It should provide permanent mechanism for prosecuting those responsible for most horrible International crimes. It will be directed against individuals when a national shield of impunity is erected to protect perpetrators, such international agency will pierce it , identify the individual responsible and book them personally to account . It will be a permanent court which is not set up ex post facto and not confined to any geographical or political selective with the world wide jurisdiction.
Such Institution is needed to address the unimaginable atrocities committed by a head of a nation on its subject when failure of national systems and the international community to prevent and to prosecute it. There is a general fear that loss of national sovereignty for the countries involved in case of international justice agency can be removed as the national court of such country retains the primary responsibility for combating heinous crime.
The International court does not have the power to intervene in such cases with the genuine prosecutions by the national of court of such countries or by another state exercising jurisdiction based on the victims nationality or universal jurisdiction due to nature of such crimes as in the case of prosecution of General Pinochet in Europe . An international court jurisdiction shall apply only when no national system is willing or able to act .
Thus the existence of a cohesive system for holding individuals to account , hurls a clear message to tyrants that they can no longer perpetrate genocide ,crimes against humanity and war crimes without fear of prosecution . The International court can exercise its jurisdiction when a national court is unable or unwilling to genuinely exercise its authority. The first priority should always go to national court and when a State’s court system collapses and ceases to function or State’s reluctant to prosecute someone in a position of great power and authority , the International Court sets to assign the responsibility for awarding justice .
The extradition of Pinochet, the prosecution in Argentina members of the military junta of the dictatorship era, the conviction in Guatemala of those responsible for the crimes against humanity committed during 1980 are the few examples of mounting recognition of the need for International justice . It is to be remembered that establishment of international justice will forward a real contribution to narrowing the impunity gap. Any International Judiciary is dependent on the cooperation and assistance of national governments it is to perform even its most basic functions.
Crimes will invariably be a political or ethnic ,conflict , the instigators will usually lack the cultural , language , contextual and street knowledge which is a pre requisite for a national police investigation . International courts can not protect its witness after they have testified because it has no policing force and protection can only be given local authorities . Hence vulnerability of these witness to risk is more and inability of international agency to provide security where the only evidence is the testimony of victims and eyewitnesses.
Any International agency needs local government help to conduct investigations and it should be made available and unconditional. If it orders an unwilling government to arrest an accused or disclose its documents and records, there must be an agreed range of sanctions which other government are able to willing to impose to compel compliance and it needs national cooperation for its successful functions. US main concern is that the ICC does not guarantee fool proof protection to its GI’s and Commanders stationed various parts of the World . U.
S is also apprehensive of ICC’s power to decide for itself what disproportionate use of force is and ICC’s independent prosecutors are clothed with too much power in their hands . Further ICC treaty protects all bilateral agreements except U. S. troops stationed abroad from the process of local criminal justice systems. Further American Service Members Protection Act (ASPA) prohibits any U. S military assistance to states that have signed the ICC treaty except with the approval of U. S President.
The Five permanent members of security council of U. N can stall or reschedule the ICC powers to act to safeguard their own benefits . The degree of the judicial security and the safety of the members of the judiciary are some of the concerns to be addressed as countries such as Spain, Italy and Columbia have had some problems with regard to judicial security. The new wars like the Invasion of Iraq are wrestled in the name of ‘save humanity’, ‘good versus evil ‘by the hegemonial so called super power and compelling the allies and the U. N to dance to its tunes.