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

Portrait of Sonali Wanigabaduge News

MAS in Transitional Justice, Human Rights and the Rule of Law: What our Students Say

6 January 2020

In this interview, Sonali Wanigabaduge, who is enrolled in our Master of Advanced Studies (MAS) in Transitional Justice, Human Rights and the Rule of Law, tells us about the programme and life in Geneva.

Read more

Group photo of LLM students during their study trip News

Six Intense Days in the Balkans to Grasp with Current Humanitarian and Human Rights Challenges

24 February 2020

As part of the programme’s annual study trip, students of our LLM in International Humanitarian Law (IHL) and Human Rights travelled to Belgrade, Sarajevo and Budapest where they met experts and institutions who work in the fields of IHL, international human rights law and international criminal law.

Read more

Mali, Gao:  Gao region, Ansongo cercle, Tessit. ICRC dissemination session about international humanitarian law for an armed group. Event

Generating Compliance with Humanitarian Norms: The Less-Explored Avenues

26 May 2020, 14:30-16:00

Join us online to discuss innovative approaches to generate respect for international humanitarian law during armed conflicts.

Read more

View of Villa Moynier Event

Open House: Executive Master in International Law in Armed Conflict

16 June 2020, 12:00-14:00

Join us for our open house to learn more about this part-time programme designed professionals, meet staff, students and alumni, and discuss career opportunities.

Read more

Putis, Peru. The clothes of missing child found in a mass grave close to the village at the exhibition organized for the relatives of victimes. The family will be able to identify their missing relatives. Project

INVESTIGATING IN SITUATIONS OF ARMED CONFLICT: Law, Policy and Good Practice

Completed in January 2014

This project, initiated in 2014 by the Swiss Chair of International Humanitarian Law, Professor Noam Lubell, intends to identify, via expert meetings and research, a set of best practices that states should apply when they investigate or examine alleged violations or misconduct in situations of armed conflict.

Read more

On the screen, on the screen is Peter Maurer, President of the International Committee of the Red Cross (ICRC), briefing the Security Council on the 70th Anniversary of Geneva Conventions. Project

International Humanitarian Law and the United Nations Security Council

Started in January 2020

Read more

Cover page of the Annual Report 2019 Publication

Annual Report 2019

published on May 2020

Read more

Cover of the publication Publication

From Words to Deeds: A Study of Armed Non-State Actors’ Practice and Interpretations of International Humanitarian and Human Rights Norms

published on December 2019

Annyssa Bellal, Pascal Bongard, Ezequiel Heffes

Read more