Removing the Distinction between International and Non-International Armed Conflict in the Rome Statute of the International Criminal Court
Willmott, Deidre, Melbourne Journal of International Law
[This article argues that the distinction between international and non-international armed conflict should be removed from the war crimes provisions of the 1998 Rome Statute of the International Criminal Court. This distinction arises from the history of the development of international humanitarian law culminating in the 1949 Geneva Conventions and the 1977 Additional Protocols to the Geneva Conventions. However, recent developments in treaty law, particularly weapons treaties, indicate a movement away from this distinction. Maintaining the distinction is also likely to cause procedural difficulties for the International Criminal Court when it is prosecuting war crimes in complex factual situations such as those which occurred in the former Yugoslavia. An examination of the differences between war crimes in international and non-international armed conflict demonstrates that, with the exception of those which by their nature are limited to international armed conflict, removal of the distinction can and should be a realistic objective of the 2009 Rome Statute Review Conference.]
CONTENTS I Introduction II Background III The Rome Statute of the International Criminal Court A Article 8 of the Rome Statute 1 Weapons Likely to Cause Superfluous Injury or Unnecessary Suffering 2 Other Crimes Limited to International Armed Conflict (a) Indiscriminate Attacks and Damage to the Environment. (b) Attacking Undefended Places Which are Not Military Objectives (c) Improper Use of Flags and Markings (d) Transfers by Occupying Powers (e) Human Shields (f) Starvation (g) Compelling a Protected Person to Serve in Armed Forces (h) Concluding Comments IV Procedural Aspects of the Distinction between International and Non-International Armed Conflict A Distinction between 'Grave Breaches' and 'Serious Violations of Common Article 3' B Distinction between 'Other Serious Violations' in International Armed Conflict and Non-International Armed Conflict V Thresholds VI Conclusion [I]nternal conflicts now [claim] many more casualties than wars between States. (1) What is inhumane, and consequently proscribed, in international wars, cannot but be inhumane and inadmissible in civil strife. (2)
'Dum-dum' or expanding bullets, (3) poison and poisoned weapons, (4) asphyxiating gas (5) and weapons of a nature to cause 'unnecessary suffering' (6) have long been banned in international armed conflict. However, with internal (7) conflicts now claiming many more lives than international conflicts, it is disturbing that war crimes provisions outlined in the 1998 Rome Statute of the International Criminal Court do not apply to the use of these weapons in internal armed conflict, (8) The Rome Statute established the International Criminal Court ('ICC') and gives it jurisdiction to prosecute war crimes in international and non-international armed conflict. (9) Yet, the Rome Statute provisions enforcing regulation of the use of weapons in warfare apply only in the context of international armed conflict. (10) These are not the only war crimes limited to international armed conflict. Others include launching indiscriminate attacks likely to cause incidental loss of life, injury to civilians or damage to civilian objects; widespread, long-term and severe damage to the environment; attacking undefended places which are not military objectives; improper use of flags and markings; use of human shields; and the use of starvation as a method of warfare. (11) These acts, committed in the course of non-international armed conflict, cannot be prosecuted by the ICC as war crimes.
In general, the Rome Statute made much needed progress in the area of war crimes by giving the ICC power to punish genocide and crimes against humanity even when not committed in the context of armed conflict, (12) and by including war crimes committed both in international and internal armed conflict. …