Administering International Criminal Justice

A Study on the Scope of the National Judiciary

The Arab Center for Research and Policy Studies has published Administering International Criminal Justice: A Study on the Scope of the National Judiciary by Mohammed Adnan Ali Zeber (376 pp.).

“International criminal justice is usually not absolute” because it has often been unable to carry out humanitarian ambitions, do right by the disempowered, provide reparations to victims, and punish the perpetrators of international crimes. National and international law, however, still contributes to the administration of this justice when the opportunity presents itself and humanitarian ambitions have their way. Much of the legal literature has been preoccupied with researching and discussing the role of the international judiciary in and of itself in administering criminal justice, to such an extent that the concept of international criminal law being inseparable from the international judiciary has come to the fore and strongly impacted the concept of justice. The literature has also neglected, or overlooked, the study of the national judiciary’s role in the matter. Therefore, this study attempts to reformulate the concept of justice by defining it, enumerating its characteristics, examining its personal and objective scopes, and emphasising the role of the national judiciary in implementing and reinforcing this justice.

International criminal justice, the author argues, cannot be administered unless its components are present and there is a specialised judiciary based on its legal organisation and implementation. Yet the necessity that these components exist, as well as the inevitable overlap and reciprocal influence of law, judiciary, and justice, does not entail integration to the point of fusion and the disappearance of one component as an independent entity in the absence of one of its counterparts. Moreover, the absence of the judiciary does not imply the absence of a prevailing concept of justice in the minds of the people, even if “international” lawmakers disregard its implementation through binding legal rules for a period of time and set it aside for the judiciary concerned with its implementation – even though the reactions of individuals in society and their disapproval as a result of lawmakers’ failure to accommodate the new, widespread legal concept of justice will sooner or later compel them to make such an accommodation.

The author distinguishes between the emergence and de facto presence of international criminal justice on one hand and the concept on the other, as the idea preceded the enacting of particular laws on the matter. Furthermore, legal scholarship indicates that international criminal justice is not a modern invention; rather, human civilisations have contributed over time to laying its groundwork and imbuing it with a humanistic character until, eventually, calls emerged to codify its principles. Moreover, the judiciary is not regarded as part of the essence of international criminal law, but as a part of its implementation. Thus, the author argues that the formation of a legal basis for this field of law preceded the establishment of a dedicated international judiciary, as embodied by the Nuremberg and Tokyo trials.

Next, Zeber considers how national judiciaries contribute to the implementation of international criminal justice. The UN International Law Commission (ILC) has stipulated that member states must take measures to delineate the jurisdiction of international courts. The author argues that a distinction emerges between all forms of international crime except for crimes of aggression, which fall within the shared jurisdiction of the International Criminal Court and national judiciaries, and crimes of aggression in particular, which are solely within the purview of international bodies.

In demonstrating the importance of the national judiciary in both implementing and strengthening international criminal justice, the premise on which this study is based does not overlook the role of legislative authority in each state, nor of related channels of executive authority, especially judicial, diplomatic, and security, in contributing to the objective of achieving international criminal justice. National judiciaries also reinforce this objective by detaining those suspected of international crimes until they are prosecuted, or by transferring them to international courts or the judiciaries of other states. Their rulings and practises provide the international legal system with the means to close gaps in legislation and produce international agreements, some of which may eventually attain conventional status for the international courts tasked with administering justice.

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