Definition, History, and Principles of International Criminal Law

PERTANYAAN

What is international criminal law? What is the brief history of international criminal law? Please also explain the principles of international criminal law.

INTISARI JAWABAN

International criminal law is a science that comes from a combination of two disciplines, namely criminal law and international law. Thus, the principles in international criminal law are also based on the two legal sciences. International criminal law is also a response from the international community that wants to create international justice.

Please read the review below for a further explanation.

ULASAN LENGKAP

This article is an English translation of Pengertian, Sejarah, dan Asas Hukum Pidana Internasional, written by Renata Christha Auli, S.H. and was published on Thursday, 7 September 2023.

This article is an update of the article entitled International Criminal Law: Definition, History, and Its Principles, which was first published on Monday, 19 September 2022.

All legal information available on Klinik hukumonline.com has been prepared for educational purposes only and is general in nature (read the complete Disclaimer). In order to obtain legal advice specific to your case, please consult with Justika Partner Consultant.

Definition of International Criminal Law

In studying international criminal law, there are two terms that need to be understood. First, criminal law is a provision that regulates and limits human behavior in eliminating violations of the public interest. Criminal law regulates criminal offenses that are prohibited to be committed and punishment or punishment for criminal offenses committed by a person.[1]

Second, international law is a provision that regulates relations between states and these provisions explain the rights and obligations of states in international society.[2] The word international refers to things that cross national borders, and involve more than one country. Thus, international criminal law is the rules and principles of law that are international, not national or domestic.[3]

Then, experts have their own definitions in defining international criminal law. The definition of international criminal law according to experts is as follows.

1. Bassiouni

International criminal law is the result of the merger of two legal disciplines that have existed and developed in their respective paths that complement each other. These legal disciplines are the criminal law aspects of international law and the international law aspects of national criminal law.[4]

2. Romli Atmasasmita

International criminal law is national criminal law that regulates international cooperation in terms of the prevention and eradication of transnational crimes and international crimes.[5]

3. Roling

International criminal law is a law that determines the national criminal law that will be applied to crimes that have actually been committed when there are international elements in it.[6]

4. I Wayan Parthiana

International criminal law is a set of legal rules and principles governing international crimes.[7]

History of the Development of International Criminal Law

The history of international criminal law begins with the establishment of the world's first two ad hoc international criminal courts after World War II, namely the Nuremberg International Military Tribunal and the Tokyo International Military Tribunal. These two Courts are clear evidence of the international community's response to realizing international justice.

Furthermore, two other ad hoc international criminal courts were born based on UN Security Council Resolutions, namely the International Criminal Tribunal for the Former Yugoslavia ("ICTY") in 1993 located in The Hague, Netherlands. Then there is the 1994 International Criminal Tribunal for Rwanda ("ICTR") located in Arusha, Tanzania. Both ad hoc tribunals were created in response to the extraordinary crimes committed in the former Yugoslavia as well as the genocide in Rwanda.[8]

Later, in 1998, the International Criminal Court ("ICC") was established under the 1998 Rome Statute. The ICC is the only permanent international criminal court and serves to eliminate impunity and realize international justice.[9]

The presence of the above international criminal courts, whether ad hoc or permanent, shows to all humanity that there are certain criminal acts or crimes that violate the law and morals, shock the human conscience, and threaten world peace and security. Thus, the perpetrators should not be left untouched by the law at all. Thus, international criminal law was born to restore respect for the rule of law that had been destroyed.[10]

In essence, the ICC is a form of realization and desire of the international community to find solutions so that respect and enforcement of international criminal law can be effective in the midst of the existence of a climate of impunity due to the failure of national enforcement mechanisms. Literally, impunity is defined as "freedom from punishment, harm, or loss".[11]

Elements of International Crimes

According to Cassese, international crimes are born from the fulfillment of four elements, namely:[12]

1. There is a violation of a rule of customary international law arising from or recognized by an international treaty;
2. The rules aim to protect values that are important to the international community as a whole so that all countries and individuals are bound by these rules;
3. There is a universal interest in combating the crime, and the occurrence of the crime is sufficient grounds for all states to prosecute and prosecute the perpetrator (principle of universal jurisdiction);
4. There is no functional immunity enjoyed by perpetrators who are agents of the state, either de jure or de facto from the criminal jurisdiction of foreign states.

According to Cassese, international crimes are violations of international provisions that require individual accountability of the individuals concerned.[13]

Principles of International Criminal Law

As a discipline that is a combination of criminal law and international law, the principles in international criminal law also carry the principles of the previous legal discipline.[14]

The 5 principles of international criminal law derived from criminal law are as follows.

1. Nullum delictum nulla poena sine praevia lege poenale, namely no offenses, no punishment without prior threatening regulation. This principle is known as the principle of legality.[15]
2. Non-retroactive, i.e. laws and regulations may not apply retroactively.[16]
3. The principle of fault, which is a person's actions that result in a criminal offense. Fault can be interpreted as a mental connection between the act and the result, namely intentionality and negligence or culpa. Meanwhile, there is also fault in the sense of the existence of exceptions that result in actions that cannot be blamed (justification and excuse).[17]
4. The principle of presumption of innocence, which means that a person suspected of committing a crime is considered innocent until his actions can be proven based on a court decision with permanent legal force (inkracht).[18]
5. The principle of ne bis in idem, which means that a person cannot be prosecuted more than once before the court for the same case. This principle is also known as the principle of double jeopardy.[19]

The five principles of international criminal law derived from international law are as follows:

1. The principle of independence, sovereignty, and equality of states, namely that every independent and sovereign state has an equal position with other states. According to this principle, independent and sovereign states must maintain and respect the sovereignty of other states.[20]
2. The principle of non-intervention, in which a state may not interfere in the internal affairs of another state, unless that state consents.[21]
3. The principle of peaceful coexistence, namely if there is a state dispute, it is resolved in a peaceful manner through international treaties.[22]
4. The principle of respect and protection of human rights, which is this principle leads to the obligation for states in the international scope to respect and protect human rights in any situation and condition.[23]

In conclusion, international criminal law is a science derived from two disciplines, namely criminal law and international law. In short, international criminal law or international criminal law is a set of legal rules and principles governing international crimes.

International criminal law itself was formed due to the response of the international community to realize international justice through the establishment of the Nuremberg International Military Tribunal, Tokyo International Military Tribunal, ICTY, ICTR, and ICC. As a discipline that is a combination of criminal law and international law, the principles in international criminal law also come from both legal sciences, such as the principles of legality, non-retroactive, non-intervention, and others.

These are the answers we can provide, we hope you will find them useful.

Legal Basis:

Rome Statute of the International Criminal Court 1998.

Reference:

1. Bambang Poernomo. Asas-Asas Hukum Pidana. Jakarta: Ghalia Indonesia, 1994;
2. Diajeng Wulan Christianti. Hukum Pidana Internasional. Jakarta: Sinar Grafika, 2021;
3. Eddy Omar Sharif Hiariej. Pengantar Hukum Pidana Internasional. Jakarta: Erlangga, 2009;
4. I Wayan Parthiana. Hukum Pidana Internasional. Bandung: CV Yrama Widya, 2015;
5. Romli Atmasasmita. Pengantar Hukum Pidana Internasional. Bandung: PT Refika Aditama, 2016;
6. Tolib Effendi. Hukum Pidana Internasional. Yogyakarta: Penerbit Pustaka Yustisia, 2014.

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[1] Tolib Effendi. Hukum Pidana Internasional. Yogyakarta: Penerbit Pustaka Yustisia, 2014, p. 26.

[2] Tolib Effendi. Hukum Pidana Internasional. Yogyakarta: Penerbit Pustaka Yustisia, 2014, p. 27.

[3] Tolib Effendi. Hukum Pidana Internasional. Yogyakarta: Penerbit Pustaka Yustisia, 2014, p. 27.

[4] Tolib Effendi. Hukum Pidana Internasional. Yogyakarta: Penerbit Pustaka Yustisia, 2014, p. 38.

[5] Tolib Effendi. Hukum Pidana Internasional. Yogyakarta: Penerbit Pustaka Yustisia, 2014, p. 38.

[6] Romli Atmasasmita. Pengantar Hukum Pidana Internasional. Bandung: PT Refika Aditama, 2016, p. 20.

[7] I Wayan Parthiana. Hukum Pidana Internasional. Bandung: CV Yrama Widya, 2015, p. 39.

[8] Diajeng Wulan Christianti. Hukum Pidana Internasional. Jakarta: Sinar Grafika, 2021, p. 3.

[9] Diajeng Wulan Christianti. Hukum Pidana Internasional. Jakarta: Sinar Grafika, 2021, p. 3.

[10] Diajeng Wulan Christianti. Hukum Pidana Internasional. Jakarta: Sinar Grafika, 2021, p. 4.

[11] Diajeng Wulan Christianti. Hukum Pidana Internasional. Jakarta: Sinar Grafika, 2021, p. 5.

[12] Tolib Effendi. Hukum Pidana Internasional. Yogyakarta: Penerbit Pustaka Yustisia, 2014, p. 58.

[13] Tolib Effendi. Hukum Pidana Internasional. Yogyakarta: Penerbit Pustaka Yustisia, 2014, p. 58.

[14] Tolib Effendi. Hukum Pidana Internasional. Yogyakarta: Penerbit Pustaka Yustisia, 2014, p. 41.

[15] Bambang Poernomo. Asas-Asas Hukum Pidana. Jakarta: Ghalia Indonesia, 1994, p. 68. 

[16] Tolib Effendi. Hukum Pidana Internasional. Yogyakarta: Penerbit Pustaka Yustisia, 2014, p. 44.

[17] Tolib Effendi. Hukum Pidana Internasional. Yogyakarta: Penerbit Pustaka Yustisia, 2014, p. 46.

[18] Tolib Effendi. Hukum Pidana Internasional. Yogyakarta: Penerbit Pustaka Yustisia, 2014, p. 46.

[19] Eddy Omar Sharif Hiariej. Pengantar Hukum Pidana Internasional. Jakarta: Erlangga, 2009, p. 38.

[20] Tolib Effendi. Hukum Pidana Internasional. Yogyakarta: Penerbit Pustaka Yustisia, 2014, pp. 48-49.

[21] Tolib Effendi. Hukum Pidana Internasional. Yogyakarta: Penerbit Pustaka Yustisia, 2014, p. 49.

[22] Tolib Effendi. Hukum Pidana Internasional. Yogyakarta: Penerbit Pustaka Yustisia, 2014, p. 49.

[23] Tolib Effendi. Hukum Pidana Internasional. Yogyakarta: Penerbit Pustaka Yustisia, 2014, p. 50.