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This book provides a critical analysis of the definitions of war crimes and crimes against humanity as construed in the Rome Statute of the International Criminal Court. Each crime is discussed from its origins in treaty or customary international law, through developments as a result of the jurisprudence of modern ad hoc or internationalised tribunals, to modifications introduced by the Rome Statute and the Elements of Crimes. The influence of human rights law upon the definition of crimes is discussed, as is the possible impact of State reservations on the underlying treaties that form the basis for the conduct covered by the offences in the Rome Statute. Examples are also given from recent conflicts to aid a ‘real-life’ discussion of the type of conduct over which the International Criminal Court may take jurisdiction.
inescapable, as enshrined, for example, in international humanitarian law (IHL), including the four Geneva Conventions of 1949 and their Additional Protocols of 1977 and 2005; the Rome Statute of the International Criminal Court (ICC); and customary international law ( Brooks, 2015 ). On the other hand, the interview findings of this study reveal a widespread sense of frustration among aid workers over the perceived inefficacy of the law in practice for the protection of humanitarian action. Even in light of the existence of not only international courts and tribunals but
value in international relations, which for him is order, can only be guaranteed by states. The rights of both peoples and individuals have to lie in the communitarian system of a world of nation states signing treaties that are binding (Pacta sunt servanda), not in the ‘woolly’ recognition of non-binding norms, or so-called ‘customary’ international law. Against this classical ‘legalist’ view we have seen many examples of the feeling that the nation state is in many ways an obsolete concept and that other forms of organisation have to be attempted. The ideal of
‘according to customary international law’, although to avoid confusion the Act confirms that the crimes set out in the Rome Statute are crimes according to customary international law. 10 The definitions of crimes in the German Code of Crimes against International Law are broadly similar to those in the Rome Statute, but extend national jurisdiction over several offences restricted to international armed conflict in the Rome Statute, to include those offences when committed in non-international armed conflicts. 11 Differing definitions of
from this source can prove problematic, as they were primarily enacted with thoughts of the prevention of war crimes and gross abuses of human rights, rather than as a basis for their prosecution. 29 Second, there is a vagueness inherent in customary international law, which is also often present in treaties, owing to compromises during negotiations. The Rome Statute, itself a product of political compromises, is not immune from this. 30 Therefore, an in-depth analysis of the crimes contained within Articles 7 and 8 is essential to
humanitarian law in non-international armed conflicts by both State and non-State actors and have expanded the substantive rules of international humanitarian law applicable to such conflicts. 5 Therefore, Article 8 of the Rome Statute is not limited to Common Article 3, but in paragraph 2(e) also contains provisions on other violations of the laws of war applicable in non-international armed conflicts, drawn from both AP II and customary international law. Most of these articles will not be discussed in depth here, as they ‘exactly mirror provisions already contained in
perpetrators of torture to those connected with public officials or acting in a public capacity. The ICTY has primarily considered the definition of torture in the cases of Čelebici, Furundžija and Kunarać . 132 Both the Čelebici and the Furundžija Trial Chambers drew upon the definition of torture contained in the Torture Convention and held that it was ‘representative of customary international law’. 133 This was supported by the Furundžija Appeal Chamber. 134 However, it is notable that the Court in Kunarać emphasised the limited
reintroduced solely for the purposes of the ICTY, ‘[s]ince customary international law no longer requires any nexus between crimes against humanity and armed conflict’. 22 This approach was confirmed in Nikolić , where the Trial Chamber stated that since the Judgement at Nuremberg the concept of crimes against humanity ‘has taken on a certain autonomy as there is no longer any need to determine a link with a crime against the peace or a war crime’. 23 Although this issue caused vigorous debate in the Preparatory Committee, the majority of
international law’ has been described as ‘unnecessary and confusing’ by Paust. 4 Despite the uncertainty surrounding this expression, Fenrick’s explanation that it ‘is merely intended to confirm that the listed acts are serious violations bearing in mind the existing framework of international law’ seems likely. 5 Nevertheless, it should be noted that the United Kingdom’s interpretative declaration to the Rome Statute explains its understanding that the phrase was used ‘to include customary international law as established by State practice and opinio iuris ’, and
Guantánamo Bay, being prompted largely by concerns that images of detainees would have a negative impact on public opinion, were offset by their being couched in an exculpatory rhetoric that eschewed reference to specific points of international law in favour of vague notions of principles and norms. Jack Straw, for instance, maintained that British detainees should be treated in accordance with ‘customary international law’;69 Ben Bradshaw, the Under Secretary of State at the Foreign Office, asserted that detainees were being treated ‘in line with international