国際刑事裁判の法の支配とその射程

抄録

This article examines the nature of the rule of law in international criminal justice through a critical evaluation of deterrent theory, the most widely accepted argument supporting international criminal tribunals today. Contrary to the assumptions of deterrent theory, the premise of which is centralized enforcement of international law, it argues that the rule of law in international criminal justice is decentralized in two ways. First, it requires the consent of sovereign states to establish jurisdiction and the cooperation of states to enforce international criminal law. Second, beyond the direct execution of international criminal law, the legal norm embodied by international criminal courts to end impunity for the perpetrators of grave human rights abuses encourages states to conduct human rights trials in their domestic courts.

The article begins by reviewing the logic of deterrence. Deterrent theory has become prominent as an increasing number of international prosecutions are directed at the perpetrators of ongoing violence. It is assumed that the threat of punishment will deter the perpetrators from further criminal acts and, thus, prevent the escalation of conflict. In this instance, deterrent effects are viewed as conveyed in a manner that applies domestic deterrent theory of punishment at an international level. While this domestic analogy tends to emphasize the coercive power of law, this article demonstrates that the power of international tribunals to constrain the conduct of sovereign states and individuals has been weakening. While the Nuremberg and Tokyo tribunals were executed on the strength of the victors’ overwhelming power, today, international tribunals as exemplified in the ICC and hybrid courts basically require the consent of states.

The article then investigates the normative aspect of international criminal justice. It has a high level of legitimacy—it is recognized as legitimate by a majority of states in the world. This fact encourages voluntary compliance of international criminal justice at a national level. However, the problem is what to do with the remaining countries. Grave human rights abuses are committed in a minority of undemocratic states whose levels of political liberties are extremely low. These countries tend to remain outside the international criminal system. It is difficult to prosecute atrocious state leaders without regime change, but international criminal justice as it is implemented now merely “complements” the functions of sovereign states. It has neither the power to coerce regime change nor the normative power to encourage voluntary human rights trials in national courts.