Elements of War Crimes under the Rome Statute of the International Criminal Court - sources and commentary
28-03-2003 PublicationRef. 0-521-81852-4 Knut Dörmann
This is an important publication which provides a critical insight into the "travaux préparatoires" of the Preparatory Commission leading to the adoption of the elements of war crimes. Also containing an analysis of existing case law related to each war crime in the Statute, it is a unique tool particularly for judges, prosecutors and international and national lawyers in interpreting the war crimes provisions. With contributions by Louise Doswald-Beck and Robert Kolb.
Background
«The establishment of the [International Criminal ] Court has at last provided international humanitarian law with an instrument that will remedy the shortcomings of the current system of repression, which is inadequate and all too often ignored. Indeed, the obligation to prosecute war criminals already exists, but frequently remains a dead letter. It is therefore to be hoped that this new institution, which is intended to be complementary to national criminal jurisdictions, will encourage States to adopt the legislation necessary to implement international humanitarian law and to bring violators before their own court s.»
(Statement by the International Committee of the Red Cross (ICRC), United Nations General Assembly, 53rd session, Sixth Committee, item 153 of the agenda, New York, 22 October 1998)
The Rome Statute of the International Criminal Court is a milestone in the international community's fight to end impunity for war crimes, genocide and crimes against humanity. As pointed out by the ICRC in the same statement quoted above, «[b ] y adopting this treaty the great majority of States clearly demonstrated their resolve to put an end to the impunity enjoyed by the perpetrators of the most heinous crimes, and hence to deter the commission of further violations.»
The Rome Statute entered into force on 1 July 2002. The court will be complementary to national criminal jurisdictions. Though the States continue to have the primary role to play in prosecuting war criminals, the ICC is being set up precisely to step in for national courts when these are unwilling or genuinely unable to do so. Then will the ICC be able to exercise its jurisdiction.
Purpose and use of the publication
In Articles 6, 7 and 8, the Rome Statute sets out a list of crimes over which the ICC will have jurisdiction: genocide, crimes against humanity and war crimes. In order to provide greater certainty and clarity concerning the content of each crime, a preparatory commission (PrepCom), which was mandated by the UN General Assembly, finalised a document on elements of crimes (EOC). The EOC, which were adopted in the meantime by the Assembly of States Parties, will guide the future judges and will therefore be of crucial importance for the work of the ICC in the interpretation of the provisions on crimes.
The ICRC was active throughout the process of negotiating the Rome Statute and the subsequent instruments. In part icular, in order to assist the PrepCom, the ICRC prepared a study of existing case law and international humanitarian and human rights law instruments relevant to drafting the elements of war crimes. In preparing the study, the ICRC played its internationally recognised role as guardian of international humanitarian law. The aim of the study was to provide the government delegations taking part in the PrepCom with the necessary legal background and to prepare a means of accurately interpreting war crimes as defined in the Rome Statute.
The ICRC's work was greatly appreciated by an overwhelming number of delegations and considerably influenced the outcome of the negotiations. Several delegations indicated in particular that the sources quoted in the study would be of enormous assistance to future judges, not only those of the ICC but, more importantly, national judges who will have to apply international humanitarian law under their national legislation. The ICRC was repeatedly encouraged to publish the study.
Against this background, the ICRC began preparing the present commentary, which is essentially an update of the study submitted to the PrepCom. The commentary follows the same structure for each war crime under the Rome Statute:
1. text adopted (this section replaced the original section entitled " Results from the sources " );
2. travaux préparatoires/understandings of the PrepCom (new section); and
3. legal sources relating to particular war crimes under the heading " Legal basis of the war crime " (updated section including the review of existing case law and relevant instruments of international humanitarian law).
The purpose of the commentary is to provide judges, prosecutors and lawyers with the background information needed to implement international humanitarian law properly in future prosecution of war crimes under the Rome Statute. Lack of knowledge of the issues in international humanitarian law is often a feature of national trials and demonstrates the need for something of this kind. Since the ICC is only complementary to national jurisdictions, reference texts like the present commentary will be an important tool for lawyers at the national level.
Neither the definition of the crimes in the Rome Statute nor the document on EOC as adopted by the PrepCom provides a complete picture, which is necessary for an accurate and faithful interpretation of the crimes. Elements of War Crimes under the Rome Statute of the International Criminal Court - Sources and Commentary brings together all of the essential information and fills in the gaps, thereby providing judges, prosecutors and defence lawyers at both international and national levels with a complete tool to apply international humanitarian law correctly.
