Overlooking the endless doctrine that embodies the states into the motif of the international system, I found myself in need of drawing attention upon the individuals’ status in this very framework. Given the acute flourish of globalization, it comes as no surprise that the need for change is the one that characterizes nowadays’ international legal environment comes as no surprise.
Not to spoil the surprise, it can be briefly said that the novelty at stake implies the emergence of an International Criminal Code, since it would at least mitigate the outburst of the well-known 21st’s worldwide process.
The phrase ‘international law’ basically means the system of law regulating the interrelationship of sovereign states and their rights and duties vis-à-vis one another. During the 20th century, however, international law underwent a process meant to turn it into a legal system which viewed the individual as one of the central subjects of its endeavours, a certain international personality being required. Thus, nowadays, international law can be defined as covering not only state sovereignty, but also the rights of persons within the territory and dominion of one nation, by reason of acts, private or public, done within the dominions of another nation.
While pondering the question ‘Why have we arrived at a new definition of international law during the 20th century?’ I came to the realisation that it was precisely in the 20th century that the process of globalisation began to flourish. Therefore, this article is meant to provide an overview not only of the changes that globalisation has already brought about, but also of the possible future developments that this trend might facilitate. The focus of international law in the previous century was enlarged as to include other entities apart from the states, but individuals are still only limited subjects of the international legal system. It is my firm belief that this situation is bound to change, especially since the aim of the agents who first envisaged the European Union was to eventually arrive at some kind of European Federation similar to that in the United States.
Individuals have become limited subjects in international law because the latter has provided them with certain obligations, the violation of which directly implies international criminal responsibility. Although an International Criminal Code does not exist yet, a systematisation of the crimes is included in the Rome Statute of the International Criminal Court, which covers, however, only the domain of international crimes. In order for conventional incrimination to be part of the general international law, the universalization of the treaty is of absolute necessity.
Along with the development of the incriminations and the establishment of certain international courts, a judicial regime covering the criminal responsibility of the individual in the public international law should naturally emerge. This particular regime will be a mixture of general principles of law and of specific rules of public international law. In international law, the individual criminal responsibility is the institutive norm of the international personality of the individual, who remains subject of international law as long as the rules of the criminal international law have applicability upon his/her behaviour.
In what concerns the concept of ‘international legality’, it should not be confused with the legality encountered in the national legislative systems, the sources of the former being the judicial rules established through custom, general principles and treaties.
Referring to the international applicability of the principle non bis in idem, it should be pointed out that this treaty is of strict applicability only when a person is judged for the same crime by the courts of the same state.
Moving forward to the specific rules of international law, the first to be mentioned is universal competence, a rule of customary law which recognises the competence of internal courts to judge international crimes perpetrated abroad, regardless of the place where they have been committed, the nationality of the author or of the victim
The rule that establishes the primate of the international incrimination derives from the international criminal’s quality of being a subject in the international law. It is an aspect that regards centralization in the international system because it limits the principle of the state’s personal competence.
The imprescriptibility of the international crimes emerges as an international standard, taking into account the fact that various systems of internal law have stuck to the opposite rule.
In the international background, judicial efficiency can sometimes be obtained only through centralization. The fact that the repression of international criminals underwent the process of centralization transformed the individuals accused of international crimes into limited subjects of international law. The customary rules and the general principles of law, several treaties and resolutions of the UN Security Council, constitute the judicial ground of incrimination. Unfortunately, the encoding has not been done systematically. According to article 5 in the Statute, there are four international crimes –this represents the most extended encoding realized until now: genocide, crimes against humanity, war crimes and crimes of aggression.
According to international law, two international crimes are of particular importance, international terrorism and corruption, both of them having found a favorable ground in globalization, both of them having the capacity of affecting the international system. The major problem in what concerns terrorism is the absence of a legal definition, its justification lying in the fact that terrorism is thought to be a political crime and terrorist violence has been traditionally accepted or tolerated for some, terrorism being associated with the fight for liberty or self-determination. The judicial consequence of qualifying terrorism as a political crime has been extremely serious: the exemption of the crime from the area of application of extradition conventions.
In what concerns corruption, it may be stated that it affects both the statehood itself and the international system. Market globalization achieved through the liberalization of product, commerce and services has pointed out the limitations that mark any attempt to get rid of corruption through the systems of national law instruments alone. The Organization for Economic Cooperation and Development has been working on various projects concerning the extension of regulations, such as the inclusion of the workers of political parties into the category of public workers or measures aimed at achieving the repression of corruption in the private system. However, the great majority of stipulations are characteristic to the so-called ‘non-binding agreements’. From this point of view, the UN Convention is, apparently, a complete framework, but it still has to prove its effectiveness.
The overview presented above offers a clear image of the state of judicial affairs at an international level in Europe. Whereas there are some obvious foundations for the construction and development of a sound international legislative body, the lack of proper instruments that might be effectively employed in a majority of cases involving international crimes and felonies is clearly affecting international security. Therefore, I strongly believe that international law is in dire need of improvement. First of all, we need a comprehensive International Criminal Code that sets the grounds for international incrimination, comprising of a list of all the crimes that fall under the incidence of international law. It should also yield a judicial regime able to determine the criminal responsibility of the individual in the public international realm. This International Criminal Code should include stipulations that would allow neither for the inefficiency of the universal permissive competence, nor for the limitations of the universal mandatory competence. Secondly, it should offer a clear-cut definition of the crimes of aggression, as well as a legal definition of terrorism. Thirdly, this code must stipulate that terrorism is a crime, not a political action, so that it will no longer be exempt from the application of extradition conventions. Moreover, the code must include corruption among the crimes punishable at an international level, since not all national systems can be relied on to firmly incriminate and efficiently prevent bribery attempts. In my opinion, globalization was the trigger that set in motion all the developments which now require that mandatory alterations be made to international law. The process of globalization is not likely to cease, and this ultimately means that all resistance to change in the realm of international legislation is deemed to be futile. The only certain thing bound to mark the evolution of international law is change itself. The future International Criminal Code is knocking on our present society’s door, demanding to be let in.
