International Criminal Law Issues - Assignment Example

According to Danner and Martinez (2005), international criminal law in the modern context primarily focuses on holding accused individuals accountable for vicious crimes committed against masses. The authors are emphatic that these crimes often entail involvement by many people, which makes it critical to consider many aspects, to ensure that the most culpable bears responsibility. It is for this reason that international criminal courts make use of liability doctrines such as the joint criminal enterprise (JCE) and command responsibility, analyzed in detail in Danner and Martinez’s article, to aid in allotment of guilt. There is a wide array of concepts to grasp, in order to comprehend the authors’ perspective on international law and its workings. Key among these is legitimacy, which is essentially the legality or lawfulness of an undertaking. As the scholars stipulate, legitimacy is an absolute necessity not just to achieve criminal law goals, but also in upholding human rights, as well as, transitional justice objectives. In this case, human rights conform to conventional legal systems hence are constitutional rights that justifiably belong to each individual, civilians and accused alike. Transitional justice, on the other hand, is a concept of justice linked to durations of political transformation. Such periods require legal measures to deal with crimes of oppressive past regimes. This form of justice emerged in the late 20th century, in a bid to cater for political changes in Latin America nations recovering from dictatorial military administrations, in European countries ending communist systems, and in South Africa evolution from apartheid to racially inclusive democracy.

Another concept pertinent to this analysis is liability, which alludes to legal responsibility for an action. As denoted by Danner and Martinez (2005), understanding theories on liability lays the proper foundation for examining moral objectives of international criminal legislation. Comprehending liability brings about the other crucial aspect of definitions of crimes. The latter is a collection of factors that constitute illegal or crime elements. In international criminal law, as delineated by the Rome Statute, International Criminal Tribunal for the former Yugoslavia (ICTY) and International Court for Rwanda (ICTR), some acts done under specified conditions are crimes against humanity. These acts include killing, massacre, enslavement, unwarranted deportation, detention, rape, and torment, as well as, religious, political, and racial persecution, among other inhumane deeds. Prior to charging the accused with these crimes, the international law tribunals takes into account mental and conduct elements, to determine justifiability of proceeding. The mental element for crimes against humanity comprises of two parts. First, it is important to confirm that the accused understood the setting in which their actions occurred in order to trigger widespread or methodical attack. Secondly, relevant authorities should determine the mental element necessary for the alleged crime. Concerning the conduct element, it is necessary to establish the context in which the alleged act occurred, to associate it with a violent international conflict. This goes to determine whether the alleged criminal was cognizant of factual conditions that recognized occurrence of the conflict. Another phrase crucial to this evaluation is domestic criminal law, which is a criminal law system specific to a country and one that focuses on individual offenses as a necessary precondition to impose criminal punishment using various procedural and practical doctrines. Contrastingly, international criminal law is a globally oriented system of criminal law that mimics domestic law in terms of individual as opposed to state culpability. Prior to delivering justice, it is important to determine standards of evidence hence terms such as ‘beyond a reasonable doubt’ and ‘preponderance of evidence’. The former requires proof presented by the prosecution to show that there could be no other logical account, other than that the accused carried out the criminal act. This is the standard requirement in criminal prosecution, unlike ‘preponderance of evidence’, which is a lower evidence often characteristic of civil law.

In addition to understanding topic-specific terms, comprehensive understanding of Danner and Martinez’s (2005) international law analysis requires recognition of various international law institutions and specific rules. Institutions include the International Military Tribunal (IMT), International Criminal Court (ICC), and ad hoc UN courts. The IMT is a court setup in cooperation by allied governments that emerged victorious in World War II. The ICC is an international tribunal and intergovernmental establishment that, wields the authority to prosecute individuals from signatory nations for war crimes, genocide, and other crimes perpetrated against humanity. Finally, Ad hoc UN tribunals are courts created by the UN Security Council to deal with core global crimes, namely war crimes, crimes against humanity, and genocide. All these tribunals apply the rule of lenity, which considers deliberate offenses as the only allowable basis for punitive measures.

In domestic criminal law, fundamental principles that govern the criminal justice system include personal culpability, fair labeling and legality. These principles put emphasis on the notion that, only the individual accused of wrongdoing bears the blame in accordance with the law. In contrast, international human rights law focuses on harm suffered by the victim(s) and State responsibility. Therefore, while the primary goal of criminal justice favors the strict formulation of and adherence to statutes, the principal objective of international human rights legal instruments is to guarantee recognition and resolution of harms suffered by victims. The international human rights legislation also intends to promote progressive growth in respect for human freedom and dignity. In essence, human rights law seeks to counter impunity, in that, if a country fails to address incidents of human rights violations, it violates a ratified human rights treaty to which it is a signatory. The other difference between the two is in the scope within which each operates. Whereas domestic criminal law deals with crimes within a given country, international human rights law penalizes criminal acts that are noticeably atrocious and capable of causing harm in a large scale, as well as, crimes that are international in nature in that they entail actions carried out by countries or their representatives such as war crimes. The range of international law also covers crimes that surpass a single jurisdiction like drug trafficking and piracy.

There is undoubtedly some overlap in the goals of the normative structure of international criminal law and domestic criminal law. This, according to Danner and Martinez (2005) is apparent from the philosophical commitments that international law imports from domestic law. The scholars note that the most obvious of these factors is the focus on individual offense as a necessary condition prior to imposing criminal punishment. This provision is clearly just like most state law systems, which stipulate that imposition of punitive measures on the accused is unjust if he or she is not guilty. Danner and Martinez (2005) sum up by stating that majority of criminal law doctrines have their foundation in the concept of personal accountability. Also implicated in this overlap are the basic principles of fair trial protection for the accused and victim involvement rights in legislative proceedings.

Perhaps the most outstanding difference between transitional justice and international criminal law is in the timeline. Whereas transitional justice occurs in the period after a regime change to deal with crimes linked to the oppressive past administration, international criminal law is not restricted by time since it is not dependent on the presence or end of a transition. Further, international criminal justice relies extensively on structures and principles of criminal law, whereas transitional justice strikes more of a reconciliatory role given the extensive focus on the human rights model. This overdependence on interpretive techniques according to Danner and Martinez (2005) may threaten validity of international criminal law, by channeling more attention toward state responsibility instead of identifying actual crime perpetrators.

Danner and Martinez (2005) proceed to explore liability theories that make it possible to bring forth charges against individuals accused of international crimes. The first of these theories is direct responsibility. According to this theory, an individual becomes blameworthy if he or she planned, initiated, instructed, committed or aided in the organization or implementation of a criminal act. This liability theory, therefore, comprises of five types of liability, two key ones and three supporting. In either of these descriptions, the accused must have the intention to carry out the offense or have knowledge of the significant possibility that a crime would occur because of his actions. Command responsibility provides an alternative approach to determining liability, whereby an individual with the authority over others, whether a military or civilian leader, bears responsibility for offenses carried out by subordinate staff. This happens to be the case when such a leader does not prevent a crime or does not punish instigators once a crime occurs. Finally, under the joint criminal enterprise (JCE) liability theory, a person becomes accountable for all crimes done in line with a pre-existing common plan that entails execution of a criminal act defined in the respective international criminal law provision. This happens if the accused participates with co-conspirators in the plan.

I agree with Danner and Martinez’s argument that judges in international criminal law, particularly in the contemporary setting, need to strike proper balance among human rights, criminal law, and aspects of transitional justice. This is because even though international criminal law has evolved over the past several decades, in response to various conflicts such as those in Rwanda and Yugoslavia, there are still concerns about its legitimacy and practicality. For example, the ICC continues to suffer setbacks as various countries threaten to withdraw citing unfair proceedings and ambiguous procedures. In addition, the lack of autonomous responsibility and legal limitations due to occasional lack of cooperation by partisans, negate the impact of international criminal justice system (Danner & Martinez, 2005). Refinement of liability theories such as the JCE to narrow down the exact definitions of crimes may also go a long way toward reducing role ambiguity and sealing some of the loopholes in international criminal law that prevent it from being as efficient as desired.

Reference

Danner, A. & Martinez, J. (2005). Guilty Associations: Joint Criminal Enterprise, Command Responsibility, and the Development of International Criminal Law. California Law Review, 93(1), 75-170.