Reason For The Poor Asian Response To International Criminal Court

INTRODUCTION

Classical international law is the system that protects the rights of sovereign states to be free from external aggression and sets out a framework by which the relationship between states may be regulated. The matters relating to the individuals were considered as the private affairs of each sovereign state having absolute control on its residents. The Hobbestian notion of unrestricted, uncontrolled, inalienable domestic sovereign rights of states encapsulated under treaty of Westphalia  continued with minimum changes up to the end of World War II, when after the huge destruction of innocent lives followed by holocaust of Jews made the world community to think that states could not always be relied upon to guarantee the most basic rights of their citizens[1] nor they could be relied upon to hold the individuals accountable for committing core crimes of humanity , and thus an attempt was made to limit the absolute powers of sovereign states in treating their citizens and a new autonomous branch of law came into existence namely International criminal law, which is the combination of that body of laws, norms, and rules which governs the international crimes and their repression, as well as addressing conflict and cooperation between national criminal-law systems.

Development of international criminal law is seen as a significant departure from 'classical' international law which was mainly considered as law created by states for the benefit of states, but tended to ignore the individual as a subject of the law. Thus whereas International law typically imposes responsibilities of States for their benefits , international criminal law imposes responsibilities directly on individuals[2] and punishes violations through international mechanisms. Over a period of time certain crimes were recognized as Jus Cogen crimes imposing Erga Omnis obligation on each state to prevent them and punish the offenders irrespective of their official position. The Judgment of Nuremberg and Tokyo trial laid the foundation of transitional justice whose principles were later on recognized and incorporated under several conventions, treaties and statutes, the key   instruments among these are Anti Genocide Convention of 1948, Hague and Geneva conventions on war and warfare 1949 with its two protocols of 1977, Anti Torture convention 1975, Rome statute of International Criminal Court 1998 etc. In true spirit International Criminal Law got momentum only after the judgment of Nuremberg and Tokyo trial wherein it was observed that no body , no state, no head of state, no soldier acting under apparently legal orders has right to violate the most fundamental rights of humanity.[3] Thus international criminal law laid to the "subjection of the totality of international relations to the rule of law"[4]