State Sovereignty Vs International Criminal Accountability
Shubhi Singh, LLM, NLU-O
Anjali Agrawal, LLM, NLU-O
CHAPTER I: INTRODUCTION
1.1 Background and Context
The classical form of international law is based on the assumption that states have the exclusive territory under their sovereignty. Therefore, criminal accountability questions were viewed as domestic issues, whereas international law dealt only with acts and conduct of the states and not the individuals. The state responsibility mediated even the most serious violation of international standards under this paradigm, thus closing the paths to direct individual accountability.
This paradigm later split apart when it was realized that the domestic legal machinery alone could not be used to ensure accountability for large-scale atrocities. In cases where the state machinery itself was involved in mischief, the assumption of effective domestic prosecution proved unrealistic. This gap was filled by the jurisprudential development after the Second World War that suggested a position where individuals can be directly held responsible under international law and thus limited the protective scope of sovereignty in matters related to the commission of serious crimes.
The introduction of ad hoc international criminal tribunals and eventually the permanent International Criminal Court as defined by the Rome Statute did not end the state-centric architecture but placed another layer of responsibility on it. The International Criminal Court is not the substitute of the national jurisdiction, but it operates under the very system that depends on the consent, cooperation, and enforcement of the states. This dependency is what makes sure that the efficacy and scope of the international criminal law practice are still dictated by sovereignty.
