International criminal law by the ILC

Now it is often said or assumed that we are past all this, that international law has moved from being an inter-state law to being something more. Substantively that is no doubt true, at least to a certain extent. But looking at the question from the viewpoint of institutions or processes, the position is much more difficult. Certainly, some would say the chasm still exists: 'you can't get there from here', as the Punch cartoon has the country yokel telling the city motorist who stops to ask the way to some purpose.

But again, the optimist says, things have changed: somewhat that can be described as a real international process has developed, not just an inter-state law concerning people, but a law applicable for and to people. It is pertinent to recall the famous declaration of the Nuremberg Tribunal: Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced .

The Statute of the ICC has recognized an excellent framework for adjudication and, more specifically, the selection of members of the Court. Though some analysts have suggested that the members of the Court must be selected for life instead of a nine-year period, the current term is probably preferable. The nine-year term is a long enough duration for judges to become expert as well as somewhat detached from their respective states. It as well ensures, however, that a member of the Court who performs randomly may be eradicated after his appointment.

If, however, the International Court of Justice becomes drawn in the adjudication of international and state global crimes, it may be that–where the right to a adjudicators trial for the crime in question is certain by state or international law-new measures will have to be accepted to allow for the selection of an "international jury," which would make accurate findings as to, for instance, the guilt or innocence of a criminal defendant.

The jury in these circumstances must not be composed of nationals of the state that filed the complaint, as one of the primary objectives in giving jurisdiction over state crimes to the ICC is to make certain that the defendant receives a fair trial–something that can not occur if a defendant is tried by a jury or judge in the tetchy state. The international jury could be chosen in a manner similar to the selection of ICJ judges–namely, throughout national groups associated with the Permanent Court of Arbitration, or by national groups chosen for this purpose (Article 4).

However, these national groups would select jurors from a much broader cross-section of their states, excluding elected officials, government employees, government administrators, lawyers, and judges. Briefly, the appointees to the jury would not require having a background in law, and should be, as much as possible, private individuals not allied with governments within their states or their legal systems. Two requirements must be that they have a minimum level of education (to make sure literacy) and be of good moral character.

There was some element of circularity in the word 'only', since global law is enforced and applied daily against theoretical entities. But of course it is not forced by criminal process. The idea that states as such can be subject to criminal process or punishment has expanded very little acceptance, and it was intentionally rejected by the ILC in its Articles on Responsibility of States for Internationally Wrongful Acts (2001). What the Nuremberg Tribunal seems to have been saying is that the only way of imposing international criminal law is by punishing the individuals who entrust those crimes.

But the question it faced was whether there was any international criminal law, properly supposed, and that question was not answered by declaring that international criminal law can simply be enforced against individuals. When the optimist is pushed to excuse this optimism about the existence of a real international process competent of bridging the chasm between the inter-state and the human dimensions, two examples are typically given.