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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
the principle of humanitarian intervention generally combine four elements. A humanitarian intervention (a) involves the use of military force (b) by one state on the territory of another (c) in order to protect people in danger of grave harm (d) when the state within the jurisdiction of which they reside cannot or will not do so. 4 Is there a right of humanitarian intervention, so defined? The issue is moot. There is, however, some agreement that humanitarian intervention was lawful under customary international law at least prior to the creation of the United
Legality of Humanitarian Intervention’, Cardozo Journal of International and Comparative Law 3 (1995), 1–8, at p. 1; Jean-Pierre L. Fonteyne, ‘The Customary 99 04 Crimes Against Humanity 098-112 3/12/10 10:11 Page 100 CRIMES AGAINST HUMANITY Is there a right of humanitarian intervention, so defined? The issue is moot. There is, however, some agreement that humanitarian intervention was lawful under customary international law at least prior to the creation of the United Nations. According to one scholar, ‘weighty authorities’ supported that conclusion.5 It was
any case on retributive grounds. (1) My own view on whether there is a basis in international law for humanitarian intervention in situations of this kind is that there is. As I have already stated § this view at some length, I will be brief on the present occasion. There is not only a right, there is a duty, of humanitarian intervention when a government is committing mass atrocities against a civilian population. This can be established by reference both to customary international law and to the doctrine of A Responsibility to Protect, underwritten by the UN
‘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
international law. Whereas the legalistic discourse espouses a perspective of change and progress with regard to legal provisions, interventionism emphasises continuity, thereby taking a rather conservative stance on international law. One of the often-repeated interventionist arguments against particular proposals made at the Rome Conference as well as against the final Rome Statute was that they contradicted established provisions of customary international law.3 This points to the fact that legalists and interventionists had a different understanding of what they intended
common view when she wrote that the judges at Nuremberg had left the new crime in a ‘tantalizing state of ambiguity’.1 Its subsequent evolution, too, ‘has not been orderly’,2 as is not altogether surprising for what began life as a concept in customary law. There is a wide scholarly consensus about the resulting state of affairs. ‘While crimes against humanity are clearly enshrined today in customary international law,’ one commentator has said, ‘their precise definition is not free of doubt’.3 ‘The scope of crimes against humanity’, writes another, ‘is difficult 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