LOS DELITOS.

As noted above, the creation of the ICC is the next and perhaps the final outcome of the Nuremberg and Tokyo international military tribunals, two ad hoc international tribunals for former Yugoslavia and Rwanda and the current fledgling tribunals for Sierra Leone, Cambodia and East Timor for the effective enforcement of international humanitarian law.504 The establishment of those tribunals was meant to provide a more effective means of enforcing international humanitarian law after the previous mechanisms seemed to fail.

The first means available for legally enforcing international humanitarianism was the traditional and rather controversial method of reprisals, whereby a soldier used an illegal means of warfare in response to violations of the laws of war by his enemy. The aim of this tactic is to make the enemy stop behaving illegally and to ‘punish’ him in order to deter him from committing further breaches. The second means was generally known as Protecting Power, a mechanism agreed upon by the parties to a conflict, to secure the supervision and implementation by the armed forces of their international humanitarian obligations. The third means was the existence of the Fact Finding Commission. The Commission was set up by the Secretary-General at the request of the Security Council in accordance with Resolution 780 (1992) to investigate violations of international humanitarian law in the former Yugoslavia. Based on the subsequent findings of this Commission, the Security Council decided to establish the International Criminal Tribunal for the Former Yugoslavia.505

503

Rules on the trial process and the enforcement of the rulings are summed up in part 6 Articles 62 – 85 and part 10 Articles 103 - 111 of the Statute.

504

Bernhard Graefrath, “Universal Criminal Jurisdiction and an International Criminal Court” in European Journal of International Law, 1990,Vol. 1, No. 1, http://www.ejil.org/pdfs/1/1/1146.pdf, accessed 6 Feb 2013

505

Daphna Shraga & Ralph Zacklin, The International Criminal Tribunal for the Former Yugoslavia, European Journal of International Law: 5 EJIL( 1994) 360-380 <http://www.ejil.org/pdfs/5/1/1248.pdf> accessed 9 Jan 2013.

While the three previous methods concentrated on the States’ duty to uphold their obligations under international humanitarian law, the ICC focuses its jurisdiction on individual responsibility. It should be acknowledged that, in one way, the creation of the ICC does represent a step forward in the effort to promote the observance of humanitarian law internationally. Yet, on the other hand, the mechanism is flawed as far as the effective enforcement of international humanitarian law is concerned, because the implementation of the prosecution and punishment of individuals ultimately hinges on, and depends on, the goodwill of States.506

Unlike the procedures which deal with individual communications under various treaties in which the Committees do not make legally binding decisions, the ICC does hand down judgments and has legal binding force on the parties concerned. This is as expected because the ICC is a judicial institution operating as a criminal court on the basis of general criminal law principles at international level. Thus, it does not work in the area of international human rights.

Petitions or complaints alleging violations of individual human rights are dealt with by the Committees established for that specific purpose, but they are not vested with the same degree of powers or competence as the ICC. In other words, some privileges enjoyed by the ICC, such as the power to hand down judgments, are not granted to the Committees. This makes the work of the Committees ineffective and in many cases futile for law enforcement purposes.

Indeed, the effective implementation of the decisions made by the ICC ultimately depends on the goodwill of States507. Still, from this point onward, it is no longer a question of the court’s judicial competence, but rather a question of sanction and of moral values held by individual

506

Ibid at 372

507

For a discussion on the of the ICC effectiveness see for example; David Tolbert Stocktaking: Peace and Justice, (The Rome Statute Review Conference) Jun 2010 < http://ictj.org/publication/stocktaking-peace-and- justice-rome-statute-review-conference> accessed 16 Jan 2013. Neha Jain, A Separate Law for Peacekeepers: The Clash between the Security Council and the International Criminal Court The European Journal of International Law Vol. 16 no.2 EJIL 2005; EU Guiding Principles Concerning Agreements Between a State Party to the Rome Statute of the International Criminal Court and the United States Regarding the Conditions to Surrender of Persons to the Court < www.europa.int/comm/external_relations/human_rights/gac.htm>J. Crawford, P. Sands, and R. Wilde, Joint Opinion in the Matter of the Statute of the International Criminal Court and in the Matter of Bilateral Agreements Sought by the United States under Article 98(2) of the Statute (2003), at 22–23. I. Bantekas and S. Nash, International Criminal Law 4th ed Hart Publishing: London, 2010; M. Boot, Genocide, Crimes Against Humanity, War Crimes: Nullum Crimen Sine Lege and the Subject Matter Jurisdiction of the International Criminal Court (2002), at 554; R. Kerr, The International Criminal Tribunal for the Former Yugoslavia: An Exercise in Law, Politics, and Diplomacy (2004) 80–81.

States. The issue here is in which skilful way could an effective sanction be formulated so that a State would have no other choice but to implement it within its national jurisdiction, because it felt that this sanction served its own interests as well as those of the international community at large, even though it might have to observe it under constraint.508 For no State would ‘feel’ happy to bow to international pressure and besides, there could be some financial or political consequences occurring. As the United Nations Secretary-General’s seminal Rule of Law report says, “Peace and justice, if properly pursued, promote and sustain one another. The question can never be whether to pursue justice, but rather when and how509.”

4 International Practices Similar to Judicial Review

Article 2(3) of the United Nations Charter states that all Member States;

shall settle their international disputes by peaceful means in such a manner that international peace and security and justice are not endangered.

This article means that there is no general rule requiring states to settle their grievances, but that if they decide to do so, this must be done in a peaceful manner. The absence of a general obligation to settle disputes is reflected by the fact that the jurisdiction of the International Court of Justice (ICJ) is not compulsory. Thus, a state cannot be compelled to submit a dispute with another state to a third party such as the ICJ for settlement unless it has agreed upon it.510

Under international law, many procedures to settle disputes have been implemented; although, from a legal point of view, these are relatively obsolete. As a matter of fact, such procedures for the supervision and pacific settlement of disputes have been developed through old-fashioned processes in which the acts and omissions of the States could be reviewed for their conformity with international legal norms. Most of these procedures have

508

More on the theory of sanction and punishment, see, Igor Primoratz (1989). Justifying Legal Punishment, New Jersey, London: Humanities International Press, particularly pp. 1-31. On the effectiveness of the United Nations sanctions, see, Willem J.M. van Genugten and Gerard A. de Groot (eds.) (1999), United Nations Sanctions, Effectiveness and Effects especially in the Field of Human Rights - A Multi- disciplinary Approach, Antwerpen: Intersentia.

509

UN Doc. S/2004/616, para.21,The Rule of Law and Transitional Justice in Conflict and Post-conflict Societies, Report of the Secretary-General, Aug. 24, 2004,

510

The only exception to this rule is the obligation of states under Art. 33 of the Charter, which requires a state to submit disputes which are likely to endanger international peace and security to third party for a peaceful settlement.

a non-judicial character.511 Nevertheless, it is perhaps valuable to consider some of these procedures before possibly coming to the conclusion that an international judicial review is needed.

The said procedures vary greatly among themselves and can be any of the following:

• consultation between States parties;

• settlement of disputes through mediation and good offices;

• inquiry and conciliation (under the direction of one or more other States, a commission or an organ of an international organisation);

• specific settlement of disputes of non-judicial supervision;

• pacific settlement of disputes within the framework of international organisations or regional machinery.

In general, most of these procedures concern the settlement of disputes of a specific nature; such as in diplomacy, problems relating to the international economy and trade cooperation, and other related matters such as disputes about territorial borders.512