CRIMINAL JURISPRUDENCE- DEVELOPMENT IN INTERNATIONAL CRIMINAL LAW
This article was written by Prerna Sharma, a student of RMLNLU.
As far as the code of criminal procedure is concerned, wherein a person is found to have committed an offence he is convicted and thus a stigma is attached to him. In respect of some such offences, he is not punished immediately and is allowed to change such a behavior. For some offences, he is sentenced to pay fine, whereas for some of the other such offences where there is a conviction he is being sentenced to substantive imprisonment and for committing such offences he is sentenced to substantive imprisonment whereas, in other cases he is deprived of his life and this is the broad principle of criminal jurisprudence. Where we think on these lines of criminal jurisprudence, one also needs to think of the society to which a person is belonging because the law being based on the behavior of humans is variant from society to society. After all, what is the common goal of this civilization? What is their dignity? What does law prevails around? What we ought not to do so as to avoid the liability? What would the non-discharge of obligations lead to? Answer is the humans and their behavior. Mode of balancing the imbalances is what the law is.[1] The question that whether the action or inaction is wrong and eradication of wrongs are called adjudication. The result of adjudication is justice and this system of justice could be called as jurisprudence. The usage of the term criminal law usually signifies a body of rules and statutes that define the conduct prohibited by the Government as it threatens the public safety and welfare which establishes punishment to be imposed for commission of such acts.[2] The term criminal law generally refers to substantive criminal laws, which define crimes and may establish punishments. In contrast, criminal procedure, describes the process through which the criminal laws are enforced. For instance, the law prohibiting murder is a substantive criminal law, as the penal law only defines such law with imposition of liability.[3]
Crime is the product of interplay of different human emotions as being observed in the case of Kali Ram v. State of Himachal Pradesh[4]. In a criminal trial, accused is presumed to be innocent and this the general rule even in evidence. The sound Latin maxim, Ei incumbit probation qui dicit, non qui negat indicates the burden of proof is on he who asserts, not on he who denies. Even as per Article 11 of Universal Declaration of Human Rights, everyone charged with a penal offence has the right to be presumed innocent until proven guilty according to law in public trial at which he have had all the guarantees necessary for his defense. Basically, there are three cardinal principles of criminal jurisprudence. These are-
- Prosecution to prove its case beyond reasonable doubt
- Accused must be presumed to be innocent
- The onus of prosecution never shifts
The discussion should be focused on the idea of Hindu as well as Muslim criminal jurisprudence wherein, the concept of dharma in Hindu mythology clarified that the term was derived from a root signifying “to sustain” and “to discipline to rule”. Behind this the concept of justice covered the premise that law should be uniform so as to meet fluid situations to sustain the society.[5] The smritis record the percepts for administration of justice. The decision of higher courts prevailed over those of subordinate courts and possibility of perverse judgment was guarded against by insisting that not even a king should give a judgment as established in Naikaki Nirnayam Kuryat[6]. In case of Islamic Criminal Jurisprudence, at the time British started their quest for the strong hold over the then India, Islamic law was foundation of the system of administration of justice. This system was based on the concept of Holy Quran. The edifice was raised further on the basis of rules of conduct.[7]
The International criminal law has developed from various sources. The war, crimes originate from the law and customs of war, which accord certain protections to individuals in armed conflicts. International law typically governs the rights and responsibilities of states[8], criminal law, conversely, is paradigmatically concerned with prohibitions addressed to individuals, violations of which were being subject to penal sanctions by a state.[9] The International Law[10] within the scope and context of criminal law[11] has been duly safeguarding the legitimate interests of the people gradually turning and molding its way for protection.[12] The apt meaning of international criminal law depends upon its usage as there are plethora of meanings that could be attributed. Different meanings of international law have their own utility for their different purposes and there is no utility nor is there any necessary reason to decide upon the meaning as a ‘right’ one.[13] As per Georg Schwarzenberger,[14] An international legal crime he said in reference to the question of status of aggression, presupposes the existence of this law.[15] The protection of values of international order by set of rules enshrined by this law is other more substantive approach to determine its scope, protection and prohibition.[16] The definition of an international crime may be defined as an offence created by the criminal came now in the frequent use in the ambit of criminal law.[17] Occasionally, the sui generis penal system of international criminal tribunals and courts are being described as ‘supranational criminal law’ in the process of development.[18] The development of crimes against humanity and the law of human rights was a penalty inspired by a wish to ensure that the atrocities were not repetitive. The two laws being talked about at a stretch are compatible, although the relationship between the two can be fractious. The aspect of human rights law with a close analogue in a criminal law theory is the prohibition of retroactive criminal prohibitions and penalties (referred as a principle of legality or nullum crimen, nulla poena, sine lege)[19]. In the aim of international criminal justice, there are approaches that justify the punishment, teleological and those that focus on the crime itself i.e. the deontological ones.[20]Although, in practice, most criminal justice systems tend to be defended on the basis of the mixture.[21]
Henceforth, the International Criminal law has developed at an unprecedented rate since the early 1990s. Also, it is largely correct that the catalyst for the revival of the law was by creation of ad hoc tribunals which have been criticized lately, as being expensive as well as bureaucratic in its approach.[22] International Criminal Law is a relatively new discipline and includes more or less the same concept as laid down by the criminal law, yet does not intend to replace for totality of domestic criminal law.[23]
The confusion still remains as to whether it is the path forward or back, wherein in one respect the international criminal law has probably reached the end of the epoch. That arena is the one of ad hoc international tribunals.[24] One of the less explored questions in this context is its effect in the society within the international community of public and law. In particular, what could be the effects of rise of International criminal law apparently on the unrelated aspects of human rights law? And upon the other large systems? An international criminal law has emerged as a visible face and its supplanted or even crowded other aspects.[25]
[1] Retrieved from “Outline of Criminal Jurisprudence” by Justice S.C.Mohapatra (Chairman of Orissa Administrative Tribunal), published in Institute’s journal April-June 1995
[2] Retrieved from http://blackstone-dictionary.thefreedictionary.com/Criminal+Law on December 20, 2016 at 17:14
[3] ibid at 1
[4] 1973 AIR 2773
[5] See T.S.Batra, Criminal law in India (1981), at p.2
[6] A single judge should not decide a case. See S.Varadachariar, The Hindu Judicial System, (1946), at p.64
[7] Principle of Criminal Law in India, Kumar Askand Pandey
[8] See e.g. Robert Jennings and Arthur Watts (eds.), Oppenheim’s International Law (9th edn, London, 1994) 5-7
[9] Glanville Williams, The Definition of Crime (1995) 8 Current Legal Problems 107
[10] See e.g. Timothy L.H.McCormack , “The Evolution of an International Criminal Law Regime”
[11]The Law of war Crimes:National and International Approaches (The Hague, 1997) 31
[12] Tradic ICTY A. Ch. 2.10.1995 para. 97
[13] Yet, the omnibus uses of International Criminal law risk implying that there is a structural unity to what is being referred to , and thus treating very different things as having similarities.
[14] He described six different meanings attributed to the term in “The problem of an International Criminal Law” (1950) 3 Current Legal Problems 263
[15] ibid at 7 in The Judgment of Nuremberg
[16] For discussion in relation to core crimes, See Bruce Broomhall, International Justice and the international Criminal Court: between state Sovereignty and Rule of Law (Oxford 2003) 44-51
[17] International Criminal Court, 9-10; Robert Cryer, Prosecuting International Crimes( Cambridge 2005)
[18] Retrieved from A Supranational Criminal Law:A system sui generis (Antwerp, 2003) on August 2, 2016 at 19:16
[19] See generally, Criminal law: Theory and doctrine (3rd Ed. Oxford 2007) ch 1
[20] Retrieved from “The introduction to theory, justifications and modern manifestations of criminal punishment” (1981-1982) 27 McGill Law Journal 73 on December 22, 2016 at 18:52
[21] Which is acceptable as per, Herbert.L.A.Hart, in Ch. 1 of “Punishment and responsibility” (Oxford, 1968)
[22] Ralph Zacklin in ‘The failings of the ad hoc tribunals’ (2004) 2 JICJ 541 at 542-3
[23] Retrieved from “An introduction to International criminal law and procedure”, by Robert Cryer, Hakan Friman, D.Robinson & Elizabeth Wilmshurst on pg 583-585 on August 2, 2016 at 20:33
[24] Retrieved from http://ejil.oxfordjournals.org/content/20/2/331.full on “The rise of international criminal law: Intended and unintended consequences” by Kenneth Anderson on December 21, 2016 at 21:34
[25] Retrieved from The rise of International Criminal law on 21st December at 20:39 https://www.google.co.in/url?sa=t&rct=j&q=&esrc=s&source=web&cd=2&cad=rja&uact=8&ved=0ahUKEwiNz7aaqLOAhWMO48KHQXFDcMQFgghMAE&url=http%3A%2F%2Fwww.internationalcrimesdatabase.org%2Fupload%2Fdocuments%2F20141002T145950ICD%2520Brief%2520%2520Moran.pdf&usg=AFQjCNGs591Okq7b7qFE_VXotssQ3nBbLw&sig2=RqEFVPAjfdqh6Iz01KeefA
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