Elements of War Crimes under the Rome Statute of the International Criminal Court: Sources and Commentary

By Knut DÖrmann; Louise Doswald-Beck et al. | Go to book overview

Foreword by Philippe Kirsch, QC

Canadian Ambassador to the Kingdom of Sweden; Chairman of the
Preparatory Commission for the International Criminal Court; former
Chairman of the Committee of the Whole, United Nations Diplomatic
Conference on the Establishment of an International Criminal Court

On June 30, 2000, the Preparatory Commission for the International Criminal Court (ICC) adopted by consensus the draft Elements of Crimes, elaborating upon the definitions of genocide, crimes against humanity and war crimes contained in the ICC Statute. The Elements document, to be adopted by the ICC Assembly of States Parties, was the culmination of a remarkable codification process by the international community. The negotiations involved experts from a variety of diverse fields, including military lawyers, human rights lawyers and criminal lawyers, working together to reconcile their conflicting perspectives, priorities and backgrounds, to create a single statement on these serious international crimes.

The development of the Elements of Crimes has proven to be a very useful exercise. Because of the general agreement that the definitions of crimes in the ICC Statute were to reflect existing customary international law, and not to create new law, states relied heavily on accepted historical precedents in crafting the definitions in Articles 6 to 8 of the ICC Statute. This approach ensured the widespread acceptability of the definitions, but resulted in an assortment of provisions drawn from different sources and different eras. As a result, terminology was frequently inconsistent and often outdated. The Elements of Crimes negotiations provided the opportunity to unify these provisions in a single coherent structure, reflecting consistent and modern terminology. It was also an opportunity to resolve difficult problems and ambiguities surrounding the interplay of general legal principles, such as the mens rea requirement for particular provisions. By providing additional clarity, the Elements have helped garner greater acceptance for international criminal law and the ICC.

The ICRC was at the heart of the negotiations on the war crimes provisions, given its respected role as a guardian of international humanitarian law. The extensive ICRC study on the relevant jurisprudence, which forms

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