It is tempting to conclude that the current international guidelines as laid out by the UN and other international bodies are simply not reliable, as they lack the authority to enforce any of its directives. According to Rubin (2001), this illustrates the complete lack of an international governing body and the inability of the UN and various international conventions to act as one: “A government so weak that it cannot run its own trials is unlikely to be strong enough to arrest and extradite or otherwise transfer its former leaders to an international tribunal” (p. 155).
Short of a world government that can enforce its laws, the notion of a transnational criminal court managing universal law appropriate to universal crimes remains unseen. But the attempts to construct a superstructure of legal supremacy on the accessible system, using the tools of optimistic international law, have attained a degree of apparent success. The International Criminal Court was founded in July, 2002, but has yet to get the most powerful nations on the earth to join.
Additionally, the only instruments of justice the international community has managed to agree upon up regards the crime of terrorism, of which a number of UN conventions and protocols have been established. These often describe international crimes such as hijacking of airplanes, hostage taking etc. , which are often used in the context of terrorism, but may not qualify as terrorist acts. The failure of the international community to create a strong international criminal court speaks of the subjectivity of international justice and the weakness of international organizations against the sovereignty of nations.
As an opponent of the ICC, countries like the US, China, and Russia have been able to take criminal matters into their own hands, brutally punishing who they see fit and avoiding persecution for their own crimes such as torture and human rights abuses. Unless the largest and most powerful countries endorse an international criminal court system, there is little hope that one can be effective. The common perception of criminal law is that sovereign countries are the best dictators of their own court systems, but with regard to the criminal law, that perception is often more complicated and simply not true.
There are at least two primary inconsistencies between the international legal order and a hypothesized distinctive public legal order. First, as to legitimate distributions of authority, there is no worldwide law-maker, enforcer, or arbitrator in the international legal order. International criminal law remains convoluted and international bodies like the UN can pass initiatives and directives, but have little governing power over sovereign nations.
Because of this, it leaves many questions regarding which laws supersede others, and whether criminals that commit crimes in one country are subject to the just of that particular country, their own, or even another country in which they seek refuge. As pointed out by Hammond (1990), according to Gulick’s foundational work, “a workman subject to orders from several superiors will be confused, inefficient, and irresponsible; a workman subject to orders from but one superior may be methodical, efficient, and responsible” (p. 340).
While Gulick also admitted that rigid adherence to one command is absurd, as can be seen with most things that are rigid and unable to be revised, attempts to use the method of the positive law the law of agreement to create the entire arrangement of authority essential to create a feasible criminal law system cannot achieve something unless states are willing to give way some of their most treasured attributes of sovereignty. Impoverished countries around the world, while struggling to maintain sovereignty in the face of international pressure, are often the countries most in need of international regulations and courts.
In Afghanistan, where lawlessness and government inaction allowed Al Qaeda to become a serious terrorist threat, the example of countries with little economic means as breeding grounds for international crime becomes all too apparent. While the rest of the world progresses, humans gain more rights and security, in marginalized countries like Afghanistan, poverty is the true dictator of many of the problems and must be taken into account by any possible international court.
Author Amaro Tomas (2005) attempted to show how poverty is the true reason that many countries are unable to ensure justice, as well as why impoverished citizens need the intervention of an international judicial body to protect their basic rights. Tomas’ essay, “Reforms that benefit poor people – practical solutions and dilemmas of rights-based approaches to legal and justice reform,” offers readers just what the title suggests and provides a thorough examination of many programs and developments that have occurred over the last fifty years as the international community sought to address poverty through judicial reform.