An Inquiry Into The Justification Of Impunity In International Criminal Law

The world today has been far from the war era, but around the world, large-scale violations of human rights or international criminal law has not been eradicated. And because the international justice system's authority has been questioned, international community's stand is not positive enough, the judicial resources are limited, and the need to balance political and economic benefits, many of these violations of international law cannot be brought to trial, or after a trial penalties have been removed from the actors for various reasons. Currently, this phenomenon, which is known as "impunity", is very concerned about by the international criminal law and human rights law realm. For this phenomenon, domestic research is relatively rare. Therefore, the main body of this article introduces this concept, and focus on their rationality through four parts.The first chapter is the definition of the concept of impunity, and a brief introduction from historical perspective about it. The concept of impunity often appears in the western scholars'protection of human rights-related articles. It is different among its arises whether the perpetrators of international crimes cannot be punished for the lack of appropriate punishment mechanism, or the authorized institutions decide that they don't need to take measures. Through analysis of the occurrence of the concept, author will define impunity as the lack of trials and punishment mechanism on international or domestic level, which make some perpetrators who seriously breach international criminal law and human rights law not be tried and punished. This part also introduces the reasons of the phenomenon of impunity from a historical perspective. With the undergoing dramatic change of worldwide political and human rights situation, the emergence of some forces bring about a series change of attitude on the phenomenon of impunity.The second chapter describes the current western scholars'main ideas on the issue of impunity and the tendency of the United Nations on it. Most Western scholars insisted that for various reasons the phenomenon of impunity is unreasonable and we should make every effort to eradicate it. And some scholars have pointed out a deeper theoretical basis against impunity, which is natural rights theory and social contract theory. They believe human rights are natural rights that any human rights violations are violations of natural law, thus should be subject to sanctions. The state is that people enter into social contract by transferring part of their right to form, and which part of the right does not include the basic rights of man as man, that is, human rights, so countries are not eligible for victims to forgive the perpetrators. What the states can do is using the power entrusted by its people to protect these people. Influenced by western scholars, the UN Security Council and the Commission on Human Rights also has opposed on impunity and view fighting against it as one of the goals of their own work. The United Nations Committee on Human Rights also adopted Human Rights Resolution No. 2005/81, issuing a lot of guidance for impunity, which confirmed the attitude of the Commission on Human Rights.Chapter Three questioned the theoretical basis against impunity. Western scholars'view against impunity is based on natural rights theory and the social contract theory, neither of which is impeccable. Natural rights theory's fatal error is that the theory is out of the plentiful social and practical nature of human beings, and one-sided emphasis on human natural attributes; out of specific social and economic infrastructure and the era, cultural background, abstractly summarize the essence of human beings. Through analysis, I believe that basic human rights are created by a set of social progress, rather than talent. The fact is our social contract can not be found back in history to support the theory of social reality scenarios, and it is not withstand the test of history and the concept of logical reasoning. So, with these two theories against impunity as the theoretical basis is clearly unconvincing.The fourth chapter is the part of the article's argument, analysis of impunity's reasonability. First of all, from the perspective of the essence of human rights, human rights are the correspondence of social resources and people's internal needs. Human rights live in the soil of people's internal needs, and the available community resources determine the degree of development of human rights. Provided with the complexity of the international human rights and cultural differences among different areas, ideas, political and economic development, human rights development certainly have different measures, privileged arrangements, and pay attention to different key points. According to the different parts of the human rights situation, different resources society can provide, and different basic needs of local people to deal with human rights issues is consistent with real protection aim of human rights, rather than blindly to pursue punishment for human rights violations. This is one reason of the phenomenon of impunity's justification existence. Secondly, the controller of social resources can choose a more favorable strategy for the community as a whole when necessary. Concerning human rights, the government should do its best to maximize both to protect the rights of members of their community, but also a rational measure to what extent such protection can be achieved for the overall interest of the community. This measure often results in sacrificing of the interests of some community members, even opposite to the majority of members. A government dealing with violations of human rights, even when facing competent authorities such as the International Criminal Court's pressure, should analyze the country's current situation, and choose the most favorable strategy for society as a whole, rather than blindly act as human rights advocate. From this perspective, impunity is the rational choice of the social resources'controller, and should be understood and supported. Then, the mechanism to put an end to impunity phenomenon known as full responsibility has obstacles which are there to support the rationality of this phenomenon. Full responsibility has very real, serious, and chronic obstacles: First, political constraints limit the level of responsibility. Second, resources required to achieve full responsibility are usually not obtained. Third, national and international level lack intense desire of full responsibility state. Fourth, at the international level, states with strong powers have the ability to control the charge according to their degree of willingness. For these obstacles of the full responsibility mechanism, to deal with international crimes and serious violations of human rights, national and international institutions are not standing still, they tried several ways to overcome these obstacles, but can only reach a compromise state which can not avoid the phenomenon of impunity. Finally, the blind pursuit of the punishment on perpetrators of human rights violations is backward and dangerous. Contemporary international criminal law should focus on education and reform instead of retaliatory punishment. In order to protect human rights better, we should pay attention to the construction of post-conflict society, and repair damage caused by the conflict instead of retaliation. In this sense, impunity on some of the offenders is a relief of danger caused from the blind pursuit of punishment on the perpetrators of human rights violations, and it is a more favorable choice to restore post-conflict societies.In the conclusion part of the article, concluded summary has been processed through analysis. As a relief valve, impunity in post-conflict societies can ease social conflicts, as well as conducive to post-war rehabilitation and reconstruction of society. It could make contribution for the protection of more important interests, thus the existence and continue of impunity is reasonable in nature.