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.
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.
We have now added to our Rule of Law in Armed Conflicts (RULAC) online portal a detailed analysis and legal classification of the non-international armed conflicts that take place in the Central African Republic since December 2012.
Professor Marco Sassòli has been appointed as the new Director of the Geneva Academy. He takes up this role following the retirement of Professor Robert Roth.
This discussion follows the publication of the Universal Jurisdiction Annual Review 2019 by TRIAL International which focuses on the challenges of investigating and prosecuting mass crimes remotely.
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.
Truth Commissions are by now an integral part of the transitional justice vocabulary and practice. The 2019 Spring School will provide a comprehensive, multidimensional and practical examination of this transitional justice mechanism, shedding light on both its aims and the practical challenges it has met or is likely to meet.
As an annual publication, The War Report provides an overview of contemporary trends in current armed conflicts, including key international humanitarian law and policy issues that have arisen and require attention.
This project intends to clarify the conditions of accountability for international crimes by providing a detailed assessment of the customary international law status of, in particular, the actus reus and mens rea elements of modes of liability: planning, instigating, conspiracy, direct and indirect perpetration, co-perpetration, the three forms of joint criminal enterprise, the doctrine of common purpose under the Rome Statute of the International Criminal Court, command responsibility and aiding and abetting.