论成立国际刑事法庭的合法性问题

刑法上的“合法性原则”要求一个法庭必须“依法成立”。法庭只有“依法成立”,才有资格进行审理、并在确定被告有罪时对其进行定罪。刑法上这个原则,当然也适用于国际刑事法庭。自上个世纪90年代以后,国际社会为了惩治严重的国际犯罪行为,已成立了不少国际刑事法庭。尽管这些国际刑事法庭的宗旨和目的相同,但它们的成立方式却各不相同:前南斯拉夫国际刑事法庭和卢旺达国际刑事法庭是联合国安理会通过决议成立;塞拉利昂特别法庭是塞拉利昂政府与联合国通过签订协议而成立。虽然,成立方式可以不一样,但都必须符合“合法性”原则。本文将通过案例分析,来探讨这些国际刑事法庭在实践中是如何论证和裁决关于成立国际刑事法庭的“合法性”原则的法理问题。

On the Legality of the Establishment of the International Tribunals

It is required in accordance with the Principle of Legality that a court must be lawfully established. Only being lawfully set up can the court be entitled to hold trials and to impose sentence upon the accused if the latter got convicted. The principle of legality is certainly applied to the international tribunals as well. So far, several international tribunals have been established since 1993 in order to prosecute those who have committed serious crimes of international law. Though the purpose and objectives of these tribunals are the same, the ways of their establishment are different from one to the other. The ICTY and the ICTR, for example, were set up by adoption of resolutions in the UN Security Council; while the Special Court for Sierra Leone was established through the agreement concluded between the United Nations and the Government of Sierra Leone. It must be pointed that the venues may be different, but all these organs have to meet the requirement of Legality. The present article will, through cases before the international tribunals, analyze the decisions and reasoning applied by the tribunals in relation to the legality issue.