Overall, these developments took us further away from, not closer to, an international criminal court. Certainly, it is not too much to say that the development of international criminal law from the 1950s until the early 1990s was a development away from international to national jurisdiction. The unique idea of generalizing Nuremberg faded quickly. Before 1998, there were only two references in treaties to an international criminal court to be recognized in Article VI of the Genocide Convention of 1948, repeated in Article V of the much less conventional Apartheid Convention of 1973.
Instead of international jurisdiction, the repression treaties worked on the basis of national courts exercising extended (Judgment of 14 February 2002,) jurisdiction, and they applied without chauvinism to the concurrent or more widespread jurisdiction of national courts over locally defined crimes. In terms of international process, the repression treaties focused on inter-state co-operation and comprehensive national jurisdiction. Therefore the international instruments efficiently provided for the extension of national process and jurisdiction.
There was no global criminal process as such. When the international criminal court idea took off again in the 1990s, it was against the tendency of development of the previous forty years (D. McClean, 2002). Moreover, as these international treaties focused on national courts and conferred extra, non-exclusive jurisdiction, they did not need to focus very obviously on any threshold for jurisdiction in terms of the importance or systematic character of the crimes covered. Individual acts covered by the containment treaties could be comparatively routine or minor (e. g.
most forms of retail drug trafficking), or at least they could be not very diverse in quality from serious national crimes (e. g. local acts of terrorism). Jurisdiction over them might be extended; however the acts themselves, considered in isolation, were nothing out of the ordinary. By contrast, an international criminal court could not perhaps be given authority over runoff-the-mill drug trafficking cases or it would risk being swamped. Clearly, a high threshold for ICC jurisdiction was requisite yet that threshold was not articulated in the suppression treaties, which made up the bulk of international criminal law.
Arguably, it is completely appropriate for an international tribunal such as the International Court of Justice to exercise jurisdiction over global crimes. However, the more problematic issue has to do with the planned jurisdiction of the ICC over state crimes. An immediate clarification is in order. It has been stressed all through that the ICC should only exercise jurisdiction over a state crime while the offender of state law has fled the borders of that state.
Therefore a local affair–namely, the infringement of a state's criminal laws becomes an international issue and is a matter of international concern because the fugitive has taken refuge in another state. The attempts of the affronted state to obtain the escaped fugitive might threaten world peace and security. Hence, the declaration of jurisdiction by the ICC is appropriate while the crime in question is an international crime or a state crime that is convoyed with the flight of a renegade from the offended state.
How is the world to perform this recommendation? The only effective way would seem to be through a bilateral treaty signed by the world community of states–a treaty that would succeed all existing bilateral and multilateral treaties. The new treaty itself would have to grant to the International Court of Justice jurisdiction over the arbitration of international crimes and state transnational crimes, as well as restricted authority over requests for international expulsion relating to these crimes.
The treaty would also have to distinguish that the Court has enforced jurisdiction over these cases; that states do not have simultaneous authority over these cases; and that both states and individuals can be concerned in the proceedings, both as plaintiffs and as defendants. The best way to achieve this change would be to amend the Statute of the International Court of Justice; this would need a revision of the U. N. Charter.
As every proposal to inject the rule of law into relations among states has always been opposed by the superpowers of the day, which prefer to settle disputes through force and coercion. Hence, the modern disintegration of the superpowers bodes well for the application of the rule of law to worldwide affairs.
A. Cassese, 1989. Terrorism, Politics and Law: The Achille Lauro Affair, Polity Press, Cambridge. Bassiouni M. Cherif. 1983. International Extradition. New York: Oceana Publications. D. McClean, 2002. International Co-operation in Civil and Criminal Matters (Oxford University Press, Oxford.