Construction Of The Ideal International Criminal Law

Through a long time of development, especially by the baptism of the World Warâ…¡, the international criminal law system has come into being, and it has exerted important functions on the punishment and preventing of crimes. In the latest decades of years, the international society appeared many international criminal conventions, and many new methods of international criminal mutual assistance formed. Some international criminal tribunals exerted and is exerting important functions. The passage of the Statute for International Criminal Court ( Rome Statute ) and the establishment of the permanent international criminal court means the landmark of the development of international criminal law. But we cannot deny that the current international criminal law is not an ideal international criminal law. There are many defects which will impede the full exertion of its function. Based on this cognition, I start to explore the trend of the development of the international criminal law, and try to find out how to impel the trend to turn into reality.The construction of ideal international need to make clear the contents and characters of international criminal law. Only to know what the international criminal law is, we can table pertinent proposals of the development of international criminal law. And the construction of the ideal international criminal law is necessary only when we prove the characters of international criminal law. So, I firstly researched the sources of international criminal law. International criminal law includes international treaties, international customs, the resolutions of international organizations, the common principles of laws and the international aspects of national criminal law. By analyzing the composition of the word"international criminal law", we believe that the international criminal law is actual"law", it is"criminal law", and it has the character of"internationalism". Only when we consent these characters, we can confirm the contents of the ideal international criminal law and establish the basement of the construction.After making sure the contents and characters of the international criminal law, I summarized the status quo of the legislation and judicature of the international criminal law. On one hand, I coordinated the international criminal law system, and on the other hand, I surveyed the implement of the international criminal law. After analyzing the status quo, I think that the legislation exists some disadvantages. The political factors affected the legislation, the articles of international criminal are not definite, the embodiment of the authorities are not sufficient, and the nations disregard the international criminal law. The international criminal trials also exist some shortages. The trials of the Military Tribunal for Far East and the Military Tribunal for Nuremberg invoked the law which made after the crimes. Some scholars, especially Japanese scholars considered it violated the principle of legality. And the persons who were punished did not include the persons who were the victors and actually committed the same international crimes. So, it was a half-baked justice. The international criminal tribunals for former Yugoslavia and for Rwanda are exerting functions in the international society. But some scholars criticized their inefficient judgments. There are also many problems in the permanent international criminal court which established in 2002. It lacks the independence and compulsion. The scope of jurisdiction is limit. The indirect implement of international criminal law was criticized for some reasons. The nations punish the perpetrators of international crimes through the national court will be different and instability. Even they will not be punished for political reasons. The international mutual assistance in criminal matters will be difficult for some restrict. And it will cause many crimes to fail to be punished. These defects mean that the international criminal law need to development further.Just because there are so many shortages of international criminal law, we need to consider the reconstruction or farther development of it. In current international society, such reconstruction or development is feasible, since the interdependent international society has already come into being and reality needs the development of international criminal law as well as the cooperation of different countries to punish the increasingly internationalized crimes. The globalization results in many global issues including international crimes which need to be resolved with international criminal law. And the globalization of law inevitably results in the farther development of international criminal law, consequently, international criminal law with universal applicability will come into being in the entire international society. The primary effect of cooperation on punishing and preventing crimes between countries shows us a practical foundation of the ideal international criminal law, while the reality of the internationalization of crimes cries for the ideal international criminal law. The idea of maintaining orders and protecting human rights directs the international criminal law to develop and gain its modern meaning. The amalgamation of different legal systems and different countries shows that the ideal international criminal law is coming into being.We must take into account the reality of international society when constructing the ideal international criminal law or it will not make any sense. The construction of ideal international criminal law should be based on the idea of seeking common points while reserving difference, that is to say, countries should constitute and apply international criminal law under that idea since countries are the subjects of international society and will keep the leading status in quite a long time. The idea of protecting human rights and the need of punishing and preventing crimes promote the criminal laws to develop into an identical one and hence turn into the main contents of ideal international criminal law. In modern society, the only way to seek common points is negotiation and the content of seeking common points can only be the notion of cooperation on protecting human rights and punishing crimes. Yet there is a bound of seeking common points since the existing of sovereignty, and any system can't achieve a state of absolute consistency. We should respect the domestic standards of different countries.Under the premise of seeking common points while reserving difference, we must emphasize the important status of countries in the constructing of ideal international criminal law. So, the internationalization of criminal law is the approach to construct the international criminal law, that is to say, only through the amalgamation of criminal laws of different countries and the mutual influence of international criminal law and the domestic criminal laws, can the ideal international criminal law come into being. The internationalization of criminal law includes the internationalization of the notions of criminal law, the internationalization of the principles of criminal law and the internationalization of the systems of criminal law. The three aspects mentioned above also represent the trend of development of domestic criminal laws. Those notions, principles and systems are internationalized into an important part of international criminal law and hence can instruct the domestic legislation on criminal laws, while international criminal law gains developments in that process.Through the approach of the internationalization of criminal law, different nations will form some common grounds for basic problems. And these common grounds are the contents of ideal international criminal law. The international criminal conventions which apply in the whole international society shall be passed for the consensus of all the nations. The nations can commit the international crimes and shall burden the responsibility for their actions. The modes of the criminal responsibility for international crimes include crucifixions and other measures. Stopping the illegal actions, apologizing for the actions, rehabilitations, international economic limitations, restraining the sovereignty and so on can be considered as the modes for burdening the international criminal responsibilities. Some measures should be taken to perfect the international criminal court. It should be endowed more compelling powers. Its scope of jurisdiction shall be enlarged. The affections by the states and other international organizations should be canceled step by step. The handicaps of the international mutual assistance in criminal matters should be eliminated. For example, the political offences should be restricted in narrow areas in the extradition. Only the pure political offences should be the reason for refusing extradition. The states should abandon the reason of refusing the extradition for the perpetrators are their civics for the widespread human rights idea. When all the countries of the word abolish the death penalty, the reason of refusing the extradition for the death penalty will disappear. In current circumstances, the states who abolish the death penalty should respect the nations who did not do so, and the nations who hold the death penalty should promise they will not apply the capital punishment for the perpetrators. The perpetrators being extradited back for punishment is important for the national justice. For other international mutual assistance, the nations should desalt the consciousness of sovereignty and should eliminate the obstacles under the need for punishing the crimes and the idea of protection of the human rights.