国际刑事法院：理想、现实和展望

国际社会为了惩处反人类罪等罪行成立了国际刑事法院.但成立该法院的理想与现实有比较大的差距,特别是该法院与国内法院管辖权有冲突,该法院与联合国的关系尚需协调.国际刑事法院应当处理个人犯罪行为,可以扩大案件受理的范围,但不宜判断国家的司法是否有效,特别是不能以一个国家的司法不符合正当法律程序为由否定国内法的审判.提出国际刑事法院的侦查、起诉职能应与审判职能分开,建议由联合国安理会负责指示检察官对国际犯罪的调查和起诉.

The Ambition, Reality and Prospects of the International Criminal Court

The international criminal court is endowed with the mission to adjudicate individuals other than states,and to investigate their most serious crimes of international concern.Nevertheless,the ambition to establish an international criminal court has not yet been completely fulfilled.In view of the crimes currently admissible to the international criminal court,some significant international crimes have not been listed within its jurisdiction. The ambition to establish an international criminal court is worthwhile,but the ideals vary among the 100-plus states throughout the globe.The international criminal court cannot satisfy the ambitions of all the states,but has to make a concession.An inevitable issue between the ambition and the reality remains the relationship between the international criminal court and domestic courts.As far as adjudication is concerned,the international criminal court may deem that a domestic adjudication is incompatible with the due process and therefore repudiate the domestic adjudication,and may thus handle the cases already heard by a domestic court.This implies that the international criminal court places its authority and procedural instance above any domestic court.This approach may bring a series of problems,eg.the function of "due process of law" is to protect the individuals,especially those are charged with criminal offence.It is not clear that how ICC should do if it finds that a national tribunal is unfair to an accused in terms of due process of law;the ICC shall have jurisdiction over natural persons,not a state or national court.It is not competent for it to conduct a hearing to determine whether a national judicial system is collapsed,efficient or not.It might be better for the United Nations to determine a state situation,i.e.if its judicial system is collapsed or if its governance,i.e.investigation,prosecution and adjudication is efficient,and if the head of such state is shielded by the national legal system,and finally if an international operation,including adjudication,is necessary to be used upon the state and its leaders.