with respect to the specific intent required for genocide, it is significant that, in its national implementing legislation, Bangladesh uses the term "such as" instead of "as such", the wording used in the Genocide Convention and the Rome Statute. 66 Though conceivably unintentional, the adoption of this wording by the Bangladeshi drafters could have practical consequences. According to Suzannah Linton: The "as such" emphasises the prohibited targeting of protected groups, . . . a critical aspect of the concept of genocide. The ultimate target is the group, and individuals are targeted because they are members of the group. The "as such" underscores that. In Section 3(2)(c) of the International Crimes (Tribunals) Act As Amended, the turn to "such as" not just shifts the emphasis away from the targeting of the protected groups to the core crimes, but it also turns the Genocide Convention's closed list of core crimes into a merely illustrative list. 67 24. This "watering down", however inadvertent, of the definition of the crime of genocide could lead to the Court finding Bangladesh unable to investigate and prosecute the offence before its national courts, should the ICC be faced with making such an assessment in the future in accordance with the principle of complementarity.

III.A.ii. Crimes against humanity
25. There is no specific international convention akin to those addressing the crime of genocide and war crimes governing crimes against humanity. 68 As a result, the latter were not widely criminalized in the domestic legal 28. Turning to those Asian State Parties to the Rome Statute that have implemented the definition and prohibition of crimes against humanity in their national legal orders, as with implementing the definition and prohibition of the crime of genocide, certain States make explicit reference to the Rome Statute. For example, ". . . 'crime against humanity' means any of the acts specified in article 7 of the Rome Statute" according to the national implementing legislation enacted by the Republic of Cyprus in 2006. 73 29. Similar to the implementation of the definition and prohibition of the crime of genocide, under-inclusiveness in terms of grounds on which the crime against humanity of persecution, listed in Article 7(1)(h) of the Rome Statute, 74 may be committed can be viewed in the national implementing legislation enacted by certain Asian ICC State Parties. For example, Bangladesh restricts the offence to "persecutions on political, racial, ethnic or religious grounds", 75 omitting a number of other grounds contained in the Rome Statute, namely national grounds, gender grounds, and other grounds that are universally recognized as impermissible under international law. Likewise, Cambodia proscribes "persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious or gender grounds", 76 but omits the final category provided in the ICC Statute: other grounds that are universally recognized as impermissible under international law. As noted above with respect to under-inclusiveness in defining the crime of genocide in national legislation, restrictions in terms of the crime against humanity of persecution could lead the Court to find that Bangladesh and 72 Jordan does, however, possess draft national implementing legislation, which, except for its failure to include "other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health", reflects the Rome Statute definition of crimes against humanity. Cambodia are unable to try these offences at the national level, if a complementarity determination were to be made. In contrast, the Philippines' national implementing legislation prohibits "[p]ersecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender, sexual orientation or other grounds that are universally recognized as impermissible under international law". 77 This approach is faithful to the definition in the Rome Statute, 78 while also explicitly recognizing sexual orientation as a ground on which the crime against humanity of persecution as a can be founded. 79 Other States adhere even more closely to the wording contained in the Rome Statute. For example, Timor-Leste's national implementing legislation defines the crime against humanity of persecution in the following terms: . . . deprivation of the exercise of fundamental rights contrary to international law against a group or a collective entity due to politics, race, nationality, ethnicity, culture, religion, gender or for any other reason universally recognized as unacceptable under international law[.] 80 30. Similarly, the legislation adopted by the Republic of Korea to criminalize genocide, crimes against humanity and war crimes at the domestic level, as well as to give effect to the Rome Statute cooperation regime domestically, defines the crime against humanity of persecution as: "[d]epriving a member of a group or collectivity of his/her fundamental human rights or restricting his/her fundamental human rights on political, racial, national, ethnical, cultural, religious, gender or other grounds recognized as impermissible under international laws". 81 77 Philippine IHL Act, above n.51, s. 6(h

One notable omission in the national implementing legislation of most
Asian ICC State Parties is the requirement under Article 7(2)(a) of the Rome Statute, namely that: "Attack directed against any civilian population" means a course of conduct involving the multiple commission of acts referred to in paragraph 1 against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack [.] 32. Of the 13 Asian State Parties to the ICC Statute, only the Republic of Korea 82 and Cyprus 83 incorporate this "policy requirement" into their respective national implementing legislation. Another potential omission in the national implementing legislation enacted by some Asian State Parties to the Rome Statute might have been the residual Article 7(1)(k), i.e. the crime against humanity of "other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health". 84 Bekou observes: "it is foreseeable that states could take issue with its implementation owing to a potential conflict with the legality principle, which requires the strict definition of the crimes". 85 This concern has been expressed in Asia. For example, Jordan has shown its apprehension with regard to the breadth of the definition of "other inhumane acts". According to Ibrahim Aljazy, Article 12 of the 2008 draft Jordanian national implementing legislation: reproduces the definition of crimes against humanity found in article 7(1)(a-j) of the . . . Rome Statute but omits the text of article 7(1)(k), namely '[o]ther inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical 82 Korean ICC Act, above n.45, art. 9(1): ". . . an extensive or systematic attack directed against any civilian population in connection with the policies of the State, organizations or institutions to commit such attack". See also art. 18, which permits Korean courts to take the Elements of Crimes into account in accordance with art. 9 of the Rome Statute. 83 Cyprus Rome Statute Ratification Law, above n.44, s. 2, incorporating the requirement by reference. See also s. 5, which instructs Cypriot courts to take the Elements of Crimes into account in their interpretation and application of arts. 6, 7, and 8(2) of the Rome Statute. 84 Rome Statute, above n.1, art. 7(1)(k). 85 Olympia Bekou, above n.48, 684. health'. This reflects concerns that the broad definition contained in article 7(1)(k) of the Rome Statute may prompt national judges to find certain conduct to constitute crimes against humanity contrary to the intention of the legislature. 86 33. Despite such consternation on the part of Jordan, such concerns have not been borne out in the practice of the Asian ICC State Parties to have implemented the definition and prohibition of crimes against humanity in their respective national laws. 87 (GC I-IV) as well as Additional  Protocols I and II thereto (AP I and AP II, respectively). In addition, Cyprus, Palestine, the Philippines, and Timor-Leste have also ratified the third, and most recently agreed, Additional Protocol thereto (AP III). Asian ICC State Parties' respective dates of ratification of, or accession to, these international humanitarian law (IHL) instruments are shown in the following table: 35. However, despite such widespread ratification, it must be noted that Afghanistan, Maldives, and Palestine do not criminalize war crimes in their respective domestic legislation, though the latter has taken steps to address this situation by establishing a National Commission for the Implementation of IHL on 13 January 2016. 99 The Commission is responsible for, inter alia, reviewing existing legislation and submitting proposals for its development, including draft laws, for its harmonization with the provisions of IHL. 100 36. At the same time, because certain States had criminalized war crimes when ratifying the Geneva Conventions and their Additional Protocols, as with the incorporation the crime of genocide into domestic law, they adopted the definitions contained therein. This was again done by replicating their wording or by making direct references thereto. Mongolia follows the second method in its Criminal Code, which provides as follows, in relevant part: Article 299. Conduct of war by prohibited means 299.1. Cruel treatment of the captives and civilians, displacement of the population, looting of the historical and cultural values in the occupied territory or use of the means of warfare prohibited by an international treaty to which Mongolia is a party shall be punishable by imprisonment for a term of more than 10 to 15 years. 101 37. The "international treat[ies] to which Mongolia is a party" in this context include the Rome Statute 102 as well as the four Geneva Conventions and their first two Additional Protocols. 103 Bangladesh adopts a similar approach by, in addition to proscribing a number of named war crimes, 104 prohibiting the "violation of any humanitarian rules applicable in armed conflicts laid down in the Geneva Conventions of 1949". 105 As for making an explicit reference to the ICC Statute, according to the national implementing legislation of the Republic of Cyprus: "'war crime' means any of the acts specified in article 8.2 of the Rome Statute". 106 38. As for Asian State Parties to the Rome Statute that have not implemented war crimes by reference to the Geneva Conventions or the constituent instrument of the Court, there are a number of offences that are contained in these instruments but which are omitted in States' national implementing legislation. As Meisenberg notes, there are 72 war crimes provisions contained in the Rome Statute, 107 which can be sub-divided into eight grave breaches of the four Geneva Conventions and 64 war crimes that can be perpetrated in international armed conflicts (IACs) and non-international armed conflicts (NIACs). 108 Though the ICC Statute draws a distinction between the types of armed conflict for the purpose of defining the war crimes proscribed therein, this does not mean that States need necessarily do the same when implementing. Nonetheless, should they omit to implement the definition and prohibition of offences in their domestic laws, entirely or in relation to a particular form of armed conflict, that are criminalized in the ICC Statute, they leave themselves susceptible to a negative finding by the Court, should it have to make a determination of their "ability" to investigate and/or prosecute war crimes in line with the principle of complementarity. A number of notable and common aberrations from the war crimes definitions enumerated in the Rome Statute will now be examined in turn.
39. Grave breaches of the Geneva Conventions are the only Rome Statute crimes explicitly criminalized by Japan, with the other offences punishable as "ordinary" domestic crimes. 109 This approach can be partly explained by obstacles arising from Japan's pacifist post-World War II Constitution, which restrained its capacity to investigate and prosecute war crimes at the domestic level. 110 Following a series of legislative changes, Japan moved to criminalize grave breaches of the Geneva Convention in 2004. 111 Specifically, the Japanese legislation proscribes war crimes against cultural property, 112 delays in the repatriation of prisoners of war, 113 transferring parts of its own population into occupied territory, 114 and preventing the departure of civilians from occupied territory. 115 At the same time, the 2004 legislation also brought grave breaches of the Geneva Conventions into the remit of punishable offences in the Japanese Criminal Code. 116 Despite this arguably momentous legislative step for Japan, the "ordinary" crimes approach leaves the Japanese authorities open to a negative finding in terms of their ability to investigate and/or prosecute crimes other than those explicitly listed in its legislation if ICC investigators were to simultaneously examine such offences. 117 40. Turning from an Asian State Party to the Rome Statute that adopts a "minimalist", 118 or "thin", 119 approach to national implementing legislation to a State that adopts a "maximalist position", 120 or a "thick" approach, 121 i.e. the Republic of Korea, aberrations from the Rome Statute definition of war crimes can still be observed. For example, as shown by Tae Hyun Choi and Sangkul Kim, the war crimes of inhuman treatment in IACs, 122 cruel treatment in NIACs, 123 biological experiments in IACs, 124 and ordering the displacement of the civilian population in NIACs 125 do not have equivalent provisions in Korea's national implementing legislation. 126 At the same time, with several provisions, the Korean national implementing legislation expands certain protections afforded under IACs in the Rome Statute to NIACs. For example, the war crimes of wilfully causing great suffering and deportation or transfer, and criminalized in IACs under the Rome Statute, 127 are also prohibited in NIACs under the Korean domestic implementing legislation. 128 Similarly, the war crime of passing sentences or the carrying out of executions without due process having been afforded to the convicted person, prohibited in NIACs under the ICC Statute, 129 is also proscribed in IACs in Korea's national implementing legislation. 130 Despite a few aberrations, Korea's overall approach to implementing the Rome Statute has rightly drawn praise for providing clarity. As Lee argues in relation to the Korean (and German) national implementing legislation: By transposing Article 8(2) of the Rome Statute . . . in an idiosyncratic way, the drafters of the German and Korean acts also purported to enhance the domestic operationality of the category of war crimes, in addition to increasing the overall specificity and clarity of the category of war crime. National judges are in general not familiar with international law . . . Interpretation and application of Article 8 of the Rome Statute that is very long and tortuous should pose a highly daunting challenge to them. Sub-dividing the sprawling category of war crimes as provided for in the Rome Statute into 5 sub-categories should lessen the complexity of the provision, thereby rendering it more manageable and operational to domestic judges. 131 41. As with the drafters of Korea's national implementing legislation, the drafters of Timor-Leste's national war crimes provisions similarly sub-divided Article 8(2) of the ICC Statute into several categories, 132 while also providing for the prohibition of many offences in both IACs and NIACs. 133 Additionally, in its Penal Code, Timor-Leste extends the Rome Statute offence of conscripting or enlisting children under the age of fifteen years into the national armed forces, or, in the case of NIACs, armed forces or groups, or using them to participate actively in hostilities, 134 to cover children under the age of eighteen. 135 Timor-Leste's Penal Code also prohibits a number of means of warfare beyond the scope of the war crimes listed in the Rome Statute, including the use of antipersonnel landmines, 136 chemical weapons, 137 incendiary weapons, 138 and laser weapons capable of causing blind-131 LEE Keun-Gwan, above n.10, 70. 132 Penal Code of the Democratic Republic of Timor-Leste, above n.55, arts. 125-30.
The sub-categories are as follows: 1. War crimes against individuals; 2. War crimes committed using prohibited methods of warfare; 3. War crimes committed using prohibited means of warfare; 4. War crimes against assets protected by insignia or distinctive emblems; 5. War crimes against property; and 6. War crimes against other rights. 133 Ibid. Cf. art. 125(3), restricting the following war crimes to IACs: Any person who, within the context of an armed conflict of an international nature: (a) Transfers, directly or indirectly, as an occupying power, parts of its own civilian population into the territory it occupies, or transfers all or parts of the population of the occupied territory within or outside this territory; (b) Compels a prisoner of war or other protected person to serve in the armed forces of a hostile power; (c) Delays, after cessation of hostilities, and without a justified reason, repatriation of prisoners of war. 134 Rome Statute, above n.1, art. 8(2)(b)(xxvi) (for IACs) and art. 8(2)(e)(vii) (for NIACs). 135 Penal Code of the Democratic Republic of Timor-Leste, above n.55, art. 125(1)(e). 136 Ibid., art. 127(2)(d).
ness in their victim(s). 139 In sum, therefore, despite some aberrations, 140 Timor-Leste implements the ICC Statute war crimes regime in a clear manner, capable of straightforward application by national judges. Lee's high praise for the Korean (and German) national implementing legislation can therefore be extended to the Penal Code of the Democratic Republic of Timor-Leste.
42. The Tajik Criminal Code also divides the war crimes its criminalizes into sub-categories and, without exception, legislates for the prohibition of all enumerated war crimes in IACs and NIACs, 141 thereby providing protection beyond the ICC Statute regime with respect to the offences listed. Despite expanding protection with respect to certain offences, however, there are a number of discrepancies between the war crimes included in the Tajik Criminal Code and those listed in the ICC Statute. By way of example, the Tajik Criminal Code does not criminalize the Rome Statute war crimes of "rape, sexual slavery, enforced prostitution, forced pregnancy, as defined in article 7, paragraph 2 (f), enforced sterilization, or any other form of sexual violence also constituting [in the case of IACs] a grave breach of the Geneva Conventions", 142 or, in the case of NIACs, "also constituting a serious violation of article 3 common to the four Geneva Conventions". 143 Nor does Tajikistan prohibit the ICC Statute crime of conscripting or enlisting children under the age of fifteen years into, in the case of IACs the national armed forces, or, in the case of NIACs, armed forces or groups, or using them to participate actively in hostilities. 144 As noted with respect to the crime of genocide and crimes against humanity, this leaves Tajikistan susceptible to being deemed "unable" to investigate or prosecute these offences by the Court, should it make such a determination in accordance with the principle of complementarity in the event of an ICC investigation.
43. As for Cambodia and Jordan, both States have incorporated the ICC Statute war crimes scheme in their respective national legal orders to a large extent. With regard to the former, Meisenberg identifies the decision taken by legislators not to distinguish between IACs and NIACs in the Cambodian Criminal Code. 145 This method therefore resembles the approach taken by Korea, Timor-Leste, and Tajikistan. At the same time, Meisenberg also singles out notable aberrations between the war crimes proscribed by Cambodia and those listed in the Rome Statute, 146 leading to the conclusion that "this raises concerns about the ability of the Cambodian judiciary to prosecute and punish certain war crimes and may thereby render it 'unable to carry out its proceedings' under Article 17(3) of the ICC Statute". 147 A similar conclusion could equally apply to Jordan, which, though the Military Penal Code prohibits certain war crimes, 148  2. The Court may exercise jurisdiction only with respect to crimes of aggression committed one year after the ratification or acceptance of the amendments by thirty States Parties.
3. The Court shall exercise jurisdiction over the crime of aggression in accordance with this article, subject to a decision to be taken after 1 January 2017 by the same majority of States Parties as is required for the adoption of an amendment to the Statute. 156 ASP, Resolution ICC-ASP/16/Res.5: Activation of the Jurisdiction of the Court over the Crime of Aggression (2017), para.1.
arrest warrants have been issued, and protecting victims and witnesses to ICC proceedings. 52. As of the time of writing, Japan and the Republic of Korea are the only Asian ICC State Parties to have enacted specific domestic legislation to give effect to their obligations under Article 88 of the ICC Statute. Japan does so through dedicated legislation separate from its (limited) incorporation of Rome Statute crimes into its domestic legal order, 174 while Korea implements the cooperation regime in the same piece of legislation in which it incorporates international crimes into Korean law. 175 These two laws will now be compared.
53. Japan's national implementing legislation on cooperation is a single law that delineates the procedures according to which the Japanese authorities are permitted to discharge their duty to cooperate with the Court under the Rome Statute. Chapter II of the Japanese Act on Cooperation with the International Criminal Court, which incorporates Japan's duties under Part IX of the Rome Statute into Japanese law, is divided into a number of parts: Section 2 regulates the provision of evidence, documents, and witnesses; 176 Section 3 provides for the surrender and detention of accused persons; 177 and Section 4 tackles enforcement measures taken with a view to the imposition of a fine, forfeiture of assets, or order for reparations. 178 Notably, Chapter IV of the Act pertains to offences against the administration of justice. 179 Japan consequently follows a "thick" approach 180 with respect to the implementation of its obligation to provide for all of the forms of cooperation specified in the Rome Statute. 54. In contrast, the Republic of Korea adopts a "highly 'thin'" approach 181 to implementing the Rome Statute cooperation regime, with only two provisions in its legislation intended to give effect to its obligations under Article 88 of the Rome Statute. Article 19 of the Korean ICC Act provides for the mutatis mutandis application of its national Extradition Act "with respect to 60. Although Asian States are underrepresented in terms of the Court's membership, a lack of ratifications of the ICC Statute need not be accompanied by a failure on the part of Asian ICC State Parties to implement the ICC Statute in their national legal orders. In the view of former ICC President, Judge SONG Sang-Hyun, "[t]here is no reason for Asian states to shy away from the ICC: the Rome Statute's potential for strengthening the rule of law and contributing to the prevention of atrocities is just as significant here as elsewhere on the globe." 200 To enact implementing legislation, governing crimes and cooperation procedures, would constitute an important step towards realizing this potential in Asia.