Principles use to Formulate International Law and Proceedings

Advertisements

Spread the love

Post Views: 274

This article is written by Naman Jain Pursuing BBALLB(HONS.) From Galgotias University, an intern under Legal Vidhiya.

Abstract

The basic elements of the international legal system remain a matter of debate. Constitutionalism is only the latest extension of this ongoing conversation about the nature of international law. In this context, certain fundamental aspects can be referred to as the “constitutional processes” of the system. The primary argument presented in this article is that principles and ‘general legal principles’, two often overlooked categories of norms, are particularly useful tools for strengthening these constitutional processes. Although principles and general principles are often conflated, they are distinct and fulfill different roles in the architecture of the international legal system. Renewed attention and discussion of norms beyond treaties and customs are essential to improve the systemic elements of international law. Two broad examples are given to support this claim. In attempting to redesign or reconceptualize the system, the framers failed to truly engage the system. However, the popularity of the constitutionalism debate presents an opportunity to re-examine the basic norms of the system and consider their potential to strengthen the constitutional processes of international law.

Introduction

International criminal law is a body of legislation that prohibits specific types of conduct that are considered serious crimes and governs the procedures for investigating, prosecuting, and punishing those types of conduct, and makes criminals personally responsible for their actions. Repression of serious violations of international humanitarian law is essential to ensure compliance with this branch of law, especially given the gravity of specific violations classified as war crimes for the entire international community must be punished.

In the search for systemic coherence, international lawyers have resorted to the language and concepts of domestic constitutional law, but the very nature of the international legal system continues to be debated. Approaching international law from a constitutionalist perspective and trying to assign constitutional labels to the international system is not a problem in itself, but it does not allow for significant changes.

Rules and General Principle of International Criminal Legal System

If the constitutive processes of international law are to be identified, developed and specified, there must be clarity about the nature and functions of the system’s norms. Put another way, international lawyers cannot facilitate a shift in the foundations of the international legal system unless those foundations have been precisely identified and engaged with. Explaining the distinction between rules and principles in the legal system has been the central conceptual device of many legal theorists. this section refers to the distinction between rules and principles in international law. asserting three main requirements:

There is a logical conceptual distinction between the two categories of norms;
This distinction has been accepted in the international legal system; and
General Legal Principles within the meaning of Article 38 paragraph 1 letter (c) of the Statute of the International Court of Justice were designed to be and in fact function as rules.

General Principal of International Criminal Court

International Criminal Law [ICL] includes a number of general principles that serve as the basis and prerequisites for prosecuting persons for international crimes such as genocide, crimes against humanity, war crimes, aggression and other crimes against the peace and security of mankind. The term “general principles of law” recognized by civilized nations refers to principles which are so general as to apply to all legal systems which have reached a similar level of development. International criminal law is based on a number of basic ideas. It is increasingly important to coordinate respect for these principles as international crimes increasingly involve extraterritorial aspects, requiring increased engagement between states. States must comply with them while respecting their own national criminal law principles and any special principles contained in the agreements of the regional authorities to which they relate.

Individual Criminal Responsibility and their Principle

Individuals can be held criminally responsible under international criminal law not only for committing war crimes, crimes against humanity or genocide, but also for attempting, enabling or aiding and abetting the commission of such crimes. Individuals who plan, investigate or direct the commission of such crimes may be held liable. Some of the principle are discussed as:

Principle of ICR was discussed in Article 25 of ICC Statue In Article 25, paragraph 1, it specifies that the court has jurisdiction over natural persons on the basis of this statute. and Article 25 of the Rome Statute of the International Criminal Court describes the principle of “individual criminal responsibility”. This principle specifies that individuals are responsible for their own actions and may be held criminally responsible for actions that constitute crimes under international law.

In addition, according to paragraph 2 of Article 25, a person who commits a crime under the jurisdiction of the court is solely responsible and subject to punishment according to this law.
According to paragraph 3 of article 25 of the statute, a person is criminally responsible and subject to punishment for a crime under the jurisdiction of the court if:
Regardless of whether the third party is criminally responsible or not, commits such crimes alone, with others or through a third party.
Ordering, inducing or encouraging the commission of any crime actually committed or attempted.
Aiding, abetting, or otherwise committing or attempting to commit such crimes (including providing the means to commit them).
be done with the intention of furthering the group’s illegal activity or criminal purpose, if that activity or purpose involves the commission of an offense within the jurisdiction of the court;
be done with the knowledge that the group intends to commit a crime;

Article 26 of the ICC Statute deals with the principle of exclusion of jurisdiction over minors Article 26 of the Rome Statute of the International Criminal Court states the principle of “non-application of legal restrictions” in the prosecution of international crimes. This means that there is no time limit for prosecuting war crimes, crimes against humanity and genocide, regardless of when they occurred. This article also stipulates that limitations cannot be used to prevent the prosecution of such crimes. This principle shows the seriousness of international crime and the need to hold perpetrators accountable even long after the crime has been committed. Article 26 talks about the exclusion of jurisdiction over persons under the age of eighteen. Any person who was under eighteen years of age at the time of the alleged crime, also referred to as a minor, is not subject to the court’s jurisdiction.

Article 27 of the ICC Statute deals with the principle of irrelevance of official capacity Article 27 of the Rome Statute of the International Criminal Court expresses the principle of “irrelevance of government services” in the prosecution of international crimes. This means that official status, such as holding a high government or military position, does not provide immunity or immunity from prosecution for international crimes such as genocide, crimes against humanity and war crimes. Regardless of their public capacity, they are criminally responsible and prosecuted by the International Criminal Court. This principle reflects the mission of the International Criminal Court to hold individuals accountable for their actions and ensure justice for victims of international crimes. Article 27 of this degree includes two different concepts: general competence and personal immunity.

Section 27(1) of the Act states that the Act applies equally to all persons irrespective of their government jobs. In particular, the official status of a head of state or government, a member of state or parliament, an elected representative or a public official does not protect a person from criminal liability under this law and is not a basis for abatement. Not even. Punishment or penalty imposed. In other words, it introduces the doctrine of “official competence”. For example, state officials cannot be held criminally liable for acts performed on behalf of the state.

Article 27(2) of the Constitution stipulates that, whether based on national or international law, no immunity or special procedural rules regarding the general capacity of a person shall be imposed by the court against that person. Exercise your jurisdiction.

Article 28 of the ICC Statute deals with the principle of responsibility of commanders and other superiors Article 28 of the Rome Statute of the International Criminal Court states the principle of “responsibility of commanders and other superiors” in the prosecution of international crimes. This principle applies to military commanders, civilian superiors, and positions of authority whose subordinates knew or should have known of the crimes and failed to take action to prevent or punish them. The article also outlines the criteria for determining whether an individual is a commander or superior and the factors to be considered when assessing responsibility for crimes committed by subordinates. This principle supports the mandate of the International Criminal Court to hold individuals accountable for their actions and to ensure justice for victims of transnational crimes, including those who may have committed them as part of a wider chain of command. Article 28 distinguishes between civilians and military superiors. Its mental criterion is that the superior was aware, should have been aware, or knowingly ignored the fact that the subordinates were about to commit or commit a crime. It requires a causal aspect relating the superior’s misconduct to the crimes committed, but contains no express provision requiring the superior to be punished for previously committed crimes.

Article 28 (a) of the Statute states that a military commander or anyone effectively acting as a military commander is criminally responsible for crimes committed by forces under his effective command or under his effective authority and control;

(i) A commander or military person knew or should have known that a subordinate was committing or intending to commit such a crime. And

(2) all necessary and reasonable measures within the scope of the authority of that commander or military person to prevent or suppress the commission of a crime or to refer the matter to the relevant authorities for investigation and prosecution; lack of action

Article 28 (b) of the Statute provides that a superior is criminally liable for criminal acts committed by subordinates under his actual authority and control if:

the superior either knew or willfully ignored evidence that subordinates were committing or planning to commit such crimes;
the offenses involved conduct that is under the effective control and supervision of a superior; and
the supervisor failed to take all necessary and reasonable measures within his or her ability to prevent or suppress their conduct, or to report the incident to the appropriate authorities for investigation and prosecution.

Article 29 of the ICC Statute addresses the principle of inapplicability of statute of limitations. Article 29 deals with the inapplicability of limitation periods and states that crimes committed within the jurisdiction of the Court are not subject to any limitation period. This principle foresees the unlimited prosecution of the most serious international crimes such as genocide, crimes against humanity and war crimes. This means that such crimes can be prosecuted years after they have been committed, and no statute of limitations applies to prevent prosecution. This principle reflects the seriousness of international crime and the need to hold perpetrators accountable for their actions, even after considerable time has passed. This will ensure that there is no safe haven for those who commit such crimes and that justice is served to the victims of these heinous acts.

Article 30 of the ICC Statute deals with the principle of the mental element. Article 30 of the Rome Statute of the International Criminal Court explains the principle of “mental factors” related to the prosecution of international crimes. This principle stipulates that a person can be held responsible for a crime only if he has the necessary mental component or intent to commit the crime. This article discusses various psychological factors that can be applied to different types of crimes, such as the intent to commit genocide and the knowledge that an attack is directed against a civilian population. We also know that in some cases, such as certain war crimes, a mental component may be created without any specific intent to commit a crime. This principle shows the importance of distinguishing between intentional criminal behavior and other behaviors that may be punishable but may not rise to the level of criminality. Article 30 deals with the mental element. Article 30, paragraph 1, except in cases where it is stipulated otherwise, only in the case of intentional and intentional commission of serious elements, criminal liability and criminal liability are within the jurisdiction of the court.

According to Article 30(2), a person intends if:

in terms of conduct, person means to engage in action;
in relation to a consequence, the person intends to cause the result or is aware that it will occur in the ordinary course of events.

Article 30(3) states that for the purposes of this Article “knowledge” means awareness of the existence of a circumstance or the likelihood that a result will occur in the normal course of events. The terms “know” and “knowingly” must be interpreted in this way

Main Principle Used while Criminal Proceeding.

The principle of double punishment – ne bis in idem

The idea of double punishment or ne bis in idem is another central principle of international criminal law. This prevents someone from being tried twice for the same crime and stems from concerns for the justice of defendants and a desire for thorough investigations and prosecutions. This principle is explicitly reflected in the statutes of international courts and tribunals.

Ne bis in idem, a Latin principle expressing the idea that “no one should be tried or punished for the same offense more than once”. It ensures justice for defendants by assuring them that the judgment will be final and protects them from arbitrary or malicious prosecution both nationally and internationally. In addition, this policy aims to ensure that investigations and prosecutions are initiated and carried out with care. It is worth noting that the worldwide application of the ne bis in idem principle depends on how it is written in the relevant statutes of international tribunals.

The principle of state sovereignty in the case of double jeopardy

This idea of double jeopardy only applies to courts within the same legal system and does not apply uniformly across states. For example, a court in country “A” cannot try a defendant for an offense that has already been adjudicated by another court in country “A”, but may be able to try a defendant for the same offense that has already been adjudicated by a court in country “B”. This is due to the principle of state sovereignty, which states that the courts of one state cannot bind the courts of another state. However, each state has its own view of how to deal with international law, and the principles in cross-border applications are ambiguous and not recognized as a general norm of international law.

At the international level, courts have taken different approaches that have an impact on domestic prosecutions.

The ICC’s jurisdiction is secondary, not primary. In particular, an individual may be tried under domestic law for crimes committed outside the jurisdiction of the ICC for the same conduct that led to the ICC conviction. If the domestic proceedings were unfair or essentially a sham trial to avoid the jurisdiction of the ICC, the ICC could try the person for the conduct that was the subject of the proceedings.

Principle of passive personality (acts committed against nationals of the forum)

Under this principle, states claim jurisdiction over crimes committed outside their territory, not necessarily by their citizens, if the victim is a national. It is a controversial principle that claims jurisdiction because it is based on the nationality of the victim rather than attachment to the territory or the offender. It is mentioned in a number of anti-terror treaties. The principle of passive personality is based on the idea that a state has a duty to protect its citizens from harm, even when they are outside its territory. Therefore, if a citizen becomes a victim of a crime abroad, the government can exercise jurisdiction over the perpetrator in order to protect that citizen and maintain the rule of law.

The use of the principle of passive personality is subject to certain limitations and conditions. For example, a crime should be recognized as a crime according to the law of the country of residence, and the exercise of jurisdiction should not affect the sovereignty of the country where the crime was committed. Furthermore, this principle is usually only applied to serious crimes such as murder, kidnapping and certain types of terrorism.

Principle of active personality or nationality (act committed by persons with the nationality of the forum state)

Under this principle, nationals continue to maintain a connection with their state wherever they are. They are entitled to state protection and also continue to be subject to certain laws of the state of which they are nationals. States may claim jurisdiction over their nationals for violations of such national laws by which the nationals are bound, even if committed abroad, by reference to their national system. The principle of positive character or nationality is based on the idea that governments have a special interest in the behavior of their citizens and a duty to protect them from harm. Therefore, if a citizen commits a crime abroad, the government can exercise jurisdiction over that person in order to protect that citizen and maintain the rule of law.

Certain limitations and conditions apply to the application of the active personality or nationality doctrine. For example, a crime should be recognized as a crime according to the law of the country of residence, and the exercise of jurisdiction should not affect the sovereignty of the country where the crime was committed. Furthermore, this principle generally applies only to serious crimes such as terrorism, war crimes, and certain types of drug trafficking.

The principle of protection (effective actions on national security)

This principle states that states can claim jurisdiction over crimes committed by foreigners outside their territory if the act threatens the security and territorial integrity of the state.

While these principles have varying degrees of acceptance in state practice and opinion, they all require some kind of connection between the act committed and the state asserting jurisdiction. There is no such requirement for universal jurisdiction, which is another reason for asserting extraterritorial jurisdiction.

Universal jurisdiction is said to apply to various crimes recognized or mandated by international public policy and certain international treaties that are prosecuted by all states.

Conclusion

International law is a system of norms that are necessary to regulate the behavior of nations or states toward each other in order to maintain international peace and prosperity. International law exists to keep the world in order and maintain peace, as well as to resolve numerous conflicts between nations/states and individuals and to protect fundamental rights. Domestic law can be influenced by international law, and international law can become part of national law. The role of international criminal law contains a number of general principles that form the basis and conditions for holding individuals criminally responsible for crimes under international law such as genocide, war crimes, crimes against humanity, crimes of aggression and other crimes against the peace and security of mankind. However, there are still a number of shortcomings, such as international terrorism, religion, the environment, and new patterns of war and peace, which cause international relations to deteriorate, so they need to be properly implemented.

References:-