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

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

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

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

Synopsis

The Elements of War Crimes will assist the International Criminal Court (ICC) in the interpretation and application of the articles of the ICC Statute defining the crimes under its jurisdiction. These will not only be necessary for the future work of the ICC in interpreting the crimes provisions, but also for national courts, which have primary responsibility in the prosecution of international crimes under the Rome Statute. This commentary provides a critical insight into the travaux prèparatoires of the Preparatory Commission leading to the adoption of the elements of war crimes. It contains an analysis of existing case law related to each war crime in the Statute. It will provide States, judges, prosecutors and international and national lawyers with key background information to implement international humanitarian law in future cases dealing with war crimes under the ICC. A unique, indispensable tool for prosecuting and defense lawyers working in international criminal law.

Excerpt

Foreword by Dr Jakob Kellenberger
President of the International Committee of the Red Cross

Under the regime of the 1949 Geneva Conventions and the 1977 Additional Protocols thereto, States undertook to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, grave breaches of the Geneva Conventions and Additional Protocols as defined in these instruments of international humanitarian law. More specifically, they incurred the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and to bring such persons, regardless of their nationality, before their own courts. They may also, if they prefer, hand such persons over for trial to another High Contracting Party. In addition, States agreed to take measures necessary for the suppression of all acts contrary to the provisions of the Conventions and Protocols other than grave breaches.

The decision to lay down specific rules on the penal repression of serious violations of international humanitarian law was founded on the conviction that a law which is not backed up by sanctions quickly loses its credibility. Those who drafted the Geneva Conventions and Additional Protocols felt that penal repression could best be ensured on the national level, leaving the primary responsibility of defining and setting up an appropriate system to national authorities. Nevertheless, ever since the founding of the United Nations, and especially in view of the trials that took place after the Second World War, there has been an ongoing debate on the need to create a permanent international criminal court competent to try international crimes, including serious violations of international humanitarian law. Despite early enthusiasm, attempts to achieve this aim slowed down considerably and were even suspended, notably owing to the difficult political situation during the Cold War. After the Cold War came to an end, discussions on the issue gained new momentum.

The tragic events that took place in the former Yugoslavia and Rwanda, involving extremely serious violations of international humanitarian law . . .

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