International Criminal Law: Examining the role of international tribunals and courts in

investigating and prosecuting international crimes

Abstract

International Criminal Law is a rapidly evolving field that seeks to hold individuals
accountable for the most serious crimes that threaten the international community, including
genocide, crimes against humanity, and war crimes. International tribunals and courts, such
as the International Criminal Court and ad hoc tribunals like the International Criminal
Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda, have
been established to investigate and prosecute these crimes.

This research seeks to examine the role of international tribunals and courts in investigating
and prosecuting international crimes. It explores the extent to which these institutions have
been successful in achieving their goals, including holding perpetrators accountable,
providing justice for victims, and contributing to the development of international criminal
law.

The research begins by analysing the legal framework that underpins international criminal
law and the establishment of international tribunals and courts. It then examines the
effectiveness of these institutions in investigating and prosecuting international crimes,
including their jurisdictional reach, their use of evidence, and the fairness of their procedures.

The research also explores the challenges that international tribunals and courts face,
including political interference, lack of cooperation from states, and issues related to the
enforcement of sentences. Finally, the research considers the future of international criminal
law, including the potential for the establishment of new international tribunals and courts
and the role of national courts in prosecuting international crimes.
I. INTRODUCTION

“International law is the expression of a common will of the civilised world, and that its
execution depends upon the cooperation of States.” - Charles Evans Hughes

International criminal law (“ICL”) is a branch of international law that deals with the
prosecution of individuals for international crimes. 1 These crimes are considered to be among
the most heinous, including genocide, war crimes, crimes against humanity, and aggression.
The prosecution of individuals for international crimes has a long history, dating back to the
Nuremberg Trials, which were held after World War II to prosecute individuals responsible
for Nazi war crimes.2 Since then, international criminal law has become an increasingly
important area of law, with the establishment of international courts and tribunals to
prosecute those who commit international crimes.3

The significant developments in international criminal law was the establishment of the
International Criminal Court (“ICC”) in 2002.4 The ICC is a permanent court that has
jurisdiction over the four core international crimes - genocide, war crimes, crimes against
humanity, and aggression - as well as other crimes under international law. The ICC has the
power to prosecute individuals for these crimes, regardless of their nationality or where the
crimes were committed. The ICC operates under the Rome Statute, which is a treaty that has
been ratified by 123 countries as of 2023.5

The establishment of the ad hoc International Criminal Tribunals for the former Yugoslavia
(“ICTY”) and for Rwanda (“ICTR”). The ICTY was established by the United Nations
Security Council (“UNSC”) in 19936 to prosecute individuals responsible for war crimes and
crimes against humanity committed during the conflicts in the former Yugoslavia. The ICTR
was established by the Security Council in 1994 to prosecute individuals responsible for
genocide and other international crimes committed during the 1994 genocide in Rwanda. 7
1
Schabas, W.A. (2011) “An introduction to the International Criminal Court,” Beijing Law Review, 8(1), p. 16.
2
The influence of the nuremberg trial on international criminal law - robert H jackson center (no date) The
Influence of the Nuremberg Trial on International Criminal Law - Robert H Jackson Center. Available at:
https://www.roberthjackson.org/speech-and-writing/the-influence-of-the-nuremberg-trial-on-international-
criminal-law/ (Accessed: February 15, 2023).
3
id.
4
The role of the International Criminal Court (no date) Council on Foreign Relations. Council on Foreign
Relations. Available at: https://www.cfr.org/backgrounder/role-international-criminal-court#:~:text=20victims
%20of%20atrocities. (Accessed: February 15, 2023).
5
The states parties to the rome statute, International Criminal Court. Available at: https://asp.icc-cpi.int/states-
parties (Accessed: February 15, 2023).
6
Powderly, J. (2010) “Judicial interpretation at the ad hoc tribunals: Method from chaos?,” Judicial Creativity
at the International Criminal Tribunals, pp. 17–44. Available at:
https://doi.org/10.1093/acprof:oso/9780199591466.003.0002.
7
id.
Both tribunals have since completed their work, with the last trials concluding in 2017 for the
ICTY and 2015 for the ICTR.8

In addition to these international tribunals, there have been national prosecutions of

individuals for international crimes.9 One notable example is the prosecution of former
Serbian leader Slobodan Milošević by the ICTY for the former Yugoslavia. Milošević was
indicted for war crimes and crimes against humanity, and was the first head of state to be
indicted by an international court. He died before his trial was completed.10

The scope of international criminal law has expanded over time, as new international crimes
have been recognized and prosecuted. For example, the crime of enforced disappearance was
recognized as an international crime in 2006, and has since been prosecuted by the ICC and
other international and national courts. The crime of aggression was also added to the
jurisdiction of the ICC in 2010, and the first prosecution for aggression was initiated by the
ICC in 2020.

The challenges of ICL11 is the issue of universal jurisdiction. Universal jurisdiction refers to
the principle that certain crimes are so heinous that any country may prosecute individuals for
them, regardless of where the crimes were committed or the nationality of the individuals.
However, not all countries recognize universal jurisdiction, and some countries may be
reluctant to prosecute individuals for crimes committed in other countries. This has led to
calls for greater international cooperation and coordination in the prosecution of international
crimes.12

A. Importance of International Criminal Law

ICL is essential in promoting accountability and justice for several reasons. Firstly, it
provides a framework for the prosecution of serious international crimes, such as genocide,
crimes against humanity, and war crimes, which often go unpunished in national courts. The
establishment of international criminal courts such as the ICC, the ICTR, and the ICTY has
been an essential step in bringing perpetrators of international crimes to justice. The ICC, in

8
id.
9
Bassiouni, C. (2014) “Preliminary material,” Introduction to International Criminal Law, 2nd Revised Edition,
1, pp. i-cxxxvi.
10
Slobodan Milošević trial - the prosecution’s case (no date) Slobodan Milošević Trial - the Prosecution’s case
| International Criminal Tribunal for the former Yugoslavia. ICTY. Available at:
https://www.icty.org/en/content/slobodan-milo%C5%A1evi%C4%87-trial-prosecutions-case (Accessed:
February 15, 2023).
11
Tan, Y., 2018. The Identification of Customary Rules in International Criminal Law. Utrecht Journal of
International and European Law, 34(2), pp.92–110.
12
id.
particular, has played a critical role in the fight against impunity, by prosecuting high-level
officials who have committed international crimes, including heads of state.

Secondly, international criminal law promotes accountability and justice by ensuring that
victims of international crimes are given an opportunity to seek redress. Through the
establishment of international criminal tribunals, victims of international crimes have been
able to seek reparations, including compensation for the harm they have suffered. For
example, the ICTR established a Victims and Witnesses Unit, which provided assistance to
victims and witnesses of the Rwandan genocide.

Thirdly, international criminal law promotes accountability and justice by sending a message
to potential perpetrators of international crimes that they will be held accountable for their
actions. The establishment of international criminal tribunals, together with the prosecution
of high-level officials, sends a strong message to potential perpetrators that they will be held
responsible for their actions.

II. JURISDICTION OF INTERNATIONAL CRIMINAL TRIBUNALS AND COURTS

International criminal tribunals and courts have been established in recent years to prosecute
and try individuals for crimes against humanity, war crimes, and genocide. These tribunals
are established by the international community, and their jurisdiction is determined by the
nature of the crimes they are tasked to prosecute. This essay will explore the various types of
jurisdiction exercised by international criminal tribunals and courts, and will analyze some of
the leading case law and legal principles that guide these tribunals.13

A. Types of Jurisdiction14

There are several types of jurisdiction that international criminal tribunals may exercise.
These include:

1. Territorial Jurisdiction: This refers to the power of a tribunal to prosecute crimes

committed within its geographical area. This type of jurisdiction is often exercised by
national courts and is also relevant for international tribunals.

2. Personal Jurisdiction: This refers to the power of a tribunal to prosecute individuals

who have committed crimes within the territorial jurisdiction of the tribunal. This is often
based on the nationality of the individual, or on the location of the crime.

13
Akhavan, P. (2011). The Rise and Fall of Universal Jurisdiction, Leiden Journal of International Law, 24(3),
715-742.
14
Robinson, D. (2003). Defining Universal Jurisdiction, Berkeley Journal of International Law, 21(2), 385-422.
3. Universal Jurisdiction: This refers to the power of a tribunal to prosecute individuals for
crimes that are so serious that they are considered to be crimes against humanity,
regardless of where the crimes were committed, the nationality of the perpetrator or the
victim, or any other connection to the tribunal’s jurisdiction. This type of jurisdiction is
often exercised by international tribunals, and is considered a tool to combat impunity for
the most serious crimes.15

4. Active Nationality Jurisdiction: This refers to the power of a tribunal to prosecute

individuals who are not nationals of the state in which the crime was committed, but who
have committed the crime against the nationals of that state.

5. Passive Nationality Jurisdiction: This refers to the power of a tribunal to prosecute

individuals who are nationals of the state in which the crime was committed, but who
have committed the crime against the nationals of another state.

6. Functional Jurisdiction: This refers to the power of a tribunal to prosecute individuals

who have committed crimes that fall within its jurisdiction, regardless of the location of
the crime or the nationality of the perpetrator or the victim. This type of jurisdiction is
often exercised by international tribunals and is based on the principle of
complementarity, which states that the international community has a responsibility to
prosecute serious crimes where the state in which the crime was committed is unable or
unwilling to do so.16

There are several key cases and legal principles that guide the exercise of jurisdiction by
international criminal tribunals.

1. The Nuremberg Principles:17 These principles were established by the International

Military Tribunal at Nuremberg, which was established after World War II to prosecute
the leaders of the Nazi regime for crimes against humanity. The principles state that
individuals can be held accountable for international crimes even if they were acting on
behalf of a government or military, and that ignorance of the law is no defence.

2. The Rome Statute: The Rome Statute established the ICC, which is the first permanent
international criminal tribunal with jurisdiction over genocide, crimes against humanity,
war crimes, and aggression. The statute recognizes the principle of complementarity,
15
Bassiouni, M. (2004). International Criminal Law: Historical Development, Contemporary Status, and Future
Prospects, American University International Law Review, 19(4), 687-718.
16
Williams, T. (2016). Complementarity and the Exercise of Jurisdiction by the International Criminal Court,
Journal of International Criminal Justice, 14(1), 9-30.
17
id at 1.
 which means that the ICC will only prosecute cases where the state in which the crime
was committed is unable or unwilling to do so.18

3. The Tadic Case19: The Tadic Case was the first case heard by the ICTY, and it
established that the tribunal has jurisdiction over war crimes and crimes against humanity
committed during armed conflict in the former Yugoslavia.

4. The Lubanga Case20: The Lubanga Case was the first case heard by the ICC, and it
established that the ICC has jurisdiction over the crime of conscripting and enlisting child
soldiers.

B. Challenges and controversies surrounding jurisdiction of international criminal

tribunals

The jurisdictional challenges and controversies surrounding international criminal tribunals

arise from different legal systems, political interests, and cultural norms. This essay examines
some of the critical challenges and controversies related to the jurisdiction of international
criminal tribunals, including the limitations and exceptions of jurisdiction, the principle of
complementarity, the immunities of heads of states, and the admissibility of evidence.

1. Jurisdictional Limitations and Exceptions:

The principle of territoriality, one of the fundamental principles of international criminal law,
requires that the crimes be committed within the territorial boundaries of a state for a tribunal
to exercise jurisdiction. However, the territorial principle is not absolute, and other factors
may give rise to the jurisdiction of international criminal tribunals. For example, the principle
of passive personality jurisdiction allows a state to exercise jurisdiction over crimes
committed against its nationals, even if the crimes occurred outside the state’s territory. The
principle of active personality jurisdiction allows a state to exercise jurisdiction over crimes
committed by its nationals outside its territory. The principle of universal jurisdiction grants
jurisdiction to any state to prosecute certain international crimes, regardless of where they
occurred or the nationality of the accused.

However, there are limitations and exceptions to the application of universal jurisdiction. The
ICJ recognized that the application of universal jurisdiction is subject to the consent of the

18
(1998) Rome Statute of the International Criminal Court. publication. ICC. Available at: https://www.icc-
cpi.int/sites/default/files/RS-Eng.pdf (Accessed: February 15, 2023).
19
Prosecutor v Tadić, Prosecutor v Dusko Tadi, Case No IT-94-1-AR72.
20
The Prosecutor v. Thomas Lubanga Dyilo, ICC-01/04-01/06.
states concerned and the principle of non-intervention in the internal affairs of other. 21 In
other words, a state may not exercise universal jurisdiction over another state’s officials,
including heads of states, for acts committed in an official capacity. The limitations to the
application of universal jurisdiction have been a subject of controversy, particularly in cases
where states refuse to prosecute their nationals accused of international crimes.

2. The Principle of Complementarity:

The principle of complementarity is another significant issue in the jurisdiction of

international criminal tribunals. The principle provides that international criminal tribunals
should only exercise jurisdiction when national courts are unable or unwilling to prosecute
the crimes in question. The principle is a recognition of the primacy of national courts in
prosecuting international crimes, and it reflects the concern for state sovereignty in the
international legal system. The ICC is a manifestation of the principle of complementarity.
The ICC only has jurisdiction if national courts are unwilling or unable to prosecute the
crimes within their jurisdiction.

The principle of complementarity has been a subject of controversy in cases where national
courts fail to prosecute the accused or the accused are shielded by immunities. For example,
in the case of Omar Al-Bashir, the former President of Sudan, the ICC issued an arrest
warrant for his arrest for crimes against humanity and genocide in Darfur. However, Al-
Bashir was shielded by the immunity granted to heads of states under international law, and
his arrest and surrender to the ICC were not possible. The case highlighted the challenges of
the principle of complementarity and the limits of international criminal tribunals’
jurisdiction.

3. Immunities of Heads of States:

The immunities of heads of states are one of the significant challenges in the jurisdiction of
international criminal tribunals. The immunity of heads of states is a reflection of the
principle of state sovereignty and diplomatic relations. The immunity is intended to protect
heads of states from legal actions that may interfere with their official duties and functions
However, the immunity of heads of states may be subject to limitations in cases where the
accused is charged with international crimes. The ICTY in the case of Tadic held that the
immunity of heads of states does not extend to international crimes such as war crimes,
crimes against humanity, and genocide. 22 The decision was significant as it recognized the
21
id at 6.
22
Prosecutor v Tadić, Prosecutor v Dusko Tadi, Case No IT-94-1-AR72.
primacy of international law over the immunity of heads of states. The ICC also recognizes
the limitations to the immunity of heads of states in cases where the accused is charged with
international crimes.

The immunities of heads of states have been a subject of controversy, particularly in cases
where the accused is still in office. The immunity may prevent the accused from being
prosecuted or arrested, and this may hinder international criminal tribunals from exercising
their jurisdiction. The decision of the ICJ in the case of Jurisdictional Immunities of the State
recognized the immunity of heads of states under international law but subject to limitations.
The case highlighted the need for a balance between state sovereignty and the prosecution of
international crimes.23

4. Admissibility of Evidence:

The admissibility of evidence is another significant challenge in the jurisdiction of

international criminal tribunals. The admissibility of evidence in international criminal
tribunals is subject to the principles of fairness, impartiality, and legality. The admissibility of
evidence may be subject to challenges in cases where the evidence is obtained through illegal
or coercive means. The ICC recognizes the need for the admissibility of evidence to be in
accordance with international human rights law and customary international law. The ICC
may exclude evidence obtained through illegal or coercive means, and the trial chamber may
also exclude evidence that is irrelevant, prejudicial, or unreliable.

The admissibility of evidence may also be subject to challenges in cases where the evidence
is obtained from confidential sources or classified materials. The ICTR in the case of
Nahimana,24 held that the prosecution must disclose the evidence to the defence in cases
where the evidence is obtained from confidential sources. The decision reflects the need for
fairness and impartiality in the proceedings of international criminal tribunals.

III. INVESTIGATING AND PROSECUTING INTERNATIONAL CRIMES

The international community has recognized the need to prosecute and investigate these
crimes as they threaten peace and security, as well as the principles of humanity. This paper
will discuss the investigation and prosecution of international crimes, the role of international
criminal tribunals, the challenges and controversies surrounding international investigations,
and case laws.

23
State. Germany v. Italy. ICJ Reports 2012.
24
Prosecutor v. Nahimana et al. ICTR-99-52-T.
A. Investigating International Crimes

Investigating international crimes is a complex process, especially when they are committed
in a different jurisdiction from where the crime originated. The investigation process involves
various steps, including collecting evidence, identifying the accused, and establishing the
jurisdiction of the court. International criminal tribunals have played a significant role in
investigating international crimes, which includes crimes against humanity, war crimes, and
genocide.25

The most prominent international criminal tribunals that investigated international crimes is
the ICTY. The tribunal was tasked with investigating crimes such as genocide, crimes against
humanity, and war crimes committed by individuals from different ethnic backgrounds. The
tribunal’s investigation process involved collecting evidence, interviewing witnesses, and
analysing documents to establish the crimes committed and the identity of the accused.

The role of international criminal tribunals in investigating international crimes is crucial as it

ensures that justice is served and perpetrators of such crimes are held accountable. However,
the investigation process is not without challenges and controversies.

B. Challenges and controversies surrounding international investigations

The challenges of international investigations is the lack of cooperation from states that may
be harbouring the suspects. States may refuse to extradite suspects, impede investigations or
deny access to evidence. This can lead to a lack of evidence, which can result in the accused
being acquitted. For example, in the case of Radovan Karadzic, the former President of the
Republika Srpska, he was able to evade arrest for several years, and when he was finally
arrested, he was acquitted of genocide charges.26

Another challenge of international investigations is the issue of obtaining evidence from

conflict zones. In such situations, evidence may be destroyed or lost, and witnesses may be
difficult to locate. This can make it challenging to establish the identity of the accused and
the crimes committed. For example, in the case of the International Criminal Tribunal for
Rwanda, the destruction of evidence and the lack of witnesses made it difficult to prosecute
some of the accused.27

25
Arsanjani, M.H. and Reisman, W.M. (2005) “The law-in-action of the International Criminal Court,”
American Journal of International Law, 99(2), pp. 385–403. Available at: https://doi.org/10.2307/1562504.
26
Hague prosecutors demand life for Bosnian Serb leader Karadzic (2014) Reuters. Thomson Reuters.
Available at: https://www.reuters.com/article/uk-warcrimes-karadzic-idUKKCN0HL24C20140926 (Accessed:
February 15, 2023).
27
C. Prosecuting International Crimes

Prosecuting international crimes involves establishing the guilt of the accused beyond a
reasonable doubt, which is a high standard. International criminal tribunals have played a
significant role in prosecuting international crimes, and they have been successful in securing
convictions.

The ICC is the most prominent international tribunal responsible for prosecuting international
crimes. The ICC’s prosecution process involves collecting evidence, identifying the accused,
and establishing jurisdiction. The court can prosecute individuals from any state, and the
prosecutor can initiate an investigation on their own accord.28

The ICC has secured several convictions, including that of Thomas Lubanga Dyilo, a former
warlord from the Democratic Republic of Congo, who was convicted of enlisting and
conscripting children under the age of 15. The court has also convicted Jean-Pierre Bemba,
the former Vice President of the Democratic Republic of Congo, of war crimes and crimes
against humanity.29

However, the ICC has also faced criticism and controversy, particularly regarding its
selective targeting of certain states and individuals. For example, the ICC has been accused of
bias against African states, as the majority of its investigations have been in Africa. This has
led some African states to withdraw from the ICC, arguing that the court is targeting African
leaders unfairly.30

IV. FAIR TRIAL RIGHTS AND INTERNATIONAL CRIMINAL LAW

Fair trial rights are essential elements of any legal system that operates based on the rule of
law. The idea that every person has the right to a fair trial is a fundamental principle of
international criminal law. The fair trial rights provide individuals accused of crimes with
essential guarantees that are necessary to ensure that the trial process is impartial and just.
The concept of fair trial rights also extends to international criminal law, where individuals
accused of committing serious crimes against humanity, war crimes, and genocide are
prosecuted. This paper discusses the importance of fair trial rights in international criminal
law and analyses how fair trial rights are protected in the international legal system. 31
28
Van der Wilt, H. (2014). International criminal law and procedure. Cambridge University Press. 19(4), 67-78.
29
The Prosecutor v. Thomas Lubanga Dyilo, ICC-01/04-01/06.
30
Cryer, R. et al. (2010) “National Prosecutions of International Crimes,” An Introduction to International
Criminal Law and Procedure, pp. 64–84. Available at: https://doi.org/10.1017/cbo9780511760808.005.
31
Dehn, J. (2015). Fair trial rights in international criminal law: the perspectives of victims, accused and the
prosecutor. International Journal of Law in Context, 11(4), 401-414. Doi: 10.1017/S1744552315000262.
A. Importance of fair trial rights in international criminal law

The fair trial rights are essential in ICL because they provide individuals accused of crimes
with the necessary safeguards to ensure that they receive a fair and impartial trial. Fair trial
rights include the right to a public trial, the right to be informed of the charges against them,
the right to legal representation, the right to remain silent, the right to cross-examine
witnesses, the right to an impartial tribunal, and the right to be presumed innocent until
proven guilty.32

One of the primary reasons why fair trial rights are important in international criminal law is
that the crimes that are prosecuted in the international arena are of a serious nature. The
crimes committed against humanity, war crimes, and genocide are heinous and have far-
reaching consequences.33 It is therefore essential that the process of prosecuting these crimes
is fair and impartial, and that the accused is given the necessary guarantees to ensure that they
receive a fair trial. Without these guarantees, the trial process could be influenced by political
considerations, and the accused could be subjected to unfair and unjust treatment.

1. The Protection of Fair Trial Rights in International Criminal Law

The international legal system has taken various measures to protect the fair trial rights of
individuals accused of crimes. The primary mechanism for protecting fair trial rights is
through the ICC. The ICC has established a set of procedures that are designed to ensure that
individuals accused of crimes receive a fair trial. These procedures include the right to legal
representation, the right to cross-examine witnesses, and the right to a public trial.

Another mechanism for protecting fair trial rights is through the Universal Declaration of
Human Rights (“UDHR”) and the International Covenant on Civil and Political Rights
(“ICCPR”). Both the UDHR and ICCPR contain provisions that protect the fair trial rights
of individuals. For example, Article 14 of the ICCPR provides that everyone has the right to a
fair trial. This includes the right to be informed of the charges against them, the right to legal
representation, the right to remain silent, the right to cross-examine witnesses, and the right to
an impartial tribunal.34

The European Convention on Human Rights (“ECHR”) is another international instrument

that protects fair trial rights. The ECHR provides for the right to a fair trial under Article 6.
32
Safferling, C. (2012). The fair trial principle and the ICC: Challenges and prospects, Journal of International
Criminal Justice, 10(2), 231-249.
33
id.
34
Bantekas, I. (2010). Fair trial rights in international criminal law, Journal of International Criminal Justice,
8(5), 1195-1216.
The ECHR protects the fair trial rights of individuals in the European Union and has been
instrumental in ensuring that individuals accused of crimes receive a fair trial in the EU. 35

2. The Role of the Prosecutor in Protecting Fair Trial Rights

The prosecutor has a critical role in protecting fair trial rights. The prosecutor has a duty to
ensure that the trial process is fair and that the accused is given the necessary guarantees to
ensure that they receive a fair trial. This means that the prosecutor must act impartially and
must not engage in any conduct that could prejudice the trial process. 36 The prosecutor must
also disclose all relevant evidence to the accused and their legal representative. Failure to
disclose evidence could result in the trial being unfair, and the accused being denied their fair
trial rights.

The prosecutor must also ensure that the trial process is not influenced by political
considerations. The prosecutor must act independently and must not be subject to any
pressure or influence from external sources. The prosecutor must also ensure that the trial
process is conducted in a timely manner and that the accused is not subjected to unnecessary
delays or prolonged detention.37

V. THE FUTURE OF INTERNATIONAL CRIMINAL LAW

Since the establishment of the ICC in 2002, ICL has gained significant importance as a means
of ensuring accountability for the most serious crimes, including genocide, war crimes,
crimes against humanity, and aggression. However, international criminal law faces several
challenges, including the limits of its jurisdiction, the effectiveness of its enforcement
mechanisms, and the potential politicization of its prosecutions. This essay will discuss the
current challenges and emerging trends in international criminal law.

A. Current Challenges

1. Jurisdictional Limitations

Challenges facing ICL is the limitation of its jurisdiction ICL is based on the principle of
complementarity, which means that the ICC can only prosecute individuals if the national

35
Schabas, W. A. (2012). Fair trial rights in international criminal law: What is fair?, Journal of International
Criminal Justice, 10(1), 1-22.
36
Carcano, A. (2016). The principle of a fair trial in the jurisprudence of the international criminal tribunal for
the former Yugoslavia, Leiden Journal of International Law, 29(3), 821-839.
37
Novaković, V. (2017). The principle of a fair trial in international criminal law from Nuremberg to the ICC.
Facta Universitatis, Series: Law and Politics, 15(3), 307-316.
justice system is unable or unwilling to do so. 38 This principle is designed to ensure that the
ICC does not undermine the sovereignty of states or duplicate the work of national courts.
However, in practice, it has resulted in limited jurisdiction for the ICC, as many states have
taken steps to strengthen their national justice systems and investigate and prosecute
international crimes themselves.39

2. Enforcement Mechanisms

Another significant challenge facing international criminal law is the effectiveness of its
enforcement mechanisms. The ICC relies on states to arrest and surrender suspects, but many
states have refused to do so, either because they do not recognize the ICC’s jurisdiction or
because they are unwilling to cooperate with its investigations. In addition, the ICC has no
police force or other enforcement mechanism, which means that it relies on the cooperation
of states to execute its arrest warrants and enforce its judgments.40

3. Politicization

A third challenge facing international criminal law is the potential politicization of its
prosecutions. The ICC is a judicial institution, but its work has significant political
implications, as it deals with crimes committed in the context of armed conflict and mass
atrocities. This can make it vulnerable to political interference, both from states that may seek
to protect their own interests and from international organizations that may use the ICC as a
tool to advance their own agendas. In addition, the ICC’s prosecutorial strategy may be
influenced by political considerations, such as the need to maintain its legitimacy or the
desire to secure cooperation from powerful states.41

B. Emerging Trends

1. Hybrid Tribunals

One emerging trend in international criminal law is the use of hybrid tribunals. Hybrid
tribunals are courts that are established with a combination of national and international
judges, prosecutors, and other staff. They are designed to combine the strengths of national
and international justice systems, and to overcome some of the limitations of both. Hybrid
tribunals can be established with the consent of the host state, which can help to overcome
38
Cryer, R., Friman, H., Robinson, D., & Wilmshurst, E. (2014), An Introduction to International Criminal Law
and Procedure, Cambridge University Press, 15(3), 307-316.
39
Mégret, F. (2020), International Criminal Law, Oxford University Press. 3 (3), 44-61.
40
Morris, M. (2015). Hybrid Tribunals, In C. Stahn, L. van den Herik, & J. Easterday (Eds.), Future
Perspectives on International Criminal Justice, (pp. 193-208), T.M.C. Asser Press.
41
id.
the jurisdictional limitations of the ICC. They can also be more cost-effective than
international tribunals, and can provide a greater degree of local ownership and
accountability.42

2. Corporate Criminal Liability

Another emerging trend in international criminal law is the development of corporate

criminal liability. International criminal law has traditionally focused on the criminal
responsibility of individuals, but there is increasing recognition of the role that corporations
can play in perpetrating or enabling international crimes. The ICC has jurisdiction over
individuals, but it does not have jurisdiction over corporations. However, there have been
calls for the development of an international legal framework for corporate criminal liability,
which would allow corporations to be held accountable for their role in international crimes. 43

3. Technology and Evidence

A third emerging trend in international criminal law is the use of technology and evidence.
Advances in technology, such as satellite imagery, social media monitoring, and forensic
analysis, have made it easier to collect and present evidence of international crimes. This has
the potential to increase the effectiveness and efficiency of investigations and prosecutions,
and to overcome some of the challenges of jurisdiction and enforcement. However, the use of
technology and evidence also raises significant ethical and legal issues, including the
protection of human rights, privacy, and confidentiality.44

4. Transitional Justice

A fourth emerging trend in international criminal law is the use of transitional justice.
Transitional justice is a set of measures that are used to address past human rights abuses in a
country that is undergoing a transition from conflict or authoritarian rule to democracy and
the rule of law. Transitional justice measures can include criminal prosecutions, truth
commissions, reparations, and institutional reforms. Transitional justice is not limited to
international criminal law, but it can be an important tool for achieving accountability for
international crimes and addressing the root causes of conflict and violence.45

42
Sassòli, M., & Olson, L. (2014). The Relationship between International Humanitarian Law and International
Criminal Law, In A. Clapham, & P. Gaeta (Eds.), The Oxford Handbook of International Law in Armed
Conflict, Oxford University Press, (pp. 629-650).
43
Mukwege, D., & Nsenga, D. (2015). Transitional Justice. In C. Stahn, L. van den Herik, & J. Easterday (Eds.),
Future Perspectives on International Criminal Justice, T.M.C. Asser Press (pp. 171-192).
44
id.
45
id.
C. Future of International Criminal Law: A Normative Protection

The fact that all three departments are working towards the same goal exemplifies what is
really at the heart of public international law, which is the dignity of the person. The
significance of this objective is made clear by the fact that the protection of the person has
achieved a pinnacle state, which is shared by the many disciplines. It is now a matter of
whether or if the legal regulations will be enforced once they have converged in their aim. In
a world that is becoming more unpredictable, people cannot depend only on states to be the
primary dispensers of rights and guardians of their interests. Because of this, the International
Criminal Court is the best vehicle for achieving the justice that is necessary to assert the
dignity of every human, irrespective of where in the globe they may happen to reside.
Theoretically, it has the capacity to enforce the norms that are shared by these three branches
of the legal system, and as a result, it might contribute to the stability of the world by filling
the void left by states that are weak, failing, or have already failed.46

It is possible that a shift in the emphasis of the Court, which is entirely independent from the
research, is to blame for the sustained interest in international criminal law. Initial academic
offerings concentrated on the conceptual challenges confronted by the International Criminal
Court and the field as a whole; however, its practise has tended towards a breakdown of the
relationship between states and international criminal law and has placed a greater emphasis
on the protection of the fundamental rights of the individual. The prosecution of state
officials who had committed or organised mass atrocities was the initial focus of the
discipline; however, that emphasis has since shifted. The International Criminal Court has
never tried or convicted a state official, and the majority of its cases concern those who are in
charge of or a part of rebel groupings.47 This tendency will persist for a prolonged length of
time, as shown by the inquiry being conducted by the International Criminal Court in a
number of scenarios with non-state actors; it reflects the new paradigm, rather than an
unusual occurrence. The provision in the Rome Statute that allows for such prosecutions is
essential, but it is not as essential as the early judgements of the Court. The inaugural
judgements of the Court provide a new opportunity to apply the jurisprudence of the Court to
educate and guide future decisions. This might be explained by the shift in emphasis that has
taken place inside the Court, as well as within the field of international criminal law as a

46
N. Boister, ‘International tribunals for transnational crimes: Towards a transitional criminal court?’, Crim.
L.F., 2012, Vol. 23, pp. 295-318.
47
ICTY, Prosecutor v Kunarac et al., Judgment Trial Chamber, IT-96-23-T & IT-96-23/1-T, 22 February 2001,
para. 467.
whole. This emphasis on non-state actors highlights the possibility for a future of increased
protection against individuals who choose to behave violently against civilian populations
regardless of whether or not they are affiliated with a state. In addition to this, it illustrates the
Court’s growing conformity with the norms of international human rights law and
international humanitarian law. The work done by earlier international criminal courts to
investigate and prosecute major breaches of the rules of war has been brought to completion
by the prosecutorial strategy of the ICC.48

Although there is ongoing discussion regarding the more conceptual and theoretical aspects
of the Court, it would appear that the majority of the work being done by the Court is focused
on bringing individuals to justice in situations where there has been a serious breach of
international criminal law. These violations, which are only natural, often mimic the
restrictions that may be found in international human rights law and international
humanitarian law. There is a slight but observable merging of the disciplines of international
human rights law, international humanitarian law, and international criminal law. This is
because the ideas are frequently similar, and jurisprudence may be classified as belonging to
each of the domains. Because of the manner in which it protects individuals who are left in
the most vulnerable position as a consequence of major abuses of their dignity, the exchange
of ideas is the finest approach to serve the dignity of the person. 49 This is of the utmost
importance in situations when the state is either unwilling or unable to intervene on their
behalf. Therefore, the ICC has developed into the most suitable mechanism for the
preservation of individual dignity and for the enforcement of such protection in situations in
which states are no longer operating as they should be. The study of international criminal
law as a field has continued to grow, and this growth has led to a larger emphasis being
placed on individuals’ legal protections. The realisation that protection is more important
than discipline is perhaps the aspect of this expansion that is the most intriguing. 50 As a result,
people have a right to protection against the misuse of authority, regardless of the identity of
the person who has such power. The era of international criminal law has not yet come to a
close, and the convergence of its goals with those of international humanitarian law and
international human rights law has ensured that it has developed into a tool for preventing the
commission of international crimes with impunity. This season of international criminal law

48
T. Meron, ‘On the Inadequate Reach of Humanitarian and Human Rights Law and the Need for a New
Instrument’, AJIL, 1983, Vol. 77, pp. 589-606.
49
T. Meron, ‘Is international law moving towards criminalization?’, EJIL , 1998, Vol. 9, pp. 18-31.
50
M.E. Badar, E.M.A. Amin and N. Higgins, ‘International Criminal Court and the Nigerian Crisis’, I.H.R.L.R.,
2014, Vol. 29(3), pp. 29-60.
will not end until it does. The International Criminal Court is without a doubt the pointy end
of this instrument’s sharpest edge.51

VI. CONCLUSION

International criminal law has become increasingly important in the last few decades as the
world continues to be plagued by international crimes such as genocide, war crimes, and
crimes against humanity. The role of international tribunals and courts in investigating and
prosecuting these crimes has been paramount in the fight against impunity and the promotion
of justice. However, there are still areas where improvements can be made to enhance the
effectiveness of these institutions in prosecuting international crimes.

The key areas that require attention is the issue of enforcement. International tribunals and
courts have limited enforcement mechanisms, and this has led to several instances where
indicted individuals evade arrest, and justice is not served. Therefore, there is a need to
strengthen the enforcement mechanisms of these institutions by engaging with national law
enforcement agencies, strengthening their cooperation, and providing them with the
necessary resources and support to facilitate the arrest and transfer of suspects to the tribunals
and courts.

Another area that requires attention is the issue of funding. International tribunals and courts
require adequate funding to carry out their mandate effectively. However, there has been a
trend towards reducing funding for these institutions, which has a negative impact on their
ability to prosecute international crimes. Therefore, there is a need for donor countries to
increase their financial support for these institutions, and for the international community to
recognize the important role that international tribunals and courts play in the fight against
impunity.

Additionally, there is a need for international tribunals and courts to improve their outreach
and engagement with the communities affected by international crimes. Victims and affected
communities need to be informed about the work of these institutions and provided with the
necessary support to participate in the judicial process. Furthermore, the tribunals and courts
need to work closely with local communities to ensure that the prosecutions are sensitive to
their cultural and societal norms and to avoid causing further harm to the already vulnerable
communities.

51
id.
The issue of fairness and impartiality is also crucial in the prosecution of international crimes.
International tribunals and courts need to ensure that they are seen as impartial and fair to all
parties involved. This means that they need to have transparent procedures and decision-
making processes that are based on international law and legal principles. Additionally, the
tribunals and courts need to be sensitive to the local context in which the crimes were
committed and ensure that they reflect the cultural and societal norms of the affected
communities.

Finally, there is a need to expand the jurisdiction of international tribunals and courts to
include crimes that have not traditionally been considered as international crimes. This would
include crimes such as environmental crimes, cybercrime, and economic crimes. As the
world becomes increasingly interconnected, crimes that were previously considered domestic
in nature now have international implications. Therefore, there is a need for international law
to evolve to reflect these changes and to ensure that perpetrators of such crimes are held
accountable.

In conclusion, international criminal law has an important role to play in the fight against
impunity and the promotion of justice. International tribunals and courts have been
instrumental in investigating and prosecuting international crimes, but there are still areas
where improvements can be made. The suggestions and recommendations outlined in this
article can help to enhance the effectiveness of these institutions and ensure that justice is
served for victims of international crimes.