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Author: Taxiarchis Fiskatoris
Required knowledge: Link
Learning objectives: Understanding the foundation and purpose of international criminal justice.
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1. Rome Statute crimes
A conceptual definition of international crimes does not exist in conventional or customary international law. States have preferred to enumerate the jurisdiction of various international or internationalised courts and tribunals, without explicitly labelling the punishable offences as international crimes. Nevertheless, the jurisdictional remit of such institutions cannot be considered a substitute of a comprehensive international criminal code, which does not exist. The Preamble to the Rome Statute implies that the Court’s jurisdiction does not cover all “international crimes”. Scholars usually distinguish between “international crimes lato sensu (in the broad sense)”, and “international crimes stricto sensu (in the narrow sense)” or “core crimes”. According to the mainstream literature, the latter coincide to a great extent with the Rome Statute crimes.
The ICC Statute qualifies the offences within its jurisdiction as “the most serious crimes of concern to the international community as a whole”. Article 5 vests the Court with jurisdiction over four categories of offences, which are analysed in more details in the ICC Elements of Crimes document. According to article 30, “unless otherwise provided”, the mental element of “intent and knowledge” applies to all offences within the Court’s ambit.
1.1 War crimes
War crimes is the oldest category among the four Rome Statute crimes. Individual accountability for war crimes has its origins in the process of progressive criminalisation of customary and conventional rules of international arm conflicts (Hague Law) and humanitarian law (Geneva Law). War crimes generally pertain to the use of prohibited weapons and methods of warfare, and to attacks on protected persons or property.
All World War I Peace Treaties contained a clause regarding the prosecution of “persons accused of having committed violations of the laws and customs of war”. The Charter of the Nuremberg Military Tribunal provided a non-exhaustive catalogue. The exact list was reiterated in Article II(1)(b) of the Control Council Act No.10, which served as the legal basis for the post-war military tribunals of the occupying powers in Germany, as well as in Principle VI of the so-called Nuremberg Principles, as formulated by the International Law Commission (ILC) in 1950.
In its 1954 “Draft Code of Offences against the Peace and Security of Mankind”, the ILC commented that war crimes were relevant not only in cases of declared war, but also in “any other armed conflict which may arise between two or more States, even if the existence of a state of war is recognized by none of them”. In 1968, a UN Convention provided that war crimes are not subjected to statutory limitations, and made a special mention to their relation with the “grave breaches” regime of the 1949 Geneva Conventions. The content of war crimes has continued being elaborated by the ILC in its review of the Draft Code, and in the Statutes of the ad hoc International Criminal Tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR). All of them confirmed that “grave breaches” of the Geneva Conventions give rise to individual criminal accountability. However, not every violation of the Geneva Conventions amounts to a war crime.
The ICTY had explicit jurisdiction over a restrictive list of “grave breaches of the Geneva Conventions of 1949” (art 2), and an illustrative catalogue of “violations of the laws or customs of war”, which followed key provisions of the 1899/1907 Hague Conventions (art.3). The ICTR’s jurisdiction over war crimes was different, given the predominantly internal nature of the Rwandan conflict. Its Statute referred to violations of common article 3 of the Geneva Conventions, and to the 1977 Additional Protocol II (AP II).
The jurisprudence of the ad hoc Tribunals further shed light to the contours of war crimes. In its first case, the ICTY clarified that the necessary prerequisite for war crimes, the existence of an “armed conflict”, was fulfilled whenever “there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State”. That meant, essentially, that war crimes can be committed in both international and internal armed conflicts. A mere resort to force, such as in occasions of riots, does not meet the required level of intensity of “protracted armed violence”, and thus criminal conduct in such contexts does not constitute war crimes.
It should be highlighted that, even in the event of an armed conflict, not every offence is necessarily a war crime. The perpetrator’s ability or decision to commit the offence, the purpose for which it was committed, or the manner in which it was committed must be substantially linked to the conflict. This does not mean that the perpetrators of war crimes cannot be civilians.
War crimes have also been incorporated into article 8 (2) of the ICC Statute. A prominent example of a new addition is a twin clause, applying in both international and non-international conflicts, addressing the war crime of “conscripting or enlisting children under the age of fifteen years” into armed forces or groups, “or using them to participate actively in hostilities”. The norm has its origins in the 1977 Additional Protocols to the Geneva Conventions. According to the Special Tribunal for Sierra Leone, it had already formed part of customary international law before the adoption of the Rome Statute. The selection of the words “conscripting or enlisting” was meant to cover both voluntary and coerced recruitment. The last words of the clause indicate that allowing young children to actively engage in activities closely related to the hostilities in combat or non-combat roles (e.g. by acting as decoys or human shields, finding or carrying food or ammunition for the fighting faction etc.) is equally a war crime.
The enumeration of war crimes in the context of non-international armed conflicts is modest in comparison to that of war crimes in international armed conflicts. By way of illustration, the war crime of “intentionally launching an attack in the knowledge that such attack will cause… widespread, long-term and severe damage to the natural environment…” can only be prosecuted by the Court if linked to an international, and not an internal conflict. Through the amendment procedure of the Rome Statute, the number of punishable war crimes committed in non-international armed conflicts incrementally converges with the one of war crimes perpetrated in international conflicts.
Article 8(1) stipulates that “the Court shall have jurisdiction in respect of war crimes in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes”. This intends to assist the Court to assess the gravity of war crimes occurrences, but does not establish a sine qua non for the exercise of the Court’s jurisdiction. An isolated act may still theoretically amount to war crime. Beyond the prerequisite of the “awareness [by the accused] of the factual circumstances that established the existence of an armed conflict”, and the general rule of article 30 (intent and knowledge), each underlying war crime may have a higher mental element threshold. For instance, the accidental destruction of historic monuments may not qualify as a war crime, but “intentionally directing attacks” against them, provided they are not used for military purposes, most probably will.
1.2 Crimes against humanity
The essential characteristic of crimes against humanity (CAH) is that humanity rather than the individual is their ultimate victim. Some CAH overlap with genocide and war crimes. They differ, though, from genocide because they lack the mental element of special intent to destroy a group, and from war crimes because they apply equally in wartime and peacetime.
Early versions of the notion exist at least since the eighteenth century. In the nineteenth century, it was often employed to stigmatise slavery, the slave trade and colonialism. In 1915, France, Russia, and Great Britain warned the Ottoman Empire that they would hold individually accountable Turkish leaders implicated in “crimes against civilisation and humanity". Indeed, after the end of the Great War, the Treaty of Sevres incorporated the idea, although without using the term. The distinguishing feature of those crimes, in comparison to war crimes, was that they were intended to cover massacres of the Ottoman Empire against its own citizens, and not the enemy, by reason of their Armenian or Greek ethnicity. However, the nexus of such crimes with “the state of war” was peremptory.
The first codification, and successful prosecution of CAH occurred in Nuremberg. Article 6(c) of the IMT Charter provided an enumerative definition. Once again, the primary rationale was the punishment of German officials responsible for atrocities against, and persecutions and deportations of German citizens of Jewish, Roma or Sinti descent. In that respect, the term engulfed what would soon become the crime of genocide. In Nuremberg, the notion failed to discard the war nexus, since it had to be linked with war crimes or crimes against peace. The stated reason was alignment with the principle of legality. An additional pragmatic reason was that the victors of the Second World War wanted to dodge any allusions to their own colonial or deportation practices. The omission by the IMTFE Charter of the world “religious” is of minor importance, given that the other two offences were more relevant in the Pacific theatre.
However, Control Council Law No 10 released the subsequent military tribunals in Germany from the obligation to establish a connection with other crimes under their jurisdiction, and broadened the scope of the concept. The Nuremberg Principles reinstated the mandatory link with war crimes and crimes against peace, which was dropped again by the 1954 ILC Draft Code of Offences against the Peace and Security of Mankind. The latter also detached the concept of genocide, which had already been recognised as an independent crime, thus being able to add persecution on cultural grounds to the CAH concept. The new condition was that CAH had to have been committed, instigated, or tolerated by State authorities.
In 1968, a UN Convention established that statutory limitations do not apply to CAH “whether committed in time of war or in time of peace”. This convention, as well as the 1973 Apartheid Convention, and a remarkable number of General Assembly Resolutions, explicitly declared apartheid a CAH. This was clearly possible due to the systemic change of decolonisation. States from Global South demonstrated a particular interest in the international criminalisation of colonialism-related offences. Nonetheless, States from the Global South had to fight until the very last moment of the Rome Conference in order to achieve the inclusion of apartheid as an underlying CAH.
In 1991, the ILC, reviewing the Draft Code, deemed it proper to rename this category of international crimes “systematic or mass violations of human rights”. It thus laid emphasis on a different distinctive criterion; the systematic and mass-scale nature of the crimes, which expressed their seriousness. The conflict nexus necessarily returned in the ICTY Statute due to the special nature of the Tribunal. However, the Tribunal itself found that such a nexus had become extinct in customary international law. Besides, the ICTR preferred the contextual element of “a widespread or systematic attack against any civilian population on national, political, ethnic, racial or religious grounds”. The ICTY held, though, that discriminatory intent is only necessary for the sub-category of persecutions. Accordingly, the Rome Statute did not adopt either conflict nexus as a contextual element, nor discriminatory intent as general mental element for all CAH.
The ICTY and ICTR Statutes expunged persecution on cultural grounds, but it could be argued that they rendered the CAH concept open-ended by appending “other inhumane acts”, which arguably is a broad term. Furthermore, both Statutes incorporated from the Draft Code the underlying offence of “torture”, and added on “rape”. Article 7 of the Rome Statute has an even longer list. It considerably expanded the crime of persecution to “any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender… or other grounds…”. Moreover, it associated with rape “sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity”. Enforced disappearance of persons, and the crime of apartheid were also included. However, “other inhumane acts” were restricted to “acts of similar character intentionally causing great suffering, or serious injury to body or to mental or physical health”. This did not stray far, though, from the jurisprudence of the ad hoc Tribunals. Forced marriage has been prosecuted by the Special Court for Sierra Leone and the ICC as falling into this category.
The contextual element of CAH in the Rome Statute is different from previous Statutes. They must be “committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack”. Article 7(2) further specifies that the “attack” must be “pursuant to or in furtherance of a state or organizational policy to commit such attack”. According to the Elements of Crimes, “attack” is not necessarily military, but understood as “involving the multiple commission” of an underlying offence. The “policy… requires that the state or organization actively promote or encourage such an attack”.
The proper interpretation of the contextual element has long been troubling judges and scholars. The phrase “any civilian population” excludes isolated acts, but does not mean that the target of the attack must be the entire population of a State or territory. The national, ethnical, racial etc. identity of the population is immaterial, and the perpetrator may share the same nationality with the victims. The victims must be civilians, but the presence of combatants does not deprive the population of its civilian character.
The wording “widespread or systematic” is disjunctive, and the contextual element is met by the existence of either of the two. “Widespread” is usually interpreted as large scale conduct compared to the number of victims, or extending over a large geographical area. “Systematic” points to a repetitive pattern, and excludes accidental or sporadic conduct. It has been suggested that a preconceived plan and policy, not necessarily state-driven, automatically fulfils the “systematic” threshold. The limits of the “organizational” requirement is a matter of contention. The ICC has attempted to set a series of criteria for identifying the policy requirement.
To this date, apart from the Rome Statute, there is not any international convention on crimes against humanity. The ILC has concluded a Draft Treaty, but the General Assembly has not yet taken any further steps. The ICTY declared that CAH are part of customary international law, but there is definitely a number of persistent objectors.
1.4 The crime of aggression
3. Other international crimes
- The first footnote. Please adhere to OSCOLA when formating citations. Whenever possible, provide a link with the citation, ideally to an open-access source.