Les crimes internationaux : vers un droit pénal supranational ?

Abstract

The advent of international criminal courts and the adoption of the Rome Statute aimed at creating a permanent international criminal court raise the question of whether the desire to punish the most odious crimes is leading inexorably to the creation of a supranational criminal law. Is the real intention to create an international legal system binding on States ? And if so, with what end in mind ? We know that international law is not limited to the regulation of relations between sovereign States. If the Westphalian view of international relations still has its followers, one notes increasing emphasis on the defence of humanity through humanitarian law, inciting international law to take a greater interest in protecting human beings. This trend in international law started over a hundred years ago in response to an increasing awareness of the problem. Today the world knows that by waging total war it is in danger of destroying itself. Its awareness of what happened in the past and its fears for the future have led, through international agreements called humanitarian, and in spite of the lack of any specific project, to the implementation of a number of measures intended to prevent any regression. But classic humanitarian law has proved inadequate ; it is not enough to prohibit certain acts, they also need to be sanctioned. This is why, since the end of the Cold War, international law has become steadily more repressive. It has dealt with emergency situations (ex-Yugoslavia, Rwanda) by making violations of international humanitarian law criminal offences and by creating special international jurisdictions to apply sanctions (I). The competence of these ad hoc institutions is limited however and does not enable them to sanction all internationally recognised crimes. Hence the idea of creating a universally competent international court in the future (The International Criminal Court). These new institutions will not completely replace national criminal courts. States and their agents will remain the main actors in the repression of international criminals. Given this situation, States will continue to play an essential role, taking part in prosecutions as they see fit, and retaining sovereignty in criminal matters (II). In fact States accept rather than suffer the application of humanitarian criminal law, not only for legal reasons (States' territorial and personal competence), but also for political reasons (maintaining diplomatic relations, respect for the need for national reconciliation). Clearly, the institutionalisation of the defence of human rights, through the prosecution of serious violations of humanitarian law, and the existence of specific repressive jurisdictions, does not call into question the relational nature of international law, nor the respect for the sovereign equality of all States. Under these conditions, the road to a supranational criminal law could well be long.