All of us are well-acquainted with Gulliver’s Travels. Now, our friend Gulliver supposedly committed the crime of perfidy by playing dead and has escaped from the island list of criminal lawyers in bangalore of Lilliput to the island of Blefuscu to save himself from the clutches of the Lilliputians. So, they send over a message to the residents of Blefuscu to hand over their prisoner. Tarry! But our friend insists upon the fact that he never did any wrong, so what should be the decision taken for this situation.
At the very first place whose law would be applied here? Is it of the Lilliputians or Blefuscu? Or shall it not be of England from where Gulliver came all the way along? To decide if there needs to be a source that would prevail over all these laws or what we call International Laws or to be more specific for this case, International Criminal Law would come into play. So, what does this law state, and what is its source? So, let us delve deeper into our subject.
International law-classification
The concept of national and municipal laws has existed for ages and was very much accepted to provide justice, peace, stability, and maintain the government’s efficiency, which was not in the case of international law. International law is of recent origin. There were many stumbling blocks for its development. It was not considered as a branch of law owing to the view of some scholars like Austin and his other stalwarts that it lacked some of the elements that law should have.
According to him, if an individual commits a wrong, the applying power must have the most power on the sovereign to impose sanctions on him. So, nothing that was solely based on ethics, morality, or good conscience could be considered laws. While there were also scholars like Kelsen who were staunch supporters of it.
He emphasized the fact that international law was superior to national law and it covered national law in a certain way in it and the laws are made to prevent dishevelled structure in the society. At present, there are no more controversies over international law being another branch of law and it gains recognition from all over the world. As is evident from the different statutes through which international law derives i.e. the United Nations Charter, International Court of Justice’s Statute, etc. International law is further divided into two types:
Public International law
Public international law, also known as ‘Jus Gentium’ is a code of conduct or the body of rules that runs either between two nation-states or among more than two nation-states to maintain their relations. Generally, they do not form part of legal statutes or treatises’. They are further divided into:
Administrative law
This branch deals with the structure and organs of the international organization. It provides and restricts the power which is available for the protection of the interests of the nations or states.
Criminal Law
It is the branch of law that defines the offences and also lays down the procedure of punishment for the offenders for their acts of deviance. The main objectives of these laws are to maintain the peace and order of the world. In a civilized world, an act of sin committed against an individual is considered an act of wrong against society. This also brings us to the point of why civil law is not a part of public law. Criminal law is considered ‘right in rem’ that is it is applied for the whole society since a crime committed disturbs the whole society by offending the state or doing the acts which are forbidden by the society. While Civil law is ‘right in personam’ and is committed against an individual and is generally to uphold the rights of a person residing in that very state.
Sources of International criminal law
International Criminal Law is quite different from domestic criminal law as for a matter of fact, its formulation is not as it is in the case of municipal ones. The foremost factor is that usually these laws are formulated by a single sovereign body in a nation-state while in the case of International laws there is no highest sovereign authority as such but an organization which is an embodiment of various nation-states who have come up with a common consensus to formulate these laws. So, International Criminal Law derives its sources primarily from two areas as mentioned according to their hierarchy:
Treaties
The peace treaties at war or multilateral treaties form the main source of formulating these laws. These treaties and conventions being persuasive enough and formal sources of law are also called ‘hard laws’. The centrally play the role of forming a conciliation/defence or extradition pact between or among the nations or countries.
However, even if these treaties do not form part of the laws yet, they are binding on the players who have entered it has obligations to follow the terms and conditions or rules and regulations incorporated within it. According to Article 38 (1) (a) of the International Court of Justice’s Statute, the term ‘International convention’ concentrates upon the treaties as a source of creating laws and regulation and acknowledging rising among the parties who have entered into it.
International customs
The International Court of Justice’s Statute defines International custom as evidence of what is generally practiced by the law. It is the second source of laws about criminal justice at the international level. The practice of deriving custom as a source implies the decentralised nature of these bodies and it is quintessential for a custom to be accepted as a law that it is in practice in the nation-states and further it is also widely accepted by them, implying the idea of consensus-ad-idem. Along with that, there are also further requirements for a custom to be law.
However, there are some instances where international treaties also in a way act as a custom or truly become a custom. Usually, when a multilateral treaty does fall short of efficient provisions and is not agreeable to most nations, the customs come to the rescue by applying the general rule of the law.
Even at times for crystallisation of international treaty, customs are required in case they are not easily identified or recognized. Further, there are also cases of what is also known as ‘instant custom’ when the provision of any treatise or convention has been recognized by the International Court of Justice itself at many instances as a general customary rule or practice then such provisions may be defined as customary law.
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