One of the subsets of Public International Law is International Criminal Law. On one hand, International Law is all about the law of nations that applies between sovereign states and International actors, and on the other hand, the International Criminal Law is all about individual criminal liability. It is relatively a new body of law and is evolving with the current jurisprudence of international law. The International crimes which comprise of genocide, crimes against humanity, war crimes and the crime of aggression fall within the jurisdiction of international and hybrid courts, for instance, the ICTY, ICTR, SCSL and the ICC. The laws, procedures, modes of liability, defences, evidence, court procedure, sentencing, victim participation, witness protection are also included under the purview of International criminal law. However, Interpretation of International crimes do not comprise of piracy, terrorism, slavery, drug trafficking, or other international crimes.
In the widest sense, International criminal law can be divided into three subtopics :
1. International Aspects of the National Criminal Law
The first category refers to all the questions of jurisdiction, application of laws and acts of the judiciary of one country in criminal cases involving a foreign element. It is most problematic to keep questions of national and international law segregated in dealing with matters of criminal law that cut across national boundaries. Therefore, international criminal law ideally should be treated as including virtually the whole extent of difficulties associated with transnational aspects and applications of domestic structures of criminal law.
2. Criminal Aspects of International Law
Criminal aspects of International Law refers to the principles of public international law that impose obligations on nations with respect to the content of their domestic criminal law and is concerned with international standards of criminal justice. This part of International Criminal Law is closely associated with holding states to observe certain elementary procedural safeguards in administering criminal justice.
3. International Criminal Law Stricto Sensu
This concerns with the questions of International Criminal Law in the material sense of the word which basically means when the elements of a crime are formulated in an international agreement, it is considered to be an international offence. The landmark in the international justice system occurred in 1998 with the adoption of the 1998 Rome Statute for an International Criminal Court, which began to operate in 2002. It is the most important institution that gives effect to the contemporary International Criminal law. However, even after two decades of the establishment of the International Criminal Court it is still an imperfect construction site for more justice at the international level. The fact that ICC has convicted only two individuals till date clearly suggests the existence of various problems and obstacles for the ICC.
The article lists below, the limitations under the realm of the International Criminal Court:
- Article 17 of the ICC provides for the Principle of Complementarity, which means a state shall have the primary duty to exercise the criminal jurisdiction over those accountable for international crimes. The ICC only acts as a last resort in cases in which national criminal law systems fail to provide justice. It generates an inquisitive pair of contradictory forces and hence a predicament for the Court itself wherein ICC will not have any cases if states generally discharge their primary duty to prosecute crimes. On the other side, the international community desires to see substantial evidence of exemplary and successfully handled cases by ICC.
- The court has no executive powers and no means to enforce its own decisions and therefore it is totally dependent on the effective criminal corporation by the state parties. The reason behind such structural weakness shows the wish of court’s creator that sovereignty of state should be put on a higher pedestal.
- Another forbidding truth is the dearth of financial and other resources available to carry out investigations and other work of the Court. It is very difficult for the Prosecutor to carry out such enormous investigations and to collect evidence regarding serious crimes committed in areas which are literally miles away from the Court. Carrying out investigations in areas which are difficult to access involves logistical and procedural complications, unparalleled problems which no other prosecutor or judiciary is faced with.
- ICC cannot function without the efficiency of the work of the office of the Prosecutor. A highly professional and efficient working method of the Prosecutor is required to carry out its duties in an optimal manner. Moreover, ICC cannot be successful without the vigorous and unwavering support from states parties in actual concrete deed.
- Another vital reason that ICC is criticised for is that the office of the prosecutor is targeting African nations and is applying international criminal law selectively on a few particular regions. It can be further substantiated by the fact that 10 out of 11 cases under investigations (trial phase) are carried out in African nations. The withdrawal of Burundi on 26 October 2017 from the Rome Statute is just a small example of a long-lasting confrontation between the ICC and African countries. Therefore ICC needs to extend criminal prosecution to other regions and important development in this regard is the preliminary investigation of the situation in Afghanistan, which can lead to the prosecution of crimes committed by US soldiers. However, the court needs diplomatic support for the same because neither Russia nor USA are signatories to the Rome Statue.
- ICC is plagued by delays that are not inevitable. Some delay is expected because of the complex and political nature of international crimes. However, the reports by the War Crimes Research Office at American University’s Washington College of Law states that Judges of the pre-trial chambers take months to even issue summons and therefore the delay starts even before the trial begins. Another major reason for the delay in the courts abiding by the jurisprudence of International Criminal Law is the preference for live testimony. International criminal tribunals also impose a ban on leading questions which are the most efficient way to bring out non-contentious evidence. All of this forces the court and the parties to take a long way around. Finally, another cause of delay in international criminal cases is the provisions of too many interlocutory appeals. The clearest solution is to limit the availability of such appeals by imposing the final judgement rule.
These are some of the many challenges faced by the ICC. The Global powers have continuously refused to provide support to the International Criminal Justice system who seriously undermine the credibility of the International Criminal court. Today, the world is witnessing heinous crimes everywhere but the crimes have continued unchecked because of the non-interference of the International Criminal Law. For instance, the horrific crimes and grave human rights violations in Syria and Yemen are beyond the purview of ICC. Similarly, neither the UN nor a hamstrung ICC have done anything for the plight of the Rohingya refugees, who are the world’s most persecuted minority. Moreover, what is the use of such a criminal Law which cannot check crimes and fail to prosecute terrorist organisation like ISIS. Therefore, the International criminal justice system is still struggling to bring the world’s vilest criminals to book and if situations remain alike then the future of International Criminal Law stands deeply in peril.
Shambhavi Sinha is a 2nd Year law student at Symbiosis Law School, Pune. She can be reached at firstname.lastname@example.org