Symposium : The International Criminal Court

• Cassese, A

Abstract

The author appraises the contribution of the International Criminal Court (ICC) to substantive and procedural international criminal law. He portrays it as a revolutionary innovation. Its substantive features include: a definition of crimes falling within its jurisdiction which is more specific than in existing international law; and impressive detail in spelling out general principles of international criminal law such as <it>actus reus, mens rea, nullum crimen</it> and <it>nulla poena</it>, as well as various forms of international criminal responsibility (for commission of crimes, aiding and abetting, etc). Certain of the substantive provisions, however, may be considered retrogressive in the light of existing law. These include: the distinction between international and internal armed conflicts, needlessly perpetuated in Article 8; an insufficient prohibition of the use in armed conflict of modern weapons that cause unnecessary suffering or are inherently indiscriminate; the excessively cautious criminalization of war crimes offences; the omission of recklessness as a culpable state of mind at least for some crimes; and excessive breadth given to the defences of mistake of law, superior order and self-defence. The author considers the ICC's major contribution to be procedural. The Statute has set up a complex judicial body with detailed regulations governing all the stages in the criminal adjudication. The prerequisites to the exercise of jurisdiction, however, depend greatly on the willingness of all states parties concerned in the prosecution to cooperate with the Court. In its present form, the author argues, the Statute is somewhat too deferential to the prerogatives of state sovereignty, a fact which could impair the ICC'S effectiveness.