It has been recognized that the sources of international criminal law are the same as the sources of international law which is embodied in Article 38 of the Statute of International Court of Justice. Under the said provision, International Law is derived from the “international conventions, whether general or particular, establishing rules expressly recognized by the contesting states”. Another source for the international criminal law is the international customs that are generally practiced and accepted as law.
It is also derived from the principles generally recognized by civilized nations. Moreover, international law is also derived from judicial decisions and the teachings of the most highly qualified publicists of the various nations subject to the provision of Article 59 of the statute. Such source has been considered as a subsidiary means for the determination of rules of law. 2. What are the limitations of universal jurisdiction in bringing to justice perpetrators of international crimes? Generally, international crimes such as genocide are tried, heard, and decided in the international court.
However, there are limitations by which a perpetrator of international crime may be tried in national court. One of the common limitation is that universal jurisdiction only applies to grave breaches of the Geneva Conventions which means that lesser crimes and other war-related crime cannot be brought before the international court. Another limitation is that the grave abuse should have been committed “during an international armed conflict. ” Hence, the national courts have jurisdiction over lesser war-related crimes and grave abuses committed during peaceful period.
Describe the elements of the crimes of trafficking in persons and people smuggling. Trafficking in person has been defined as “all acts involved in the coercive transnational recruitment and/or transportation of a person for forced exploitation. ” From the definition, three essential elements can be derived. The first element of the crime of trafficking in person is that there should be recruitment or transfer of persons. The second element is that the threats, force, coercion, fraud, deception, or abuse of power or of position of vulnerability has been used. Finally, the purpose of the act is exploitation.
People smuggling, on the other hand, is defined as “the procurement in order to obtain, directly or indirectly a financial or other material benefit, of the illegal entry of a person into a state Party of which the person is not a national or a permanent resident. ” Notably, the person being smuggled is generally cooperative or has consented to the act. The elements of the crime include the elements of migration and trafficking. Coercion is not an essential element. However, there is a financial consideration. Furthermore, the crime is committed only if the person smuggled crosses an international border.