General Theory of International Criminal Law

Author: Zhang Zhihui
Editor-in-Chief: Ding Xiaoxuan
Publisher:
Publishing Date: 1999-01-01
Features: Supplement Edition
The author's work, General Theory of International Criminal Law, published in 1993, has been highly appreciated by many predecessors, colleagues, and a broad readership. It was honored as part of the first batch of works in the "Young and Middle-aged Legal Studies Series" by winning the Second Prize of the "China Book Award" in 1993, the First Prize of the "Outstanding Academic Works" award from the People's Public Security University of China in 1994, and the "Outstanding Young and Middle-aged Achievement Award" of Beijing's Philosophy and Social Sciences in 1995. However, with greater praise comes heavier responsibility. As the author, I am fully aware of the gaps and errors in the book. To express my gratitude to all predecessors, colleagues, and readers, as well as to alleviate my remorse, I have supplemented the 1993 edition based on the developments in international criminal law and my recent learning experiences, while also making some revisions in specific areas.
The supplemented General Theory of International Criminal Law primarily adds content on international criminal cooperation, which was not covered in the original edition, based on the development of the International Criminal Court. Additionally, the chapter on "China and International Criminal Law" has been revised in line with the revised Chinese Criminal Law and Criminal Procedure Law. Furthermore, new content has been added regarding recent international cooperation between China and foreign countries in extradition and criminal judicial assistance. However, the issue of criminal judicial assistance among different legal jurisdictions within China has been omitted due to its relevance being considered too distant. In fact, this is also a field worthy of research.
Author, April 15, 1998
Content Summary
This book provides a comprehensive introduction to existing international criminal law norms while systematically elaborating on the fundamental theories of international criminal law. It covers various principles of international criminal jurisdiction (especially the universal jurisdiction, a unique principle of international criminal law), general principles of international crimes and criminal responsibility, and the classification of international crimes. It offers a thorough discussion of all types of international crimes, systematically explains the application models of international criminal law and the basic approaches to international criminal cooperation, provides an in-depth analysis of China's participation in international criminal legislation, as well as the extradition treaties and judicial assistance agreements signed between China and foreign countries, and proposes insightful legislative recommendations.
Excerpt:
(II) International Criminal Law as an Objective Need for Effective Sanctioning of International Crimes
The characteristic of international crimes lies in their transnational nature. This transnational nature creates obstacles for countries in prosecuting such crimes, thereby making the need for more effective international legal response mechanisms more urgent in combating them.
1. Conflicts in Criminal Jurisdiction
Criminal jurisdiction is an important component of state sovereignty. Each country's adherence to state sovereignty necessarily prohibits other national judicial authorities from exercising criminal jurisdiction within its territory. However, each country also claims the right to exercise criminal jurisdiction over its own citizens who commit crimes abroad or appear in foreign territories after committing crimes, based on the principle of nationality jurisdiction, or to exercise jurisdiction over crimes when the victims are their own country or citizens, based on the principle of protective jurisdiction. This situation inevitably leads to legal conflicts among countries when exercising criminal jurisdiction over crimes with foreign elements. In an international environment where the trend of crime internationalization is becoming increasingly apparent and the foreign elements of crimes are growing, these conflicts are becoming more frequent and intense. This creates numerous artificial barriers to punishing and preventing international crimes that severely threaten the common interests of humanity.
Facing the rampant international crimes with foreign elements, establishing a harmonious international legal response mechanism and eliminating artificial barriers in criminal jurisdiction to more effectively combat such crimes can be seen as an objective requirement for protecting the common interests of all countries.
On the other hand, due to the globalization of economic exchanges and the mobility of people, especially with the advancement of modern transportation, certain crimes that violate the common interests of humanity are increasingly showing an international trend. This trend severely endangers the shared values of humanity and the interests of the entire human society. This reality compels countries to consider establishing unified legal response mechanisms in certain fields based on the principle of sovereignty, or to take coordinated joint actions. This is the intrinsic driving force behind the emergence of international criminal law.
In this regard, it can be said that experts and practitioners from around the world have long reached a consensus, and it can even be argued that establishing a unified international criminal law system has long been one of the primary goals of relentless efforts by international academic organizations and renowned scholars.
In 1935, the then president of the International Society of Criminal Law, Professor Perla, drafted a preliminary outline of an International Criminal Code. Since the mid-1970s, the International Society of Criminal Law has been dedicated to drafting a unified International Criminal Code and establishing an International Criminal Court. In 1979, the current president of the International Society of Criminal Law, Professor Bassiouni, drafted the Draft International Criminal Code on behalf of the society. In 1987, he revised and supplemented it into the Draft International Criminal Code and International Criminal Tribunal Law based on the views of the majority of scholars in the society. The International Law Association and the International Society for the Defense of Society have also made many positive efforts in this regard.
At its 14th Congress in 1989, the International Society of Criminal Law, in its Resolution on International Crimes and Domestic Criminal Law, explicitly affirmed the efforts made by the United Nations, the Council of Europe, the International Society of Criminal Law, the International Law Association, and many scholars in drafting an International Criminal Code to effectively prevent, prosecute, and sanction international crimes, as well as to establish procedural guarantees, especially those accepted by international human rights conventions.
At its 15th Congress in 1994, the International Society of Criminal Law once again recalled its long-standing support for the initiative to establish an international criminal judicial system implemented by an International Criminal Court under a set of laws, and affirmed that establishing a permanent International Criminal Court would strongly promote compliance with international law and respect for human rights.
In November 1994, the United Nations Economic and Social Council organized the World Ministerial Conference on Organized Transnational Crime, which adopted the Naples Political Declaration and Global Action Plan to Combat Organized Transnational Crime. The declaration stated that the international community should adopt a universally accepted concept of organized crime as a basis for formulating more coordinated national measures and enhancing effective international cooperation. The conference firmly believed that there was an urgent need to establish more effective international mechanisms to assist countries and promote the implementation of a common strategy to prevent and combat organized transnational crime.