The recent development of international criminal law with special reference to the proposal of the ILC for an international criminal court

Abstract

This dissertation considers the evolution of international criminal law, both of the responsibility of the individual and of the State itself, in an international legal system which is not well developed. International society is horizontal in nature and all states are considered equal. There is no higher authority to enact legislation to which all states must conform and no form of international criminal tribunal to resolve those cases which arise. In the absence of the appropriate legal machinery, international criminal law is dependent upon enabling provisions in municipal law and national criminal courts. But the reliance of the international legal system on national laws and courts presents certain problems. Municipal law is restricted in its application by notions of state jurisdiction, the extradition of fugitives and by the limitations of inter-state cooperation. Therefore, the implementation and enforcement of international criminal law is far from simple. Recent events surrounding the aerial incident over Lockerbie suggest that the United Nations Security Council is increasingly willing to enforce international criminal law directly. Economic sanctions have been imposed against the state of Libya for its refusal to surrender the individuals alleged to have committed the bombing. In another development, the Security Council has established an ad hoc tribunal to hear criminal charges against individuals accused of serious violations of international humanitarian law arising out of events in the former Republic of Yugoslavia. However, such action by the Security Council is only warranted where the circumstances can be considered to constitute a threat to international peace and security. Thus, attention has shifted to recent international efforts to create a permanent international criminal court. The International Law Commission has established a working group to draw up a statute for a permanent international criminal court and its initial proposals have been favourably received by states. While none of these developments are final or decisive, they represent an ongoing process designed to secure more effective implementation of international criminal law.