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International criminal law is a body of international law designed to prohibit certain categories of conduct commonly viewed as serious & to make perpetrators of such conduct criminally accountable to their perpetration by the State. It regulates international proceedings for prosecuting persons accused for such crimes. It principally deals with genocide, war crimes, crimes against humanity, war of aggression. The International Criminal Law renders with set of rules indicating what acts amounts to international crimes and procedural rules government the prosecution of persons accused of such crimes. Since exclusively war crimes were penalized for which, the vanquished State was held guilty, there was urgency for International Criminal Law resolving unit with global jurisdiction. The international criminal law comprises elements of both sources of international law along with its consequences that are sanctions, penal in nature, which are imposed on individuals. The international criminal law is a subset of the international law. The most important fields are human rights and international humanitarian law as well as the law of the state responsibility. The sources of international criminal law are the same as those of general international law envisaged in Article 38(1) of the Statute of the International Court of Justice: treaties, international customary law, and general principles of law, judicial decisions and writings of eminent legal scholars. The International Criminal Law is significant as there shall be criminal accountability for grave& heinous criminal offences, which is of fundamental importance with regard to respect for the rule of law, deterrence of future violations, and the provision of redress and justice for victims. Crimes such as the massacre of civilians, rape, forcible transfer, torture, indiscriminate bombings, apartheid and persecution all violate the most basic principles of humanity, morality and dignity. Over the last century, the international community has reaffirmed the importance of the protection of these basic values by prohibiting the above conduct and making individuals liable for committing such offences. In practical terms, the result of such cooperation is an interfusion of criminal laws originating from various legal systems into the jurisprudence of international criminal courts and tribunals.

The existing jurisprudence demonstrates that the incorporation by the ad hoc tribunals and the International Criminal Court of national approaches to international criminal law appears to be more of a technical transposition of concepts rather than the result of a meticulous comparative analysis. Consequently, the jurisprudence is replete with internal inconsistencies and lacunae as to the construal of the fundamental concept of a crime in international criminal law. international criminal law is rooted in “generally accepted standards rather than national idiosyncrasies or aberrations”. Despite all positive influences of comparative studies on the advancement of international criminal law, the most challenging exercise in the application of the comparative method is “attempting to reconcile, let alone combine, legal concepts pertinent to different legal systems under the umbrella of international criminal law”. The use of comparative law is not about “transplantation of one dominant model” into international criminal law, rather it is “hybridisation inspired by pluralism”. It is clear that during the drafting process of major international criminal law instruments the statutory language is influenced by the geographical representation of delegates that settle on the most suitable formulation of legal provisions. The judges of international criminal courts have a tendency to reinforce their national perceptions of criminal law, which is clearly visible in a number of the ICTY judgements. However, instead of attempting to bring along legal traditions from own national jurisdictions into international criminal law, it is advisable to resort to a comprehensive comparative analysis that will underline

the existence of commonly shared “universal values” across many legal jurisdictions. Being a field in its own right, international criminal law is a fascinating amalgam of international law, customary law, and general principles derivative from domestic criminal law. Given its unique nature, it is quintessential to lay down a solid theoretical framework of the fundamental concept of a crime as understood in domestic jurisdictions prior to distilling and channelling the substantive law doctrines (actus reus, mens rea, modes of liability, defences) through “general principles” to the field of international criminal law. As it is observed by Delmas- Marty, the use of comparative law should promote “progressive reconciliation between international and domestic law”.

Whilst providing for a hierarchy of sources of law, the Rome Statute of the International Criminal Court (hereinafter—ICC) gives utmost importance to the Statute itself, which is a refined codification of substantive and procedural rules of international criminal law. Customary law and general principles of law are only consulted if the overarching sources do not address the issue at dispute. It should be noted that many legal provisions of the Rome Statute are indicative of opinio juris of States on various matters, although they do not replicate all rules of customary law. Broadly, a crime is a socially harmful act or omission that breaches the values protected by a state. It is an event prohibited by law, one which can be followed by prosecution in criminal proceedings and, thereafter, by punishment on conviction. The state criminalises certain conduct due to burgeoning public pressure to proscribe certain immoral harms. However, criminality shall not be confused with immorality: they are related but not synonymous terms.

Legal jurisdictions construe the concept of a crime with the consideration of existing legal environment, history, social developments etc. Notwithstanding a plethora of domestic approaches towards the complex concept of a crime, there is overwhelming unanimity as to the adverse impact of a crime on society and necessity to combat its recurrence. In the era of globalisation, crimes spill over borders, thus making it more challenging to prosecute and adjudicate when several competing jurisdictions are involved. Furthermore, many crimes are carried out with the involvement and condonation of states, which attests to the atrocious brutality that the entire humankind has been confronted with over the past decades. Regrettably, genocide, war crimes and crimes against humanity reflect the gloomy reality of the contemporary world. Notwithstanding all the challenges on the thorny road to international justice, the world community is increasingly consolidating its legal contours under international law, thus reflecting a greater recognition for certain global commonly shared values.

Submitted by: MIRACLE

University: Law Centre-2 Faculty of Law, University of Delhi

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