On the Current Trends towards Criminal Prosecution and Punishment of Breaches of International Humanitarian Law 8 Concluding Remarks The trend towards `criminalization of international law', through criminal prosecution and punishment of breaches to international humanitarian law by international criminal tribunals, should not blind us to the basic dilemma facing international tribunals: prosecution and punishment or continued respect for state sovereignty? The supremacy of state sovereignty in the form of excessive restrictions on the jurisdiction of international criminal courts can only result in the creation of ineffective institutions.41 In addition, the trend towards the institutionalization of international criminal law must not detract from the underlying political realities. Judicial reckoning, while necessary in order to uphold and enforce the international rule of law, should run parallel to steps taken on the political level. The prosecution and punishment of war criminals by an international criminal tribunal (whether ad hoc or permanent) cannot be a substitute for robust action by the United Nations where required to restore international peace and security. As long as the ideological, political and military leaders behind the serious violations of international humanitarian law still remain firmly in power, flaunting with impunity their rendezvous with justice, this can only result in a discrediting of the work of international criminal tribunals. So long as states retain some essential aspects of their sovereignty and fail to set up an effective mechanism to enforce arrest warrants and to execute judgments, international criminal tribunals may have little more than normative impact. Thus, we are once again reminded of the limits posed by international politics on international law.42 In spite of these problems, the most effective means of enforcing international humanitarian law remains the prosecution and punishment of offenders within national or international criminal jurisdictions. I will go further and say that the rule of international humanitarian law depends on its enforcement through the prosecution and punishment of its offenders. As Cesare Beccaria stated as long ago as 1764, `the conviction of finding nowhere a span of earth where real crimes were pardoned might be the most efficacious way of preventing their occurrence',43 and thus of ensuring respect for the rule of law. 41 Report of the International Law Commission, 46th Session, 1994, at 36. 42 `International Law is still limited by international politics, and we must not pretend that either can live and grow without the other.' Stimson, `The Nuremberg Trial: Landmark in Law', 25 Foreign Affairs (1947) 189. 43 Beccaria, `Dei delitti e delle pene', translated in J. Farrar, Crimes & Punishment (1880), at 193-4.
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