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Development of International Criminal Justice

Discuss about the Future of International Criminal Court.

The main aim of criminal law is to achieve the justice on behalf of the society which has been victimized, and on other hand international criminal law tries to achieve the justice in society but on larger scale. Everyone is affected when they see or hear that any crime is committed against the humanity or any genocide is occurring with an innocent men, women, and children and they are being terrorized and destroyed.

As criminal Courts of states enforce national criminal law and also attempt to achieve the justice on behalf of the state, in same manner international criminal Court prosecute those persons who offends the international criminal law for the purpose of bring peace and order in international community. This paper analyzes the statement that “despite of its noble intentions, international criminal justice is affected by the issues related to power and politics”. It must be noted that this statement is examined on the basis of development of international criminal justice, its aim, and its process (Henham, 2007).

Structure of this essay includes development of international criminal justice in lieu of Nuremberg traits, aims of international criminal justice, and impact of power and politics on ICJ. Lastly, paper is concluded with brief conclusion.

There are number of International Courts and tribunals which had prosecuted international crimes since the establishment of the United Nations system in 1945. First tribunal set up by this system was the International Military Tribunal at Nuremberg, Germany, and this tribunal was established by treaty in August 1945 and one more international military tribunal was established in Tokyo, Japan. This tribunal was created in 1946 by the special proclamation of the Supreme Commander of Japan, U.S. General Douglas McArthur.

Later, UN Security Council in the mid-1990s established International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal in Rwanda (ICTR). These tribunals were established after the happening of the human catastrophes which involved deliberative, large scale, and premeditated crimes in the Balkans and Central Africa. Subsequent aspect of hybrid and tribunals followed the concept of Yugoslavia and Rwanda, mandated to prosecute crimes at both domestic and international level. Almost four of these will considered as International Courts which includes the special court for Sierra Leone, and the extraordinary chambers in the Courts of Cambodia, the Special Tribunal for Lebanon, and the Special Panels of Dili, Timor-Leste.

Aims of International Criminal Justice

Additionally various domestic courts got the power to prosecute international law which includes the Regulation 64 Panels in Kosovo and the War Crimes Chamber in Bosnia Herzegovina. All the experiments related to tribunals were considered as temporary and possessed limited temporal, territorial, and subject matter jurisdiction that initiated after the conclusion of conflict. This was not applicable in case of ICTY which was established when the conflict is still continued. After considering above facts, it is clear that these tribunals are different from the permanent international Court stated in The Hague, and their experience related to constructing an institution that resolved some of the more burdensome, lengthy, and expensive aspects of the ICTY and ICTR.

The Nuremberg and Tokyo trials after the World War II, and this were considered as first attempt to criminalize the aggressive war and abuses against civilian populations. In the leadership of American prosecutor, and U.S. Supreme Court Justice Robert Jackson, the Nuremberg trial and its sister tribunal represents the law over the power, but it must be noted that these tribunals also represent justice (Rhea, 2008).

ICJ is considered as missing link in the international legal system, and the ICJ at The Hague decided the cases between the states and not the individuals. In case international criminal court does not deal with individual responsibility as an enforcement mechanism then acts of human rights does not get punished.

If ICC does not deal with crime in individual responsibility by way of enforcement mechanism then it might be possible that acts related to genocide and violations of human rights did not get punished. From last 50 years, many events occurred which can be considered as crimes against humanity and war crimes for which not even single individual is held accountable such as in Cambodia in 1970 almost 2 million people were killed by the Khmer Rouge. In case of armed conflicts of Mozambique, Liberia, El Salvador and other countries number of lives were losses which include majority numbers of unarmed woman and children’s (Simmon, 2016).

As per the statute of ICC, this Court has jurisdiction over aggression, genocide, crimes which are against the humanity and war crimes. Article 8 of the statute states the war crimes on which ICC can exercise its jurisdiction. It includes number of the breaches which are stated in the 1949 Geneva Conventions, and it also includes serious violation of IHL which can also be considered as war crimes without considering whether such crimes were committed by armed forces of national and international level. Those offences which were specifically considered as war crimes include:

  • Sexual slavery, rape, enforced prostitution, forced pregnancy or other forms of sexual violence.
  • It also includes use of children which are under the age of 15 years to participate actively in the hostilities.

Impact of Power and Politics on the ICC

Therefore, ICJ is required to deal with these issues and bring order and peace in the community.


International criminal court is permanent Court which prosecutes the individual on genocides, crimes which are against the humanity, and war crimes. ICC set four primary targets for the purpose of ensuring that worst preparatory must be held accountable for crimes committed by them and for the purpose of serving the Court as last resort which has power to investigate the matter, prosecute the offender, and punish the preparatory in lieu of genocides, crimes which are against the humanity, and war crimes. It also helps by assisting the national judiciaries in conducting the investigation and prosecution of perpetrators which allowed the state and give opportunity to first investigate the matter and prosecute for same and also help in promoting the peace and security.

ICC achieve its primary objectives through negotiations with states, NGO’s and also with the regional bodies which help the ICC in achieving their primary objectives and to prosecute the worst perpetrators in lieu of genocides, crimes which are against the humanity, and war crimes. Usually, it is difficult process for such larger organization such as tension identified within state from criminal activities such as Lubanga does not easily allowed the interference of any outside authority and applies any major power, and this is happen in many other cases such as present circumstances of Libya (ICC, n.d.).

ICC usually founds the treaty known as Rome Statute which allowed the jurisdiction of ICC over four main crimes, and these crimes include:

  • First crime include crime of genocide which is defined as specific intention of national, ethnic, racial or religious group  to destroy complete or partly by killing the members of own group and members of other groups, or by causing serious injury and mental harm to the members of own group and members of other groups. Intentionally destroying the group condition either in whole or in part by imposing measures which prevent the births within the group or by forcibly transferring the children of one group to another group.
  • Second crime considered by ICC is the crime against humanity which are considered as serious violations of humanity and considered as large scale attack against the civilian population. Rome statute defined 15 different forms of crime against humanity and these offences include Sexual slavery, rape, enforced prostitution, forced pregnancy or other forms of sexual violence.

It also includes use of children which are under the age of 15 years to participate actively in the hostilities.

  • Thirdly war crimes are considered breach of Geneva conventions in lieu of armed forces and it includes use the children’s a soldiers, killing and torture the persons as civilians or torture the prisoners of wars, directing the attacks against the hospitals and historic monuments, etc (ICC, 2017).

The idea behind the ICC defines the relationship exists between the International Criminal Court (ICC) and national jurisdictions, and this relationship is applauded and also criticized. The basic concept behind the ICC defines that states have primary responsibility to investigate the matter and to prosecute the crime in the Rome statute, and ICC is considered as backup Court. As per this idea ICC respect the sovereignty of the state and also place significant control in the national jurisdiction of state. On the other hand, secondary role of ICC weakens the position of the Court which reduces the accountability of ICC in matters related to genocide, crimes against humanity, and war crimes.

The most important issue exists between the relationships between the two is ICC is considered as secondary Court to national jurisdictions, and because of this it becomes more weaker as compared to other international Courts such as ICTY and ICTR as these Courts are not considered as secondary court to national jurisdiction. The major effect related to this inherent weakness is that Court possessed less authority over the states such as states have power to decide whether they want to continue the investigation and prosecution or not (Carter, 2013).

Process of the ICC

Now days, it is justified to said that international criminal justice is influenced with politics. From many years, war crimes were called to the tribunals and critics stated that it was clearly influenced by the politics. After some time this concept has become more acceptable even the proponents of institutions such as ICC is considered as project of international criminal justice which is not only influenced by the politics but itself are political in nature. Some hold outs are still present which states that folks living on islands were considered as pursuit of accountability for being the worst human beings on earth and it also needs  project reflects politics. Therefore, the fact states that ICJ is political in nature are considered as true fact because ICJ must be political in nature and it cannot sustain in any other way. However, maximum aspects of ICC states that other tribunals does not reflect concept of legal and judicial projects but they reflect the political promises held by international system (Megret, 2002).

Criticism is growing in continuous basis against the ICJ, and this is not only happening because of the performance of international criminal justice actors but it also happens because of the power distributed among them. Power play very important role because states and sovereign governments are considered as major stakeholders of ICC which influence the decision making power of ICC for their own sake which directly reduce the efficiency of ICC decision making (Ainley, 2015).

Conclusion:

After considering the above facts, it is clear that ICC is influenced from both politics and power, but it also ensures its goal of peace and order in community. Four major goals of ICC includes prosecutes the individual on genocides, crimes which are against the humanity, and war crimes. It also ensures that worst preparatory must be held accountable for crimes committed by them and for the purpose of serving the Court as last resort which has power to investigate the matter, prosecute the offender, and punish the preparatory in lieu of genocides, crimes which are against the humanity, and war crimes. Maximum aspects of ICC states that other tribunals does not reflect concept of legal and judicial projects but they reflect the political promises held by international system.

References:

Ainley, K. (2015). The responsibility to protect and the International Criminal Court: counteracting the crisis. International Affairs, Volume 91 (1). pp. 37-54.

Carter, E. L., (2013). The Future of the International Criminal Court: Complementarity as a Strength or a Weakness?. Available at: https://openscholarship.wustl.edu/cgi/viewcontent.cgi?article=1446&context=law_globalstudies. Accessed on 27th October 2017.

Henham, R. (2007). Theorising law and legitimacy in international criminal justice. International Journal of Law in Context, 3,3 pp. 257–274.

ICC, (2017). How the Court works. Available at: https://www.icc-cpi.int/about/how-the-court-works. Accessed on 27th October 2017.

ICC, (2017). Understanding the International Criminal Court. Available at: https://www.icc-cpi.int/iccdocs/PIDS/publications/UICCEng.pdf. Accessed on 27th October 2017.

Megret, F. (2002). The politics of international Criminal Justice. Available at: https://www.ejil.org/pdfs/13/5/1586.pdf. Accessed on 27th October 2017.

Rhea, M. J. (2008). The Nuremberg effect on contemporary international criminal justice. Criminal Justice Studies Vol. 21 (4), Pp-361-372.

Simmon’s A. B. (2016). Can the International Criminal Court Deter Atrocity?. Faculty Scholarship.Paper 1686.

Darnaska, R. M. (2008). What is the Point of International Criminal Justice. .Faculty Scholarship Series.Paper 1573.

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