Author: A I SUGANDESH, Law student at Government Law College, Dharmapuri.
Edited By: Aman Tyagi, Law Student at UFYLC, Jaipur, Rajasthan
- INTRODUCTION
We know that the highest jurisdiction of the Indian judiciary system is the Supreme Court but, in case of an international crime take place where it should be adjudicated. These are the questions that arise in our minds when an international issue takes place. But there is an international body that deals with the international problems and issues. They have categorized different public bodies to deal with.
The International organization has its own body for the act of adjudication of international crimes and issues. And that is the International Criminal Court (ICC). International Criminal Law is an international public body of law that prosecutes and adjudicates the serious and heinous crimes that take place at the international level. International criminal law simply governs international crimes and dissolves the conflict that arises between the state’s law system.
Keywords (Minimum 5): United Nations, International Criminal Court, international jurisdiction, International Organization, War crimes, The Rome Statues and International Humanitarian Law
SUB-HEADINGS
- Meaning, Definition & Explanation
International Criminal Law is a public body of law that was governed by the United Nations. This body of law suppresses international crimes and the agreement of the government. It allows the norms to adjudicate, prosecute, and punish which are treated as international crimes.
International criminal law is an extended developed body that deals the international crimes. International Law includes laws for the procedure and principles of mode for international crimes. It often encompasses the offenses related to international crimes in society.
- Historical Background
The origin of the international criminal law came from the Hague Convention in 1899[1] and 1907.[2] This convention was about the rules making for the conduct of war and the protection of civilians. International criminal law was efficiently active after World War II which established the Nuremberg and Tokyo Tribunals for the prosecution of the Nazi and Japanese leaders for the conduct of crimes against humanity.
In 1946 United Nations General Assembly recommended a permanent international criminal court. And drafted the principles for the International Criminal Court by the International Law Commission in the 1960s. In 1998 the United Nations Diplomatic Conference adopted the Rome Statutes for the establishment of the International Criminal Court.[3] In 2002 United Nations established the permanent International Criminal Court (ICC).
- Sources of International Criminal Law
International criminal law emerged due to the cause of World War II which made the world and humanity suppressed. The UN made the International Criminal Court the adjudication of offenses related to international crimes. There are five primary sources for international criminal law which was enlisted by Article 38(1) of the International Court of Justice statutes. The sources of the international criminal law are,
- Treaties
- Customary International law
- General principles of law
- Judicial decisions
- Writing of eminent jurists
Article 38 of the International Court of Justice Statue which enlisted the source of international criminal law that related to the nation’s sovereign.
- “International conventions, whether general or particular, establishing rules are expressly recognized by the contesting states;
- International customs, as evidence of a general practice accepted as law;
- The general principles of law recognized by the civilized nations;
- Subject to the provisions of Article 59, judicial decisions and the teachings of most highly qualified publicists of the various nations, as subsidiary means of the determination of rules of law.”[4]
The Rome Statutes (1988) act as the rules and norms of the international criminal court even though it is not identical. The procedure and the principles of the international criminal court involved in the evidence, liability, defense, penalty, victim participation, witness protection, mutual legal assistance, and cooperation.
- Treaties
The Treaties are the primary sources for the implementation of the international criminal law in the society. The treaties act as the emerging sources of international criminal law where the rules and procedures were primarily adopted. Such conventions and treaties are the treaty-based agreement for the formation of international criminal law.
The treaties such as the Hauge Convention (1907), Geneva Convention (1949), Genocide Convention (1949), and the Torture Convention (1984) provided for the formation of the international criminal court. The statutes of the International Criminal Tribunal for the former Yugoslavia (ICTY)[5] and the International Criminal Tribunal for Rwanda (ICTR)[6] were formed by the resolution of the UN Security Council which is also known as the source of international criminal law.
- Customary International Law
Customary international law is described in Article 38(1) of the International Court of Justice statute. The important components for customary law are that of practice and the opinio juris. Those components were described in the North Sea continental Shelf Judgement (1969).
“The idea of Opinio Juris Sive Necessitaties itself implies the demand of such belief, i.e., the presence of subjective elements. As a result, the participating nations must think they performing a legal obligation.”
Even customary law acts as the supportive and not as the whole basis of the. criminal prosecution. It represents the principles used for the codification of law.
- General Principles of law
The General principle of law in international criminal law is the standard source of law. The necessity of the general principle works when there is a failure in the conduct of treaty or convention to provide the remedy.
The general principle of international law becomes complicated when there is an addition of extraterritorial elements with it. It is important to balance the other rules of a nation and the addition of extraterritorial rules by the general principle of criminal international law.
The general principle of international criminal law includes the concept of basic jurisdiction, statutory limitation, Nullum Crimen, Nulla Poena Sine Lege, Ne Bis in Idem, and Immunity.
The Nullum Crimen, Nulla Poena Lege states that “no one may be convicted or punished for an act or omission that does not constitute a criminal offense.”[7]
The Latin maxim of Ne Bis in Idem states that no person should be prosecuted or punished more than once for the same offense, which ensures protection against the arbitrary nature of procedure at both national and international levels.
- Judicial decision
As the judicial decision is also a source of international criminal law, it was considered in two ways
- The first is that the court recog the precedent and the precedent of Opinio Juris.
- The court strives through the norms as the customary principle in the judgments.
- Writings of eminent jurists
The Eminent jurists are part of the International Commission of Jurists (ICJ) including the lawyers and human rights defenders that are united by the rule of principles of the Eminent Jurists Panel 2004. The piece of work by eminent jurists was also considered as the source of international criminal law. In the drafting of the Law of Treaties (1969) the International Law Commission had collectively considered according to the obligation of the non-parties to the treaty.
“The general rule regarding third states”[8]. This rule is a “corollary of the principle of consent and of the sovereignty and independence of states” (Brownlie 627).
- International crimes
The International Criminal Law is the system that deals with international crimes. It is responsible for the committing of most heinous crimes such as genocide, war crimes, and crimes against humanity.
Heinous most crime such as genocide is considered among the three forms of crimes in the Rome Statue International Criminal Court. Even though in the present era the offenses that international criminal law considers the most heinous offenses are war crimes, genocide, and crimes against humanity.
War crimes
War crimes were defined in the Geneva Convention (1949) and in the Additional Protocols of the Geneva Convention (1977) which state that war crimes as a violation of the norms and conventions. The norms of war crimes are applicable when there is a conflict with the armed forces between the nations or armed organization groups. The offenses of war crimes caused by the violation of the international humanitarian were dealt with by the International Criminal Tribunal for former Yugoslavia and Rwanda.
Genocide
The term Genocide was coined by Raphael Lemkin in 1944 in his book[9]. Genocide was originally described after World War II which states as the international killing and cause of the destruction of people or groups of organizations.
The term Genocide was defined in the Genocide Convention (1948) which intends to cause destruction or eradicate race, nation, religious group, ethnic or whole.
Genocide is the most heinous crime or aggravated crime which is also known as “the crimes of crimes” among international crimes. The Genocide was described under Articles II and III of the Genocide Convention which has the exact to Article 2 of International Criminal Tribunal Rwanda Statue and Article 4 of the International Criminal Tribunal for Former Yugoslavia Statue.
Crimes against humanity
The term crimes against humanity was defined as the “murder extermination, enslavement, deportation and other inhumane acts committed against the civilian population, before or during the war, or persecutions of political, racial, or religious grounds in the execution of or in connection any crim with the Tribunal’s jurisdiction, whether or not a violation in the domestic law of the country where perpetrated.”[10]
- Significance of the International Criminal Law system
They are some significant aspects of the procedure in the International Criminal law system
- No person under the age of 18 shall be prosecuted by the ICC
- The prosecutor should obtain both incriminating and exoneration of evidence during the conduct of inquiry.
- The defendant is considered to be innocent until the guilt is proven.
- The prosecutor should take the preliminary investigation.
- In the event of a pre-trial the court issue an arrest warrant and they ensure sufficient evidence of the arrest.
- If new evidence is produced after the verdict of a case without the guilty the prosecutor may reopen the case.
- International Criminal Court
The International Criminal Court was based in the Hauge, Netherlands. The court is composed of eighteen judges each nominated by the member countries and representing different nations. This composition is based on the gender balance of judges. The court has its president and vice-president in charge who are elected among the judges for the court administration. The judges and prosecutors were chosen for a period of nine years as non-renewable. The court has jurisdiction over the offenses they are, genocide, war crimes, crimes against humanity and crimes of aggression.
- CONCLUSION & COMMENTS
The scope of International Criminal law has a wider view which deals with the protection of human rights from international offenses. Crimes like the war crimes and genocide are still considered to be a heinous off against humanity. Even though there are treaties and conventions regarding international crimes it is a common duty to have a standard ideology of common human behavior in society. Those cause of the crime shows the differences from animals.
- REFERENCES
- Books / Commentaries / Journals Referred
- Journal of International Criminal Law by Heybatollah Najandimanesh Anna Oriolo
- Online Articles / Sources Referred
- Statutes Referred
- International Criminal Court
- Fi Hague Peace Conference (1899)
- Second International Peace Conference (1907)
- United Nations Diplomatic Conference (1998)
- International Court of Justice Statue
- Geneva Convention (1949)
- Genocide Convention (1949)
- Torture Convention (1984)
- International Criminal Tribunal for Former Yugoslavia Statue
- International Criminal Tribunal for Rwanda
- UN Security Council Resolution
- The Rome Statues (1988)
- International Military Tribunal Charter
[1] First Hague Peace Conference (1899)
[2] Second International Peace Conference (1907)
[3] United Nations Diplomatic Conference (1998)
[4] Article 38 of the International Court of Justice statute
[5] UN Security Council Resolution 827
[6] UN Security Council Resolution 955
[7] Article 15 of the International Covenant on Civil and Political Rights
[8] Article 34 of the Vienna Convention
[9] Axis Rule Occupied in Europe: laws of Occupation, Analysis of Government, Proposal of Redress.
[10] International Military Tribunal Charter.
