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State Obligations under International Criminal Law: Progress, Challenges and Prospects by Deepa Kansra

Introduction

Human rights reflect the collective aspirations and commitments of the global community. Over the years, the human rights movement, zealously led by several players in addition to the state, has resulted in the acceptance of a variety of global and domestic obligations. In specific, the UN created human rights regime has endorsed a multidimensional approach towards the articulation and implementation of human rights obligations.

With several challenges being faced, the inability to prosecute for violations of human rights has been most critical and complex for international law. In this regard, international criminal law (ICL), a specialized branch of international law, is authentically determined to realize the objective of prevention and prosecution of crimes. ICL is potentially the medium that pushes states to seriously consider their conduct in relation to grave violations, commonly referred to as international crimes. Over the years, the mandate of States under ICL has expanded vigorously, encompassing efforts made even by non-state institutions and several other players.[i] The objective of international criminal law has also become clearer and more defined with the adoption of specific rules and the creation of specialized institutions.

Setting the pace for a stronger role to be played by international law, the International Law Commission in 1954 adopted a Draft Code of Offences against the Peace and Security of Mankind, which declared genocide, aggression, crimes against humanity, and war crimes as criminal under international law.  Post World War II, several institutional mechanisms were created for the sake of the prosecution of individuals committing the said crimes.[ii] Justice was sought to be achieved through a variety of institutions like specialized Tribunals, Truth Commissions, Special Courts (Sierra Leone), Hybrid Chambers (Kosovo, East Timor). The creation of these institutions is said to have been supported by three political reasons;

  1. Replacing private vengeance with the rule of law and thereby promoting long-term peace and stability
  2.  Creating a historical record as a means to educate future generations, and
  3. Providing a sense of closure for the injured individuals and communities.[iii]
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