Although the international criminal law acts like a stabilizing facet with regard to international systems and can at times be referred to as a force for good, the law cannot be termed as legitimate when used in state actions or states. For the law to be considered legitimate, its decisions and principles need enforcement mechanisms that are beyond the consent as well as the goodwill and trust of the parties to treaty (Bassiouni, 2012). Additionally, for the law to become legitimate, it should develop a true obligation and not serve like an expedient means to an end like the apparent international criminal law does for the majority of states (Shaw, 2014).
Apparently, the obligations of states are outlined in customs and treaties. However, the enforcements are based on empty threats and vague clauses established in the international bodies such as UNSC or in documents. It is worth noting that consent in any law is imperative. However, the status of the international law cannot be based on the consent alone (Bassiouni, 2012). The unitary actors and rational states make decisions that are in their best interests. Additionally, they consent to different treaties and conventions which are in the best interests of the states. However, the consents made can be rescinded immediately when the priorities of the state change or there are better options in place (Shaw, 2014).
Moreover, in regard to the majority of the sources used in the international law, its principles vary and are too vague in such a way that they cannot form a foundation or basis of the international legal system (Shaw, 2014). The customary law has been dependent on “opinio juris” and practices of the state. This can be ascribed mistakenly to the state as it takes the course of action because it is convenient. More so, treaties are enforceable only when groups of parties or one party has the ability to impose compliance to other parties. A good example is illustrated by the Cold War rivalries holding the UNSC hostage. In times like that, systems of the international criminal law tend to closely resemble a political protection racket and not an international legal regime (Bassiouni, 2012).
If it was possible to describe the international criminal law with two keywords, they would include sovereignty and consent. Under the system of the international criminal law, the states are free to act in the way that they wish while handling domestic matters as well as engaging their interests globally (Cryer et al., 2014). Limits on sovereignty should be consented to by different states when they want to become part of international legal convections or when signing treaties. However, the consents can be rescinded anytime, and there are limited mechanisms that force states to keep obligations.
Based on the broad definition of law by Austin, law is supposed to be a rule which is established to guide an intelligent person by another intelligent person with more power (Bassiouni, 2012). The majority of laws are usually established and passed by political superiors. Therefore, the laws are imposed on the people over whom such superiors have the power and authority of enforcing them (Bassiouni, 2012). This implies that the superiors establish commands via their willingness to cause harm to the violator if they fail to comply. Indeed, if the law lacks the latter credible threat, it ceases being a command. Rather, it becomes an articulation of desire or wish. Therefore, since all the actors of the state are independent and exercise equality with no other powers to govern their action, there is no political superior to enforce the international criminal law. Therefore, the international criminal law is not legitimate because political superiors do not create it. Rather, it is just “mere opinions” constituting views on how the people ingrained in international societies would want the world to be governed (Cryer et al., 2014).
In fact, documents such as human rights declarations as well as organizations like ICC are idealistic and aspirational (Ormerod & Laird, 2015). However, they are flouted frequently and are subject to the consent of the state. The latter examples express a desire. However, if there is no purpose to enforce compliance in regard to the desire, the expression allied to the desire ceases being a command. Therefore, such desires are not considered to be a law. Indeed, according to Bassiouni (2012), such imperfect laws lack obligation, and enforcement can only serve as guidelines, counsel, but not as a binding or legitimate law.
It is worth noting that nations observe the principles of the international law as well as the obligations due to the benefits derived from the law and not because they are obligated to be under the law. According to Shaw (2014), states reap intense security and economic benefits from peaceful borders, open air, sea navigation, and global trade among other benefits provided by the international legal regime. Therefore, the states always continue to adhere to the international legal regime tenets provided there is no greater opportunities outside their legal systems (Cryer et al., 2014).
The international criminal law was started by states that pursued their interest in a bid to acquire mutually beneficial results or outcomes. Therefore, the law survives to the extent to which it has the capacity to serve such interests. Through such a lens, the international criminal law should be examined based on the perspective of the domestic interest of different states or groups, and how their interests dictate the international criminal law (Bassiouni, 2012). For example, the World Trade Organization (WTO) is an example of a body founded to resolve bilateral disputes among states. The United Nations, on the other hand, assists in coordinating cooperation among states. Nonetheless, if the United Nations imposes restrictions such as the obligation of charter in regard to the use of force or command, the majority of organizations sideline the institution if there are any consequences, especially to the great powers. Indeed, the international criminal law system places nations such as the P-5 in the UN or the UNSC in the International Monetary Funds above the law system (Cryer et al., 2014). Therefore, unless all nations become equally subject to the international criminal law, the law cannot be considered legitimate.
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Some authors argue that “opinio juris” drives consent for the law as well as provides the international criminal law with its legitimacy. Such a sense of obligation is unexplainable by nature (Shaw, 2014). For example, in the landmark case of 1996 involving the legality of using nuclear weapons, the International Criminal Court was profoundly divided as to whether the non-recourse allied to nuclear weapons for 50 years constituted an “opinio juris” expression (Bassiouni, 2012). Therefore, if the court could not consider the 50 years of precedent “opinio juris,” then compliance with the international criminal law with tangible benefits cannot be termed evidence to an obligation.
In conclusion, it is undeniably true that the international criminal law does not pull different states and nations toward compliance contrary to the inherent interest. Instead, the international criminal law varies when the interest changes. For this reason, for the international criminal law to become legitimate, it must be mandatory for every one as well as content with all international statuses and borders. If the international criminal law does not comply with the latter, then states will disregard the legal regimes put in place while pursuing their ends as they deem fit.
