International Criminal Law: Principles, Sovereignty, and Development

This essay provides a comprehensive overview of International Criminal Law, examining its core principles, including the definitions of international crimes, the significance of Actus Reus and Mens Rea, and the role of strict liability. It explores the relationship between international criminal law and state sovereignty, analyzing the challenges and interplay between these concepts. The essay assesses whether the development of international criminal law has ruptured traditional understandings of state sovereignty, and considers whether the expansion of international law has led to a changing definition of sovereignty. It also discusses the objectives of criminal law, the defenses available, and the implications of international crimes, concluding that the evolution of international law has significantly impacted the balance of power and authority in the international arena. This essay is a valuable resource for students seeking to understand the complexities of international criminal law.

International Criminal
Law

Contents
INTRODUCTION...........................................................................................................................1
MAIN BODY..................................................................................................................................1
CONCLUSION................................................................................................................................6
REFERENCES................................................................................................................................7

INTRODUCTION
In today’s modern era, law is treated as a vital part for effective regulation of behaviour
of society and its people. There are distinctive parts of laws and legislations which can be
bifurcated into its several parts. These can be either business, corporation, criminal or civil law.
So, considering this, this present assignment mainly focuses on detailed explanation of
International criminal law and assessment of its distinctive principles 1. This report also
considers an interconnection in between International criminal law and traditional aspects of
state sovereignty. Also, in this report, argument in regard to whether development of
international criminal law has ruptured traditional understanding in an international trading
system, will be done. Moreover, assessment will be performed if there is a relationship in
between the above said too, then is it a positive development or not.
MAIN BODY
International criminal law is that aspect of a public international which has been in a
situation to deal with criminal responsibility of a person or an individual for commitment of
international crimes. However, there is no specific definition of international crime. It can also
be noted that there is a difference in between international crimes which are established on law
of international customary, which are applicable universally and those crimes which resulted
from particular specified treaties 2. Criminal law is a part of law, which defines rules and
regulations on the basis of crime committed. Likewise, in the case of Gammon (Hong Kong) Ltd
v Attorney-General of Hong Kong [1985] AC 1, it was held by court that the offence comprised
of strict liability, so belief of appellant was not relevant and his conviction was liable to upheld.
In addition to this, it has also been evaluated that criminal law is that body of byelaws which has
its connection with “crime”. There are certain acts which can be classified as crime. These can be
elaborated as threatening, causing harm, or otherwise endangering some one’s property, safety as
well as health too. It can be noted that most of the criminal law is instituted by an act of statute,
1 Andia, T., 2014. Pharmaceutical Intellectual Property Rights Protection and Access to
Medicines in Ecuador–State Sovereignty and Transnational Advocacy
Networks. Balancing Wealth and Health–the Battle for Intellectual Property and Access
to Medicine in Latin America, edited by R. Dreyfuss and C. Rodriguez-Guaravito,
pp.195-221.
2 Cassese, A. and Gaeta, P., 2013. Cassese's international criminal law. Oxford university
press.
1

or in simpler words, criminal law consists of those laws which are enacted by legislature.
Moreover, the decided case law of Ilich v R [1987] HCA 1; (1987) 162 CLR 110 (3 February
1987), by High Court of Australia is another landmark case in aspect of Criminal legislation.
Also, punishment is sentenced to those people who are not able to comply with or violate
rules and regulations of Criminal law 3. In other words, criminal law prohibits commitment of
any acts which arises due to serious crime or its consequences due to failure to comply with rules
and norms. In addition to this, it can also be said that every crime that has been committed within
an arena, comprises of criminal elements.
Furthermore, there are five objectives that has been framed with a view point to enforce
criminal law by punishments. These can be demonstrated as following;
Retribution: In this, it has been required that criminals have to be castigated in some way. It
can be seen as the most extensively seen objective. In accordance with the provisions of criminal
law, if criminals take improper and undue advantage as well as treat others in an unfair manner,
then, these said criminals will be putted down in the category of unpleasant disadvantage to
“balance the scales”.
Deterrence: Individual deterrence is emphasised upon a definite offender. The main
objective is to execute an adequate amount of penalty to discourage the criminal from its
behaviour.
Incapacitation: It has been designed simply to keep guilty minded people as well as
criminals away from societal people so, that society can be protected from their acts of
misconducts 4. Life time prison and death sentences can be seen as the methods; through which
they can remain away from society a large.
Rehabilitation: It focuses on to converting an offender into a respectable and valuable
member of society. Its main issue is to prohibit further commitment of any offence, by
convincing a criminal that their offence was wrong and not legal in terms of law and legislation.
Restoration: It can be considered as a theory of victim based punishment. The main
objective of this is to repair with the help of state authority any injury or harm imposed upon
victim by a criminal.
3 Currie, R.J., 2010. International and transnational criminal law. Irwin Law.
4 Duff, A., 2010. Authority and responsibility in international criminal law.
2

It can also be noted that there are various elements of criminal law. It is an act which
basically prohibits acts and activities which are not desirable in nature. Also, to prove an act as a
criminal act, a proof is required. So, there are distinctive elements which comprises criminal law,
that can be demonstrated as follows
Actus Reus: This is a Latin term, which mean guilt act. Also, in this light, it can be
defined as a physical element of performing a crime. It can be attained with the help of an act, by
a threat of an action as well as by an omission of a particular act, which is required to be
performed 5. For an example, if A has a guilt mind to hit B, then, that act will be considered as a
Actus Reus. While on one hand, the term Actus Reus is a term which depicts failure to perform
any act, on other hand, there must also be an evolution of duty of care. Beside this, an act of
Actus Reus can be terminated without presence of causation of an act. In accordance with the
decided case law of “R v Larsonneur (1933) 24 Cr App R 74”, it was held by court that
defendant is not liable to any punishment as she did not come to England voluntarily.
Mens Rea: Mens Rea literally means guilty mind. In accordance with the provisions of
Criminal law, mens rea is concerned with the state of mind of defendant. It is a notable fact that
most of the crimes requires proof of guilt mind. Also, there are three levels of mens rea, which
can be classified as intention, negligence and recklessness. As per the case law of R v
“Moloney [1985] AC 905 House of Lords”, itt was held by court that conviction of defendant in
regard to murder committed by him was replaced for manslaughter. Also, the case was niot
considered as an oblique intent 6. Also, intention in mens rea is treated as the most important
element. It entails the highest amount of faults among all three levels of mens rea. It is just due to
reason as it involves an intention to commit a crime which can be considered as more
responsible.
Strict liability: These crimes can be well defined as those wrong doings, in which there
is no requirement of proof of Mens rea in association of more than one aspects of Actus Reus.
Basically Strict liability mostly arises in context of an organization in context of safety and
health at work. As per the decided case law of “Sweet v Parsley [1970] AC 132 House of Lords”
5 Francis, L.P. and Francis, J.G., 2010. Stateless crimes, legitimacy, and international criminal
law: The case of organ trafficking. Criminal Law and Philosophy, 4(3), pp.283-295
6 Greenberg, J., 2011. On the road to normal: Negotiating agency and state sovereignty in
postsocialist Serbia. American Anthropologist, 113(1), pp.88-100.
3

court held decision after going through common laws and legislations prior to the time of
formation of statute. In context of application of strict liability, controversy is created as it means
that people is liable even if they are not at fault 7.
Nonetheless, there are certain elements of criminal law which defines a state of mind of a
particular person, there are some defences which are also available. In regard to law of crime,
there are different terms and conditions which tend to negate components of crime, which is
known as defences. These can be characterised as mental disorder, automatism, intoxication.,
mistake of fact etc8.
In this light, sovereignty of state is a concept which demonstrates a situation and ability
of a specified state to be independent as well as to have an effective control and autonomy over
itself and its decisions. In other means, it means an ability of a state to frame their own rules and
regulations, which are in contrast with those of its government. Nowadays, states of a country are
applying principle of Sovereignty, which means separate, however equal. In simple words, if one
state is sovereign, then principles and provisions of other state are not applicable on them.
Considering this, there is a great relationship and interplay in between International
criminal law and sovereignty of state. Also, it has been seen by various lawyers of International
crime that sovereignty is an enemy of international criminal law. In addition to this, it can also be
analysed that there are some challenges consisted by criminal law to sovereignty. In other words,
it is a noticeable fact that relationship in between international criminal law and state sovereignty
is not so easy and complex in nature. In aspect of an assessment of international criminal law and
state sovereignty, it can be stated that there two views of sovereignty. The first view is that
sovereignty can be treated as a pre-legal term. On the other hand, it can be defined as a more
flexible content. Also, in accordance with the view point, sovereignty can be well-defined as a
concept, which has an ability to adjust with a developing nature of International law of crime. In
this light, in accordance with the provisions of International criminal law, it can be further noted
that in aspect of Rome treaty negotiation, which has evolved a resolution, which is having a
potential to intensely convert the background of international law.
Afterwards, there is a threat to sovereignty by international criminal law. As it is already
stated that there is a clear relationship among international law of criminal and state sovereignty,
7 Guilfoyle, D., 2016. International Criminal Law. Oxford University Press.
8 Hay, C. and Marsh, D. eds., 2016. Demystifying globalization. Springer.
4

which is often misunderstood many a times. Also, it can also lay down a fact that there should be
an acceptance with a fact that state sovereignty is affected by International criminal law by
restricting behaviour which is not in an arena of law 9. Also acts of peace and security of people
are not the concerns of a particular state alone. However, it has been evaluated that sovereignty is
a notion which challenges which adapts dynamic nature of development and growth of
International law.
Nevertheless, the anticipation of International crimes cannot happen devoid of
sovereignty. Also, there were great implications and instances of violation of international
criminal law. So, the state and its powers are entitled with a specific role to protect people from
different crimes. Also, it can be said that expansion of international law has led to changing
definition of sovereignty incorporating the reality that in many areas or arenas legal authority of
state over external and internal affairs are transmitted to the community as a whole. It can be
noted that concept namely Westphalian sovereignty restricts distribution of powers to an outside
authority 10. Also, it has been evaluated that such perception of state sovereignty is in conflicts
with continuing stages of development of establishment of international codes and organizations.
This imposes responsibilities and obligation on the parties to accept and fulfil their rules or
decisions, which can be signified as a vital precondition in regard to their membership.
Also, it can be signified that expansion of International criminal law has eroded the old-
style understanding of an international system based on the sovereignty of States. It can be noted
that in today’s modern era, new sovereignty has been evolved, which can be well elaborated as a
capacity and ability of a state to take participation in terms of international and trans
governmental regimes framework and institution that have become part and parcel of
international interactions. It can also be noticed that a presence of association of body of law
which is based on the provision of the independence of states has been legitimised and
institutionalized an existence of forms of politics.
In context of international law of crime, it can be evaluated that consent of all people of a
state can be considered as a foundation of validity in terms of sovereign power. In addition to
this, concept namely universal jurisdiction has got its jurisdiction and legal validity frames each
9 Irons, J., 2010. Reconstituting whiteness: The Mississippi state sovereignty commission.
Vanderbilt University Press.
10 Jeffrey, A., 2012. The improvised state: Sovereignty, performance and agency in Dayton
Bosnia. John Wiley & Sons.
5

and every aspect of different actions of sovereign in against of its people who themselves have
created a hierarchy for sovereign to achieve topmost rung 11. Furthermore, there is an
interference of International law in a wide spectrum of domestic jurisdiction for violation of
perception of sovereignty and its ground of legitimacy and authority, which was associated with
their subject mind.
It is a notable fact that there are various principles of International Criminal law, which
has been described under part 3 of Rome Statute 12. It can also be assessed that Part 3 comprises
of certain fundamental rights of the person accused, confiscates juveniles from the purview of
court’s jurisdiction. Along with this, it also rejects certain fortifications. In addition to this Part 3
not only emphasises on to the norms and regulations of principle of criminal labiality of an
individual, but also set out different ways through which a person can be held for a crime
committed under the statute and also enable description of different aspects of accomplice
liability 13. Moreover, in accordance worth the article 30, it has been elaborated by Rome statute
that mental element must be there before an accused can be held liable in criminal aspects.
Also, there are three general requirements which are required to be there for an
assessment of criminal liability:
Conduct of a specific kind or sometimes an omission of an act. In addition to this, there
should be a particular context. Along with this, there is also a requirement of a specific mental
element.
It can also be noted that interplay in between International criminal law and state
sovereignty occurs not only in terms of procedural contexts of law of crime, but also it exists in
substantive law of international crime 14. Also, this supports sovereignty of a state. It can also be
noted that state sovereignty and international law of crime can be considered as a two facets of a
coin. But they are minted to express different languages to different constituencies, which often
lead to conceptual decision. Also, overriding of the principles of the International criminal law
11 O'keefe, R., 2015. International criminal law. OUP Oxford
12 General principles of international criminal law, 2017
13 van Sliedregt, E., 2010. International Criminal Law. In The Oxford Handbook of
Criminal Law.
14 Shaver, D. and Pacella, M.C., 2010. International Criminal Law. The International
Lawyer, pp.143-153.
6

other traditional system of state of sovereignty is considered as a positive development. It is just
due to reason that there are several aspects which have developed in context of criminal law.
CONCLUSION
From the above mentioned essay, it can be concluded that criminal law is a part of law
and legislation, which is associated with any commitment of crime. In this report, various aspects
of international criminal law and state sovereignty has been discussed. Also, there are different
principles and requirements which are there for the effective conduction and application of the
criminal law. In addition to this, different elements of criminal law have also been demonstrated
in a detailed manner. Furthermore, this report also deliberates an extensive connection and
interplay among International criminal law and state sovereignty.
REFERENCES
Books and Journal
Andia, T., 2014. Pharmaceutical Intellectual Property Rights Protection and Access to Medicines
in Ecuador–State Sovereignty and Transnational Advocacy Networks. Balancing Wealth
and Health–the Battle for Intellectual Property and Access to Medicine in Latin America,
edited by R. Dreyfuss and C. Rodriguez-Guaravito, pp.195-221.
Cassese, A. and Gaeta, P., 2013. Cassese's international criminal law. Oxford university press.
Currie, R.J., 2010. International and transnational criminal law. Irwin Law.
Duff, A., 2010. Authority and responsibility in international criminal law.
Francis, L.P. and Francis, J.G., 2010. Stateless crimes, legitimacy, and international criminal
law: The case of organ trafficking. Criminal Law and Philosophy, 4(3), pp.283-295.
7

Greenberg, J., 2011. On the road to normal: Negotiating agency and state sovereignty in
postsocialist Serbia. American Anthropologist, 113(1), pp.88-100.
Guilfoyle, D., 2016. International Criminal Law. Oxford University Press.
Hay, C. and Marsh, D. eds., 2016. Demystifying globalization. Springer.
Irons, J., 2010. Reconstituting whiteness: The Mississippi state sovereignty commission.
Vanderbilt University Press.
Jeffrey, A., 2012. The improvised state: Sovereignty, performance and agency in Dayton Bosnia.
John Wiley & Sons.
O'keefe, R., 2015. International criminal law. OUP Oxford.
Shaver, D. and Pacella, M.C., 2010. International Criminal Law. The International Lawyer,
pp.143-153.
van Sliedregt, E., 2010. International Criminal Law. In The Oxford Handbook of Criminal Law.
Online
General principles of international criminal law, 2017. [PDF]. Available through: <
https://issafrica.s3.amazonaws.com/site/uploads/AGCHAP6.PDF>. [Accessed on 22nd
August, 2017].
8