By Ifra Jan* and Karmanye Thadani**
Introduction
One of the most important driving forces behind the decision to establish the United Nations was the prime determination “to save succeeding generations from the scourge of war, which twice in their life time had brought untold sorrow to mankind”. However, even after the formation of the United Nations, several armed conflicts and wars continue to inflict pain and suffering. In this consideration, the Humans Rights Committee during its sixteenth session in 1984 observed that “war and other acts of mass violence continue to be a scourge of humanity and take the lives of thousands of innocent beings every year”.
Generally, in situations of conflict arising from the territoriality principle, states have the power to take jurisdiction over the crimes committed within their territory, which is inherently defined under their sovereignty. However, under nationality principles, states would assume jurisdiction over the crimes committed by their nationals outside the boundaries. In the exercise of their sovereignty, states can delegate the task of trying a particular type of offence to an international body. This was done after World War II and, more recently, after the conflicts in the Balkans, in Rwanda, Sierra Leone, Timor Leste and to a less extent in Cambodia.
Before the inception of the International Criminal Court (ICC), a brief introduction to the two ad hoc tribunals, International Criminal Tribunal for the former Yugoslavia (ICTY) and International Criminal Tribunal for Rwanda (ICTR), is important, as this would further highlight the importance of the ICC. Firstly, the United Nations Security Council set these ad hoc tribunals in order to exercise and maintain its security and peace powers which are defined under Chapter VII of the UNSC charter (Action with Respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression). Secondly, these tribunals shared their respective jurisdictions with the national courts (like the ICC as well), however, there was no mention anywhere that the decision of the tribunals shall supersede the national courts (unlike the ICC). Lastly, the tribunals only served at a specific location under a special time frame and were subjected to selective justice, which failed to transpire into the world at large, which was facing similar crises during the same time.
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International Law Square 