The International Criminal Process and the Global Community

• Author: Mohamed Shahabuddeen
• Pages: 153-181

153

The International Criminal Process and the Global Community

Introduction

Integration in the West Indies invites acknowledgement that nations have a

mutual interest in holding fast to the essential links which bind the international

community together. There are several ways in which that may be done; an

emerging one of importance is the international criminal process. The process

began in Europe, but the phenomena with which it is concerned are largely

Third World ones. Though it is well past midnight for the main mechanisms

through which the process is now exerted, it is hoped that this short overview

of the way these mechanisms operate helps our region to appreciate the

process and its implications for a stable and orderly world environment.

Within recent times, the fundamental values which unite mankind have

been violated in Europe – after it was felt that the saddest events of World

War II could not happen again. In consequence, there has had to be set up the

International Criminal Tribunal for the former Yugoslavia (ICTY). Violations

have also occurred elsewhere. The International Criminal Tribunal has been

established for Rwanda (ICTR). Internationally appointed judges have also

been included in the mixed panels established in 2000 under the general

authority of the United Nations Interim Administration Mission in Kosovo;

in the Serious Criminal Offences Panels (SCOPET) established in 2000 by

the United Nations Transitional Administration in East Timor; and in the

Special Court for Sierra Leone (SCSL) established in 2002. Internationally

appointed judges are also to be included in the proposed Extraordinary

Chambers in the Courts of Cambodia (ECCC). The example of the ICTY has

THE INTERNATIONAL CRIMINAL

PROCESS AND THE GLOBAL

COMMUNITY

Mohamed Shahabuddeen1

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154 CARICOM: Appropriate Adaptation to a Changing Global Environment

quickened the pace of developments leading to the adoption, in 1998, of the

Statute of the International Criminal Court (ICC). Some of these courts are

hybrid arrangements, including both internationally appointed judges and

domestic judges. The ICTY, the ICTR and the ICC consist entirely of

internationally appointed judges.

The need for respect for international criminal law

The need for respect for international criminal law is demonstrated by

recent events in the territory of the former Yugoslavia. But of course the

problem goes back further. The situation in that country brings to mind

reflections on an older conflict which arose on the western side of the larger

Balkan area. As Thucydides described it, a “breakdown of law and order”

occurred. There “were savage and pitiless actions into which men were carried

not so much for the sake of gain as because they were swept away into an

internecine struggle by their ungovernable passions.” The turmoil saw “the

ordinary conventions of civilized life thrown into confusion.” The celebrated

writer added:

[Men took] it upon themselves to begin the process of repealing

those general laws of humanity which are there to give hope of

salvation to all who are in distress, instead of leaving those laws in

existence, remembering that there may come a time when they, too,

will be in danger and will need their protection.2

That last reflection of a great mind was later expressed in the saying of

Westlake “that the mitigation of war must depend on the parties to it feeling

that they belong to a larger whole than their respective tribes or states, a

whole in which the enemy too is comprised, so that the duties arising out of

that larger citizenship are owed even to him.”3 Regrettably, the development

of a sense of that “larger citizenship” has been of slow growth. Since the

ancient chronicler spoke of the “general laws of humanity,” then lacking

legal force but still recognizable, it has taken over two thousand years for

those “laws” to assume the shape of juridical norms applying world-wide.

What do those norms mean? What consequences follow from non-compliance

with them?