국제형사재판의 문제점과 과제

The International Criminal Court (ICC) is a permanent, international criminal court with the competence to exercise jurisdiction over those who have committed crimes of genocide, crimes against humanity, war crimes and crimes of aggression. Since its establishment in July of 2002, the ICC has made good strides forward in holding the perpetrators of such crimes accountable. The ICC, however, has faced many of the same problems early on, and faces many difficult challenges, particularly in relation to the cooperation of states and its independence. This article addresses some issues and challenges facing the ICC - in connection to the activation of the ICC’s jurisdiction over the crime of aggression as of 17 July 2018 - from the perspective of: the principle of ‘nullum crimen sine lege’ (the principle of legality) (Ⅱ.); the scope of hearsay rule and its exceptions (Ⅲ.); and the exercise of universal jurisdiction (Ⅳ.). The principle of ‘nullum crimen sine lege’, contained in Article 22 of the Rome Statute of the ICC, contributes to a foreseeable legal system as it stipulates that only actions which are prohibited by law can be deemed as criminal. The principle acknowledges that the person under investigation or the defendant is virtually in a weaker position in the criminal process and that the individual therefore has a need to be protected from a misuse of powers by the judiciary. Despite this fundamental importance, however, the principle is harder to apply and fulfil in international criminal law than in national criminal law since international criminal law often is more vague than national law. The Rules of Procedure and Evidence of the ICC are silent on the exclusion of hearsay evidence. The ICC may rule on the admissibility of any evidence by taking into account its probative value. Futhermore, the Assembly of States Parties to the Rome Statute of the ICC adopted amendments to the Rules of Procedure and Evidence on November 28, 2013, which give Trial Chambers the discretion to admit unexamined, party-generated witness statements in lieu of live testimony. The amendment to Rule 68 facilitates the use of prior recorded testimony in trial, which serves purpose: To allow evidence before trial in order to reduce time in trial. Nonetheless, the use of this evidence undermines the right of confrontation and prevents judges from independently assessing witness credibility. State cooperation is vital to the effective exercise of universal jurisdiction of the ICC. The dilemma of universal jurisdiction lies in the tension between law and politics in the pursuit of international criminal justice, for example in bringing prosecutions, extradition and other matters of trans-border cooperation. In order to become more efficient, some ground rules must be laid by the ICC and the parties of the Rome Statute to ensure the full support of the states. On the other hand, with regard to cases involving the crime of aggression, the relationship between the ICC and the UN Security Council generates discussion and criticism. Under the UN Charter, the Security Council has a key role to play in responding to acts of aggression; it can be argued that the Security Council could play something of an early warning function in the exercise of jurisdiction over this crime by the ICC.