New Publication Discusses the Harmonization of War Crimes Under the Rome Statute

Judges at the ICC Judges at the ICC

14 March 2019

Under the Rome Statute, war crimes can be committed in international armed conflicts (IACs) and in non-international armed conflicts (NIACs). However, the lists granting the International Criminal Court (ICC) with jurisdiction over war crimes in each type of conflict are not the same.

Indeed, the ICC does not have jurisdiction over the following ten war crimes if they are committed in a NIAC: (1) directing attacks against civilian objects; (2) disproportionate attacks; (3) attacks against undefended places; (4) using human shields; (5) improper use of flags, emblems, and uniforms; (6) employing weapons or methods of warfare listed in an annex to the Statute; (7) using starvation as a method of warfare; (8) killing or wounding persons who are hors de combat; (9) depriving nationals of a hostile power of legal rights and action; (10) compelling nationals of a hostile power to participate in military operations.

‘Most contemporary armed conflicts are NIACs and many of the mentioned war crimes also occur in NIACs. As such, the fact that the ICC does not have jurisdiction over them in NIACs implies a protection gap for victims and impunity for the perpetrators’ underlines Marco Sassòli, Director of the Geneva Academy.

Our new Research Brief Harmonizing War Crimes Under the Rome Statute discusses the need to harmonize the list of war crimes that can be committed in IACs with those that can be committed in NIACs. Written by Patrick S. Nagler – an alumnus of our LLM and a Research Assistant at the University of Geneva – it examines whether and the extent to which customary and/or conventional international humanitarian law (IHL) and international criminal jurisprudence provide a sound legal basis to do so.

Extending the ICC’s Jurisdiction over Eight War Crimes in NIACs, Including Direct Attacks against Civilian Objects and Starvation as a Method of Warfare

The Research Brief concludes that in most, but not all cases, the discrepancy between the war crimes over which the ICC has jurisdiction in IACs and NIACs is no longer justified.

‘Developments in IHL and international criminal law since the adoption of the Rome Statute call for, in most cases, the harmonization of the two lists, which would also bolster the fight against impunity by facilitating the prosecution of atrocities and the respect of IHL in all conflicts’ explains Marco Sassòli.

The Research Brief recommends that the ICC should also have jurisdiction over the following war crimes in NIACs and details how to do so: direct attacks against civilian objects; starvation as a method of warfare; human shields; improper use of flags of truce, UN or enemy military flags, insignia, or uniforms, or the distinctive emblems; disproportionate attacks; attacking undefended places; and employing weapons or methods of warfare that cause unnecessary suffering or superfluous injury or which are inherently indiscriminate as listed in the annex of the Statute.

While the necessary legal basis exists to harmonize the war crime of killing or wounding persons who are hors de combat, the publication does not recommend harmonization as the Rome Statute already sufficiently criminalizes such conduct in NIACs through another provision.

Finally, the brief concludes that there is no legal basis to harmonize two of the war crimes under examination – depriving nationals of a hostile power of legal rights and action in courts and compelling them to participate in military operations.

MORE ON THIS THEMATIC AREA

Homepage of the Rule of Law in Armed Conflict Portal News

A New Rule of Law in Armed Conflicts Online Portal

7 February 2017

We are launching an updated version of our Rule of Law in Armed Conflicts (RULAC) portal, an online database that identifies and classifies all situations of armed violence that amount to an armed conflict under international humanitarian law (IHL). The updated version includes all conflicts that have emerged over the last five years and are still ongoing.

Read more

Wall with PKK tags News

Kurdish Military Formations in Middle Eastern Battlefields

23 November 2017

Our new publication Kurdish Military Formations in Middle Eastern Battlefields provides an overview of Kurdish history, of current dynamics of the Kurdish question, as well as of Kurdish forces and armed groups in the Middle East. It also analyses how recent developments in the region, including the emergence and fight against the Islamic State (ISIS), are impacting on Kurdish armed groups and alliances.

Read more

2017 edition of the Advanced Seminar in IHL for Lecturers and Researchers Training

Advanced Seminar in IHL for Lecturers and Researchers

9-13 September 2019

Organized by the International Committee of the Red Cross (ICRC) and the Geneva Academy,  this advanced seminar aims to enhance the capacity of lecturers and researchers to teach and research international humanitarian law contemporary issues, addressing both substantive and pedagogical aspects.

Read more

UN Peacekeepers on Patrol in Abyei, Sudan Project

Post-Conflict Peacebuilding

Completed in January 2005

This research project aimed to clarify the multiple facets of post-conflict peacebuilding.

Read more

UN Peacekeepers on Patrol in Abyei, Sudan. Zambian peacekeepers from the United Nations Mission in Sudan (UNMIS) patrol streets lined with looted items awaiting collection in Abyei, the main town of the disputed Abyei area on the border of Sudan and newly Project

The Intersection between Transitional Justice, International Security and Responsibility to Protect

Started in February 2017

This project aims at mapping various existing accountability mechanisms, in the context of military interventions, through the lens of the requirements of a transitional justice process in order to identify possibilities and gaps.

Read more