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Updated: June 15, 2010 13:03 IST

Norms of global criminal law

Amita Dhanda
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On the 12th anniversary of the International Criminal Court, the United Nations Secretary-General urged that more countries should accede to the Rome statute so that an era of accountability could be ushered in. Both the institution (ICC) and the statute are important in themselves. Yet any serious discussion on international criminal law cannot be limited to the Roman statute. A collection of essays, the book under review provides a fair sample of the issues that require deliberation in the realm of international criminal law and human rights. While at one end of the spectrum there is an essay discussing the legitimacy of using torture to fight terrorism, at the other end there is another that wants an international legal response to the problem of domestic violence. The history and evaluation of international criminal law; the judicial exposition on serious violations of humanitarian law; and the norms of equity that should guide the ICC in the exercise of its powers are some of the other subjects discussed in the book.

Uneven

The product is singularly devoid of editorial scrutiny and judgment. The essays are of uneven length — it varies from five pages to 100 pages. There is no analytical sequence in their presentation. Thus a piece on India's nuclear policy is followed by one on the distinction between ‘civilians' and ‘combatants.' And, the various issues related to war crimes are found scattered. The disparate nature of the collection is further compounded by the absence of an introduction by the editor.

Balanced

As for the essays, Bertrand G. Ramcharan's contribution on the challenges before the Human Rights Council offers an informed and balanced analysis that is characteristic of a piece by one who has had the benefit of watching the system from inside — he had been High Commissioner with the erstwhile Human Rights Commission. He wants the Council's operation to be above international politics because only an even-handed treatment of all countries would lend legitimacy to human rights enforcement and international law.

This plea for equality of treatment resonates through several of the articles. Thus, while Katerina Novotna questions the denial of head-of-state immunity to Charles Taylor by the Sierra Leone Special Tribunal, Hans Kochler condemns the iniquitous manner in which the ICC addressed the infringement of International Criminal Law in Sudan.

Values

Notably, the contributors neither romanticise nor belittle the importance of international criminal law. Instead, by marshalling facts and adducing evidence, they speak about the kind of norms and values that should inform such law. To give an illustration, Almiro Rodrigues points out how fair-process norms applied to ordinary criminal trials cannot be extended to war crime trials. This is because the perpetrator, who is viewed as a villain by one side, is seen as a hero by the other.

Informed by this insight, Rodrigues examines the various ingredients of a fair trial — such as self-representation, protection of liberty, and personal presence at trial — to determine how these principles should operate in a trial of war crimes.

Considerable significance is accorded to the decisions of international courts. It is because judicial choices do not just impact the parties before the court but influence the behaviour of the larger international community. This is the very reason why Wattad strongly disapproves of the decision of the Supreme Court of Israel that allowed the defence of necessity to be pleaded for applying torture on alleged terrorists. He makes a fascinating distinction between ‘justification' and ‘excuse' and contends that while the defence of necessity should not be a justification for state officials, it may, in an individual case, be an excuse. This is because an excuse in no way condones the wrongfulness of the act, even as it allows for compassion to be shown to the wrongdoer. S.R. Bedi argues that India altered its policy of peaceful use of nuclear power only after the ICJ allowed for the possible use of nuclear weapons in self-defence.

Traditionally, the prosecution of crime and maintenance of peace and order have been regarded as the sole responsibility of national governments. As a corollary, a failure of national government and a failure in the enforcement of criminal law have come to be seen as inter-linked. Such perceptions of crime enforcement no longer hold good. The question what kind of behaviour merits what type of intervention by the international community is far from settled. This book makes an informed intervention in this vital area of contemporary concern.

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