Japan’s role in the demise of the International Criminal Court

It was interesting to see the President of the International Criminal Court (ICC), Tomoko Akane of Japan, warning recently about “the demise of international rule of law” after the United States targeted her, and another ICC functionary, with sanctions. She joins eight other judges, one former Chief Prosecutor and both Deputy Prosecutors, and their families, in having been sanctioned by the American government. It will be tough for them: No more bank accounts, credit cards, PayPal, Microsoft, payroll software, Cloud, Netflix, Amazon, eBay, Ubers or Uber Eats, shopping on Fifth Avenue,  holidays at Disney World and no more judgments written by AI.  And Alexa will no longer turn the lights on or play Judge Judy when asked to do so.

Madame Akane’s comments are remarkable for several reasons. It is extraordinary – but not surprising – that she warned of the “demise of international rule of law”, that is to say the death of the International Criminal Court, because of the Trump administration’s sanctions on her and other Court employees. To paraphrase Shakespeare, however, “the lady doth protest too much, methinks”. In so doing she chose to ignore the fact that the ICC has been in crisis and terminal decline for most of its existence.

There is very little that President Trump needs to do that would make matters worse for this Court or its reputation outside of coffee shops in The Hague. Madame Akane’s ICC has shown itself to be terminally dysfunctional in the 24 years of its existence. The Court is notorious for having ersatz judges unable to judge mainly because most are unqualified to do so, prosecutors that are unaware of the concept of presumption of innocence and can’t prosecute their way out of a paper bag, and, if that wasn’t bad enough, did find time to be caught up in sexual misconduct scandals which have themselves almost destroyed the Court (who can forget the Economist’s ‘An ICC prosecutor in the dock’). It is a terrible indictment of Madame Akane’s presidency of the Court that on her watch an international justice website found it necessary to report that “[t]he first three prosecutors of the International Criminal Court have failed to be of high moral character.”

Unsurprisingly, the Court’s proceedings thus far have often been questionable where not simply farcical – labelled even by sympathetic legal scholars as “slapstick comedy”. The ICC has failed, and failed really badly, both on every claim made by it or on its behalf and by any performance metric. For starters, despite being sworn to uphold the Court’s constitutive document, the Rome Statute, and the rule of law, judges and prosecutors at the Court have repeatedly broken or bent the law as set out in the Statute. Far from being an independent and impartial court, the Court grants special prosecutorial rights of referral and deferral to the Security Council, the world’s most political body – and by default its five permanent members (three of which are not even ICC members). Its independence is compromised further by the fact that the European Union provides two-thirds of its budget, again in contravention of the Rome Statute. Despite pretensions to being the international criminal court, it is merely a treaty-based organisation representing one-third of the world’s population, and is losing member states on a regular basis.

The Court’s promise to deliver swift justice jars with the fact that the Court has detained innocent people for up to ten years before deciding there was no case for them to answer. It has also engaged in aggressive racist racial profiling. For the first 20 years of its existence the ICC had only ever indicted black Africans and it has only ever convicted black Africans. The Court has consumed $3 billion to date to secure 6 (questionable) core convictions of these black Africans. That is to say each conviction cost half a billion dollars. The International Criminal Tribunal for the former Yugoslavia, by comparison, convicted 90 individuals at a cost of about $26.7 million each. The largely European taxpayers funding this inept gravy train should demand their money back.

Despite Madame Akane’s attempts to deflect away from the Court’s self-inflicted death spiral by pointing in the direction of Washington, the Court’s pre-Trump demise has been outlined for quite some time. Mark Freeman, a noted international law expert, said of International Criminal Court in 2025: “Some could use a . . . metaphor, the idea of a ‘dead man walking’. The ICC may have been a dead man walking all this time.”  Justice in Conflict, an international law blog, observed in 2015: “Yes, the ICC is in Crisis. It Always Has Been”, adding “It has become increasingly common for scholars and observers of the International Criminal Court (ICC) to state that the ICC is in ‘crisis’.” Counsel, the official journal of the Bar of England and Wales, similarly warned ten years later in 2025 that the “International Criminal Court [was] in crisis”, further noting: “The International Criminal Court (ICC) is in trouble, and its big problem isn’t Trump’s sanctions, missile threats from the Kremlin or its dearth of cases, but a number. Six is the total number of war criminals jailed by the ICC, after 22 years of operations and $3 billion spent . . .  Such a paltry return, in a world beset by conflict, has left many wondering if the court is worth saving. Or, indeed, what its 900 staff do all day.” In January 2019, the Oxford Transitional Justice Research Seminars aired a podcast entitled “The Death of the ICC?” Academic journals were publishing articles entitled ‘Is the International Criminal Court Dying? An Examination of Symptoms’, which noted that the ICC “has been derided as a dead or dying institution”, that “the perceived impotence of the ICC has . . . led to a loss of confidence in the institution and its ability to secure justice” and “that if the ICC remains on its current trajectory, it will die.” Thierry Cruvellier, an established expert on international justice and the editor-in-chief of the respected Justiceinfo.net website, has also posed the question: “Is the possible demise of the International Criminal Court a brutal surprise or the chronicle of a death foretold? These are not wishful comments made by John Bolton: They are made by supporters of the Court.

Before playing the blame game Madame Akane should look closer to home. It is the case that in and of herself, the faux Judge Akane epitomises the institutional necrosis at the heart of the Court. Akane was elected as a judge of the ICC by the Assembly of State Parties (ASP), the body which governs the ICC, to serve from 2018-2027: In March 2024 she was elected President of the International Criminal Court for the term 2024–2027. She is a prime example of the repeated election as judges of individuals who in some cases have never even been lawyers, let along judges, before their appointment as an ICC judge.

There have been three Japanese judges at the International Criminal Court to date: Judge Fumiko Saiga (served 2007–2009); Judge Kuniko Ozaki (served 2010–2018, including as Second Vice-President of the Court; and the incumbent Judge Akane. None have been real judges as would be understood in the United Kingdom or the United States. They were diplomats, civil servants, academics and politicians but not judges. Their only real qualification for the job was that they spoke English.

When Japan joined the ICC in 2007, after repeated courting by the European Union, Japan became the biggest single contributor to the ICC that year, paying 22 per cent, or 20 million Euros, of the Court’s budget. In what was an all too obvious quid pro quo, Japan was allowed to nominate Fumiko Saiga as an ICC judge. The facts that Saiga had neither law degree nor any legal training or legal experience did not in any way hinder her spontaneous election as a “judge” by the ASP. In an example of carefully orchestrated, corrupt FIFA-esque vote-trading and bloc-voting she received the highest number of votes that year, winning her appointment in the first round. When Saiga died in office she was replaced by another unqualified Japanese diplomat, Kuniko Ozaki, who similarly had never practised as a lawyer or been a judge before. Judge Akane was “elected” to keep Japan’s seat warm on the bench after Ozaki’s lacklustre and scandalous term came to an end. Japan has continuously been allowed to place a judge on the ICC bench since 2007. The Japanese government has nominated Yoshimitsu Yamauchi as its candidate for the ICC judicial elections scheduled for late 2026: his ICC CV highlights that he speaks excellent English.

The ICC’s three Japanese judges (and Japan’s candidate for election later this year) are a case study in the fatal crisis facing the Court – the decline and fall of the credibility, professionalism and competence of the Court. In 2008, The Economist explored the issue of whether the selection processes to the international courts led to the appointment of “government hacks and lickspittles, with little or no judicial experience”. The ICC bench has no shortage of either. The Guardian newspaper reported that “Unqualified judges . . . have been appointed to key positions because of highly politicised voting systems and a lack of transparency.” The newspaper also stated that “[c]ritics say . . . the practices threaten the future of the international criminal court”.

Before becoming an ICC judge, Saiga had been a politician and then served as the Japanese Ambassador to Norway and Iceland from 2003-2007. She also had considerable experience in Japan’s relations with the UN. She had no legal training or judicial experience, but did have a degree in English studies. The British legal commentator Joshua Rozenberg asked the key question relevant to all three Japanese judges and many others on the ICC bench: “[S]urely someone who is going to have to give binding legal rulings in court without the assistance of a legal adviser needs some experience as a lawyer?”

Ozaki similarly had no experience as a judge or as a practising lawyer: she has an arts degree. Ozaki is a career civil servant. Her ICC CV described her as a “highly competent career diplomat”. Most of her career has been at the Japanese Ministry of Foreign Affairs. She has described her professional life as that of “a diplomat, a UN official or an academic”. Up to her appointment as a full judge at the ICC, she served from 2006 to 2009 as Director of the Division for Treaty Affairs, United Nations Office on Drugs and Crime. She had also served as an ambassador to the UN Convention on Biological Diversity. There is no mention of law whatsoever. Ozaki’s total lack of courtroom experience, either as a judge or lawyer, did not prevent her being appointed within two years as the presiding judge in Trial Chamber V, trying four Kenyan nationals for crimes against humanity in a very complex case that perhaps unsurprisingly would collapse in chaos.

Akane was a Japanese civil servant, academic and diplomat before being elected as an ICC judge. She was the head of the International Cooperation Department in the Japanese Ministry of Justice between 2009 and 2010, and from 2014 to 2016, she was the director-general of the Research and Training Institute of the Ministry of Justice. From 2016 until joining the ICC, she served as an ambassador. Her total lack of courtroom experience as a judge did not prevent her being elected as President of the Court. The Japanese nominee for election as a judge later this year, Yamauchi Yoshimitsu, follows in the footsteps of his fellow diplomats. He has never been a judge. He is a diplomat, civil servant and a former assistant vice-minister. Most recently he has been Director of the United Nations Asia and Far East Institute for the Prevention of Crime and the Treatment of Offenders.  

All three Japanese ersatz judges (and many other similar “judges”) were elected by rote through the aforementioned “vote-trading” racket. The practice of vote-trading at the ICC has fatally undermined the Court. It has resulted in incompetent judges and sub-prime justice. Human Rights Watch has publicly warned that vote-trading is “antithetical” to securing the most highly qualified judges and conceded that vote-trading for judicial positions dates back to the very first elections for judges in 2003. It has continued ever since and may well secure the election of Japan’s next ICC, as long as the cheques keep rolling in.

The sort of vote-trading that secured positions on the ICC bench for three Japanese diplomats, rather than real judges, has been a feature of the Court since 2003 and has wrecked the judicial credibility of the ICC. In October 2024, the International Bar Association once again called upon ICC member states to “reject vote trading as it undermines the Assembly’s efforts to elect highly qualified judges and the credibility of the ICC.” Raising the Bar, an Open Society Justice Initiative report published in the same year, concluded that “vote trading and a toxic campaigning culture corrupt[s] the judicial election process”.  The Independent Expert Review of the failings at the ICC, commissioned by the ASP and released in 2020, admitted that “the Court’s problems may be in part the result of the standard of some of the Judges . . . some Judges have owed their success in the ballot more to electoral horse-trading than competence.”

For all Madame Akane’s attempts to deflect away from the ICC’s fatal self-inflicted wounds, the ICC can be seen as more Augean stable than reputable Court of law.