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

Group photo of the participants to the expert meeting News

Experts and Practitioners Discuss Reparations by Non-State Armed Groups

18 June 2019

In an expert meeting organized at the Geneva Academy by the School of Law at Queen’s University Belfast, more than 30 academics and practitioners discussed reparations by non-state armed groups during and following armed conflicts.

Read more

Cover page of the War Report 2017 News

The War Report: Armed Conflicts in 2017

22 March 2018

In 2017, 55 situations of armed violence amounted to armed conflicts according to the definitions under international humanitarian law and international criminal law. The vast majority were non-international armed conflicts, as in preceding years. The analysis highlights two salient features: the multiplication of armed non-state actors and unprecedented casualties linked to armed gang violence.

Read more

2017 edition of the Advanced Seminar in IHL for Lecturers and Researchers Training

Advanced Seminar in IHL for Lecturers and Researchers

9-13 September 2019

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.

Read more

UN Peacekeepers on Patrol in Abyei, Sudan Project

Post-Conflict Peacebuilding

Completed in January 2005

This research project aimed to clarify the multiple facets of post-conflict peacebuilding.

Read more

Syria, Aleppo, Sheikh Massoud neighbourhood, near the frontline. Fighters of the Free Syrian Army. Project

‘Foreign Fighters’ and Counter-Terrorism

Completed in January 2014

Against the background of the mobilization of ‘foreign fighters’ for the conflicts in Syria and Iraq, the Geneva Academy undertook various research projects to highlight and clarify a range of international law issues that arise through their participation and measures taken to stem their mobilization.

Read more