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Introductions
The concept International Criminal Law (ICL) refers to the set of rules developed to deal with crimes that are considered particularly heinous, massive in scope or international in nature. In short, the International Criminal Code (ICL) is the body of public international law that establishes individual criminal responsibility for international crimes, such as war crimes, crimes against humanity, genocide and aggression. On the hand, Public International law is the body of rules that are legally binding and enforceable on States and international organizations in their interactions with other States, international organizations, individuals and other entities. This includes a range of activities, including diplomatic relations, warfare, trade, human rights and the sharing of ocean resources.
While it is an established fact that ICL is part of PIL, ICL exhibits signs of departure from PIL. This can be seen by;
While international law typically concerns inter-state relations, international criminal law concerns individuals
As stated earlier, the rights and responsibilities of states are typically governed by international law, while criminal law is paradigmatically concerned with prohibitions addressed to individuals, violations of which are subject to criminal punishment by the state. Crimes that can be committed by individuals include genocide and crime against humanity. The former according to the Convention on the Prevention and Punishment of the Crime of Genocide, genocide means any of the following actions committed with the purpose of destroying, in whole or in part, a national, cultural, racial or religious community as such: the killing of members of the group; the causing of significant physical or mental damage to members of the group; the deliberate calculation of the group's living conditions. The latter, crime against humanity means any of the following acts committed as part of a widespread or systematic assault directed against any civilian population with knowledge of the assault: murder; extermination; enslavement; deportation or forced population transfer; imprisonment or other serious deprivation of physical liberty, in violation, among other things, of fundamental rules of international law.
The emergence of individual criminal responsibility explicitly under international law reflects the combination of elements of traditional international law with more modern approaches to human rights and humanitarian law, and includes both domestic and international enforcement considerations. The State's liability under international law is a matter for a separate branch of international law and is not dependent on the individual's legal liability. Where an agent of a State is convicted of an international crime, the act at issue may be attributable to the State, depending on the circumstances, in which case that State may also be internationally responsible.
The subject of State responsibility for international crimes was dealt directly with in the case of the Bosnian Genocide, where the International Court of Justice, having determined that the genocide had occurred in Srebrenica, decided that Serbia was not responsible for the perpetrators of that crime. Controversially, it rejected the standard of attributability of conduct to a State used by the ICTY, claiming that international criminal law and general international law may not always be the same as the relevant test. That being said, in view of the State's relationship with the perpetrators, the ICJ held that, under Article I of the Genocide Convention, Serbia was separately liable for its own failure to prevent and punish the crime.
ICL is neither uniform nor universal thus not binding on all states as compared to PIL
Criminal responsibility can be based only on an existing ban on behavior that is understood to have criminal consequences, a fundamental principle of criminal law. That is why the nullum crime sine lege principle has been implemented. There are two aspects to this principle: non-retroactivity and clarity of the law, both of which seek to ensure that the law is made public in a way that enables people to know whether their planned action is acceptable or not. Article 15 of the International Covenant on Civil and Political Rights (ICCPR) states that
Nobody shall be held guilty, under national or international law, of any act or omission that did not constitute a criminal offence at the time when it was committed.... Nothing in this article shall prejudice any person's trial for any act or omission that was criminal in accordance with the general principles of law recognized by the community of nations at the time it was committed.
Comments that customary international law is not sufficient to establish criminal liability are based on a strict construction of the principle of nullum crime principle, which is not the principle applicable in international law, even if it is applicable to certain domestic legal orders. The ICTY's general practice has been to adopt a fairly relaxed standard of the principle of nullum crime. The Trial Chamber asserted in the Vasiljevic case that;
From the point of view of the principle of nullum crimen sine lege, it would be entirely unacceptable for the Trial Chamber to convict an accused person on the basis of a prohibition which is either insufficiently precise to determine the conduct and to distinguish the crime, taking into account the specificity of customary international law and allowing for the gradual clarification of the rules of criminal law.
The Chamber refused to convict the defendant of that charge because of their view that customary law did not provide a sufficiently clear definition of the offence of 'violence to life and person'. The principle of nullum crime played an important role in drafting the Statute of the ICC. A strong reaffirmation of the nullum crime principle is contained in the Statute itself. Article 22 of the Rome Statute provides that;,
The first sentence of the second paragraph was intended, rightly or wrongly, to prevent the ICC from engaging in expansions of criminal liability not mandated by the States Parties.
Penal sanctions for violation of those prohibition imposed by individual states ( Nulla poena sine lege)
Penalties for international crimes may include the death penalty under customary law, even though many States have undertaken international obligations not to impose such a penalty or may not allow such a penalty to be imposed in their domestic law. In the course of drawing up the ICTY Statute, the Tribunal had to 'have recourse to the general practice concerning prison sentences in the courts of the former Yugoslavia. The fact that both States had provided for the death penalty at the time of the offences, but the Tribunal could not impose that sentence, made it difficult to apply that sentence. Article 23 of the Rome Statute also contains an article entitled 'nulla poena sine lege': This states, uncontroversially:' only in accordance with this Statute can a person convicted by the Court be punished.
Conclusion
International criminal law, like international human rights obligations, is relevant to the study and protection of international human rights because it is generally aimed at punishing acts that affect fundamental human rights, such as life, liberty, and security. The codification of international criminal law makes sense because it aims to punish actions that may have been carried out as part of a broader State policy. To that effect, it is safe to conclude that the two international laws complement each other.
