국제형법의 가능성과 한계

Abstract

In this paper, I have discussed the problems of the operation of the International Criminal Law in my view. There are three major problems in the operation of the International Criminal Law: enforcement problems, interpretation problems, and ‘negative Negroism’. This is not a problem in the operation of the International Criminal Court, but also a problem in the international criminal law operation in the international situation. Considering that text is interpreted in context, international criminal texts must be influenced by the situation of the international community. First, ‘executive problems’ stem from the possibility that some of the world‘s great powers do not join the International Criminal Court, but they hinder the execution of international criminal law through the veto of the UN Security Council. The United States, China, Russia and other great powers reveal their desire to lead the world. It is nothing more than to define the identity of the world. In this case, the powerful countries want the international criminal law, which is represented by the Rome statute, to be used in accordance with the interests of the great powers. Second, ‘operational problems’ are caused by realism, which uses moral arguments, and ‘partiality’ of moral arguments. The concept of human rights belongs to the idealism tradition, but realism has dominated international relations. Realism based on strength in international relations is unexpectedly borrowing the power of morality in legal argument. Article 22(2) of the Rome Statute states that criminal definition should be strictly interpreted, but it is unlikely to be true in interpreting realistic regulations. Third, ‘negative Negroism’ is caused by the fact that the investigation, prosecution and trial of International Criminal Court are concentrated in African countries. The International Criminal Court is free from the criticism of ‘selective justice’ to be applied equally to all the countries of the world for investigations, prosecutions and trials. Of course, the practice of the International Criminal Court concentrated in the African countries would not have been intentional. The failure to properly intervene in non-African country criminals is considered to be due to considering the international situation and considering the concerns of disputes. It may be the limit of the International Criminal Court, but it must be overcome. More and more countries are working together to do international criminal law. Above all, we must make efforts to strictly interpret the Roman rule centered on ‘universal human rights’. The concept of ‘universal human rights’ should also be the concept of ‘rights based on fundamental interests’.