The causes of conflict and solution of International Criminal Law

   Abstract:This paper tries to conflict of international criminal law facts, legal reasons, according to the inherent basis, special form on the causes of the conflict between the international criminal law. The paper points out that, to solve the conflict of international criminal law mainly rely on the parties to international crime in domestic criminal law.

   Keywords: Conflict of International Criminal Law The causes of The solution

1International conflict of criminal law and its contents

1.1The concept and characteristics of conflict of International Criminal Law

 Conflict of laws is the law of different legal phenomenon refers to two or more than two to adjust the same legal relationship arising from the application of conflict in these laws. The conflict between international criminal law is the legal conflicts with international factors, refers to the conflict and all sovereign countries on the application of international criminal law. That is to say, the sovereign countries of international crime, transnational crimes and crimes involving foreign elements of whether to exercise the power of penalty, is applicable to the international criminal norms and domestic law, conflict and is applicable to domestic criminal law or criminal law arising.[1] international conflict of criminal law has the following characteristics: first, the conflict of law, refers to an independent area due to differences in their respective legal provisions to the same legal relationship on the same legal relationship and vied to apply their laws so as to form the contradiction conflict and application of law of legal validity, or conflict of laws the law is not applicable to the same legal relationship. Secondly, this concept shows, conflict of laws to be flat or three-dimensional space conflict of laws in the validity, is between law domain and domain or subordinate legal conflict of laws, the external manifestations of legal effect of the application of conflict and conflict of laws. In addition, this concept also we, conflict of laws is also reflected in the positive and negative conflict of two forms of conflict.

1.2The conflict between the International Criminal Law

Conflict of international criminal law are those? It is generally believed that the following aspects.

   1.2.1The criminal substantive law, conflict. Its main content is a crime and penalty provisions and the applicable range of the law, the conflict of criminal law mainly three parts conflict, crime and punishment scope of conflict and punishment. First of all, is the conflict between the scope of application of criminal law. Scope of application of criminal law, this refers to the spatial scope of application of criminal law. A country's criminal law can not only apply to the country in the field of behavior, but also can be applied to the fields under the condition of certain behavior. When it is applied in the field of external behavior, restricted by international law. On the scope of application of criminal law, there are two basic principles: principle of nationality and the territorial principle. In addition there is protection principles and the principle of eclecticism. Due to the various countries criminal law the principle is different, for the same crime, there may be several criminal law are likely to apply. And, motivated by the need to punish international crimes and transnational crime, all in accordance with the international convention of universal jurisdiction. In this way, the criminal law conflict in the scope of application will be more competitive. Second, the conflict is a sin. Such as crime and non crime, this crime and that crime conflict conflict, felony and misdemeanor charges of conflict, conflict, the criminal elements of the conflict and so on. Third, is the penalty of the conflict. There is conflict, the penalty system of punishment. In addition, there are rules and crimes related to the conflict, such as conflict, the basic principle of criminal law is related to the age of criminal responsibility conflict and so on.

1.2.2The criminal procedure law, conflict. The main manifestations of conflicts of jurisdiction, litigation conflict, extradition provisions conflict. The jurisdiction conflict is in terms of international crime and transnational crime. The conflict lawsuit system including the rights of the defendant, the burden of proof obligation conflict conflict. Extradition is a country should his country's request, then in the territory by the foreign accused of a crime or has been sentenced by the man over to the foreign to the prosecution or punishment activities.[2]The conflict of extradition, Extradition Law countries for extradition, extradition crime, extradition rules are not all the same, or between different countries is signed a bilateral or multilateral treaties. In extradition, if you also have several enjoys the criminal jurisdiction of the state and extradition requests, or jurisdiction of a state of non extradition request, will produce the extradition of conflict.

Thus, conflict of international criminal law is not only reflected in the substantive law, but also may appear in the aspect of procedural law. So, how to solve the problem? The author thinks, only to find its cause of formation, thus found the right way

2  Causes of the conflict between the International Criminal Law

Causes of the conflict between the international criminal law, the author believes that the following aspects:

  2.1With foreign elements, crime, this is a fact causes of the conflict between the international criminal law. The so-called foreign factors, refers to the crime in the factors of one or more relations with his country. The internationalization of crime trends, crime often meet with foreign elements. With foreign elements of crime mainly has such several situations: (a) the subject of crime has foreign factors. (1) national crime within the domain to flee to other country; (2) the crime to foreigners in the region; (3) foreigners in the domain of crime; (4) foreigners in extraterritorial crimes; (5) foreigners in foreign countries or in China according to the citizens crime. (two) the object of the crime is foreign factors. (1) native to foreign interests of crime; (2) on the rights and interests of foreigners in china. (three) (1) to prepare (or planned) behavior occurred in the domain and the implementation of behavior in abroad; (2) preparation (or planned) behavior in foreign and implement behavior occurred in the region; (3) behavior occurred in the domain and result in abroad; (4) behavior occurred in the domain and results occurred in the region; (5) the behavior \ results occurred in the domain., and was found to result in abroad

    2.2The nature of public law, criminal law, which is the internal basis of international criminal law of conflict. As we know, one of the country's main sovereign is the legislative power, the legislative power of the resulting in different jurisdictions on earth. As long as the state exists, the law phenomenon will not disappear. Scope of law will not disappear. So, on the same legal problems, different jurisdictions may make different provisions, the law conflict, the conflict will not only in the field of civil law, but also occurs in the field of criminal law. And, according to some western scholars point of view, the criminal law belongs to public law, namely the more is the starting to regulate the society from the perspective of public good, so more mandatory, forced the typical method. Once the extraterritorial effect of a country's interterritorial effect and another country also appeared in a criminal case, and the countries concerned on the same issue shall not at the same time, the criminal law conflict will occur. Private international law is, this conflict more difficult to coordinate . (Note: the legal domain validity refers to a state law, effectiveness, which is the space of domestic legislation on the territory of all people, objects and behavior, also known as territorial validity. The extraterritorial effect of law refers to a legal person of all country, whether a person is effective in domestic or abroad, also known as personal effectiveness.)

  2.3Criminal law can not regulate, the existence of space, this is a special form of the conflict of international criminal law. According to the characteristics of the international criminal law, international criminal law conflicts are also likely to show a negative conflict. In some places, such as on the high seas, international shipping line, submarine cable, therefore, on the high seas are looting, destruction of the cable may be, for this kind of illegal behavior, to the exercise of jurisdiction and not make, have jurisdiction is unable to exercise the jurisdiction. Also, destructive exploitation on the high seas, toxic test, the law of any country are difficult to apply. Therefore no space is one of the reasons of the conflict of international criminal law.

   2.4, the lack of international criminal law and international criminal court was a legal cause of conflict of international criminal law.

  The development of international criminal law, International Convention on standards of setting and development of international criminal law. The international convention is composed of sovereign countries to participate in voluntary, therefore, international convention only to state or convention in the effective. Even if the Convention members, from participating in the approval of this period of time, the Convention in the country also do not have the force of law.

  On the other hand, the treaty in domestic applicable for different. The main difference is that the treaty is going through the legislative process to the domestic application. For example, in the UK, the treaty only through legislation in parliament, can in the domestic application. But in Germany, the application of treaties in China do not have to go through the legislative process, but must be considered the treaty is capable of automatically performing the. In USA, take precedence over domestic law principles of treaty. But here the Treaty can only be "self executing treaty or clause". The so-called self executing treaty or refers to the terms of a treaty or treaty of expressly or by their nature without domestic legislation and treaties or clause automatically. Not automatically executed it must go through the necessary legislation, can in the court. Is it right? Self executing treaty or clause, the intention of the parties to the treaty and the surrounding environment to decide. These are to some extent affected or applicable seriously hindered the norms of international criminal law.

  Originally, the International Convention on the norms of international criminal law, the legal effect should be higher than the domestic criminal law, but the domestic judicial organs to deal with criminal evidence is still the domestic criminal law, rather than the norms of international criminal law. Because of the permanent International Criminal Court lacks a suitable international norms, the main task is therefore punish international crimes and transnational crimes by every sovereign state to perform this task.

  The implementation of international conventions, to a large extent, depend on the state's strength. Someone says, international law is "weak law"[3]This is used, conflict of international criminal law, is more than appropriate.

   2.5One of the reasons, international disputes, national contradiction and conflict of international criminal law. During the two World War, many people committed crimes against humanity, such as the crime of aggression, crimes against peace and other crimes, some countries also take national responsibility. Losberne, Shenyang, Taiyuan trial, Nuremberg and Tokyo trial, is the international disputes of international crime, typical examples of which conflict with the international criminal law, it is confirmed that a principle of international law gradually established since 1982 in Paris since the non war convention in international law theory with international practice: launched a war of aggression is a serious international crime, war criminals must be strict punishment. In addition, one of the reasons for the national contradiction is the international criminal crime. The territory of Yugoslavia ethnic conflicts became acute, leading to the territory of the Republic of Bosnia and Herzegovina war continued. So that the former UN Secretary General Boutros Boutros Gali recommended the establishment of the International Tribunal for the trial, found guilty of war crimes in the former Yugoslavia. This proposal has been approved, it reflects the international society to cope with the international criminal law conflict with efforts from one side

3Methods to solve the conflict, international criminal law.

  So, how to solve the conflict of international criminal law? In theory, there are two kinds of methods to solve the conflict of laws, a solution to conflicts, one is the adjustment method of substantive law. Conflict solution is formulated by national or international conflict rules to determine various criminal law shall apply where, in order to solve the conflict of criminal law. The adjustment method of entity law refers to the relevant countries through bilateral or multilateral international treaties, the substantive law to formulate a unified, to directly determine the jurisdiction and solve, avoid conflict of international criminal law. In addition, from a practical point of view, to solve the conflict of international criminal law also should consider its origin

  The above said conflict of international criminal law is the conflict of legal nature of public law, the reason has important significance to resolve the conflict of international criminal law. The nature of the legal conflict solution, in accordance with the law to solve the general. In other words, "rules of application of law to solve the conflicts of law in general only unilateral, i.e. they only within the scope of the law of nations, but does not limit the scope of foreign public law"[4] ( unilateral conflict rules are used to directly apply the laws. The conflict norms of international criminal law, the general is clearly pointed out that the applicable domestic law). In other words, in practice, the above two theoretical methods have some difficulty. Therefore, in international criminal law to punish international crimes is usually through a multilateral treaty provisions of international crime, and by the parties to the Convention in domestic criminal law to sanctions, which the parties to international crime in China Criminal law. Some scholars call "indirect execution mode".[5]So, international criminal law become the source of domestic criminal law

   Origin in the domestic criminal law in international criminal law, is the substantial and procedural aspects related to international criminal law the criminal law norms. There are two types of substantive law: a situation is, the international crime in domestic criminal law, such as the hijacking, the pirate crime, the crime of aggression to be provided; another kind of circumstance is, internationalization of domestic criminal law. In the aspect of procedural law, performance for the stipulation of foreign proceedings of domestic criminal code.

   The indirect adjustment method is not universal. Application of this method are limited, first of all, must be the international crime connotation is consistent understanding of, otherwise, can only be the international crime specific provision, secondly, even if is a unified international criminal law convention, states for some of its interests enforcement is not enough.

As for the formulation of international criminal law and the establishment of the International Criminal Court, the international criminal law has been to. As with the "indirect implementation of this" pattern "relative direct execution mode" in theory is very convenient for the punishment of crime. To this end, the international criminal law successively in Warsaw, Rome, F Russell, Paris, Madrid, Copenhagen held 6 meetings, drafting the accomplice, attempted, dangerous state of general principles of criminal law and on the prohibition of piracy, counterfeiting, drug trafficking, terrorism as criminal law content. As for the creation of the International Criminal Court, the international criminal law also showed great enthusiasm. Provisions in the "Treaty of Versailles" in the establishment of an international criminal court, but not implemented. In 1954 August the trial, punishment to launch and war and war crimes and other crimes according to the Moscow declaration in 1943 October the allies, London charter to determine the establishment of the international military court at the Second World War in Nuremberg and Tokyo war crimes, which is the practice of the establishment of the international criminal court. However, due to the development of international criminal law and the established international court shall involve the problem of sovereignty, so a fashion to formulate international criminal law and the creation of an international criminal court.

  In summary, method to solve the conflict of international criminal law mainly relies on the countries concerned through bilateral and multilateral treaties, then the parties will treaty rules and regulations of international criminal provisions in domestic criminal law enforcement. The main reason for this is the conflict of international criminal law is the conflict of public law nature, restricted by the state sovereignty

Abstract: This thesis analyses reasons of International Criminal Law Conflict as follows: I. Factual basis, II.Inner

Basis,III. Law basis, IV.Special elements. Then the author points out the major method to solveInternational Criminal Law ConflictIs "Indirect-implementation"Mode