10
Art 3 common: In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:
1. Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.
To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:
(a) Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
(b) Taking of hostages;
(c) Outrages upon personal dignity, in particular humiliating and degrading treatment;
(d) The passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.
2. The wounded and sick shall be collected and cared for.
In its background documents in preparation for the drafting of that instrument, the ICRC considered that internal disturbances are situations in which 'there is no non-international armed conflict as such, but there exists a confrontation within the country, which is characterized by a certain seriousness or duration and which involves acts of violence. (vol. V, Protección para las víctimas de los conflictos armados que no son internacionales, 1971, p. 80).
'[…]In view of the fact that about 80% of the victims of armed conflicts since 1945 have been victims of non-international conflicts and that non-international conflicts are often fought with more cruelty than international conflicts. The aim of the present Protocol is to extend the essential rules of the law of armed conflicts to internal wars'. (AP II) '[…] the great majority of modern-day armed conflicts are internal, while most of the rules [..] are formally applicable only to international armed conflicts. For the average person, this is completely absurd. Indeed, how can one claim the right to employ against one's own population means of warfare which one has prohibited for use against an invader?'(ICRC Study, Customary International Humanitarian Law 2005).
1. 4. The situations referred to in the preceding paragraph include armed conflicts which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination, as enshrined in the Charter of the United Nations and the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations.
According to Christopher Greenwood, Additional Protocol II «goes a long way to putting flesh on the bare bones of common Article 3 of the 1949 Geneva Conventions».
This urgent need can be understood by looking at the situations in Colombia, Sri Lanka and Darfur in which the internal conflict lasts respectively for 48 years, 25 years and 10 years.
Expressing the position of the ICRC on the need to distinguish between situations of international armed conflict and situations of non-international armed conflict, Mrs. Daniele Louise Bujard stated that: «In order to take into account the fundamentally different political aspects which existed between international and non-international armed conflicts, the ICRC had respected the distinction, well established in public international law, between those armed conflicts, in conformity with the wish expressed by the vast majority of experts consulted. Additional Protocol II applies to non-international armed conflicts which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol».
Prosecutor v. Tadic, case No. IT-94-1-AR72, Decision on the defence motion for interlocutory appeal on jurisdiction, 2 October 1995
According to Sonja Boelaert-Suominen, legal adviser at the Office of the Prosecutor, «the definition of armed conflict suggested by the Appeals Chamber covers not only the classic examples of (a) an armed conflict between two or more states and (b) a civil war between a state on the one hand, and a non-state entity on the other. It clearly encompasses a third situation, (c) an armed conflict in which no government party is involved, because two or more non-state entities are fighting each other».
The International Criminal Tribunal for Rwanda uses the same test as the ICTY to 'evaluate both the intensity and organization of the parties to the conflict' for each of their cases.
Of particular interest is the ICTY judgment rendered in the Limaj case and the Inter-American Commission on Human Rights in the Tablada case . In the first one the Trial Chamber had to determine whether the conflict in Kosovo in 1998 between the Kosova Liberation Army (KLA) and the governmental forces amounted to an armed conflict capable of falling within the ambit of Article 3 of the ICTY statute. The defence in this case submitted inter alia that, in order to determine the existence of an armed conflict, the Chamber should consider 'the insurgents' status as belligerents and whether the insurgents have a state-like organization and authority to observe the rules of war' and submitted in order to be bound by the laws of armed conflicts, 'a party to the conflict must be able to implement international humanitarian law and, at the bare minimum, must possess a basic understanding of the principles laid down in common Article 3 and that it must be established that the KLA 'was sufficiently organized to carry out continuous and persistent military operations and to impose discipline on its troops. The Trial Chamber rejected all these arguments and took the view that 'some degree of organization by the parties will suffice to establish the existence of an armed conflict'. In the second one The Commission needed to determine whether the 30-hour-long armed confrontation at the Tablada base between attackers and Argentine armed forces was 'merely an example of internal disturbances or tensions or whether it constituted a non-international armed conflict within the meaning of common Article 3'.
'For some States, the inclusion of provisions on war crimes in non-international armed conflicts was considered crucial, going to the very relevance of the Court; the "raison d'etre", "credibility", and "integrity and rationale" of the Court depended on it'. C. S. Sivakumaran, Identifying an armed conflict not of an international character in Stahn and G. Sluiter, The emerging practice of the international criminal court, Martinus Nijhoff, 2009, pag 263.
Before the ICC, in the situation in Darfur two accused have been charged with the crime of "intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflict".
The International Criminal Tribunal for Rwanda (ICTR), however, analyses in detail whether the perpetrator in question forms part of the class of potential perpetrators of serious violations of common Article 3 or Protocol II. The Trial Chamber in the Akayesu judgment affirmed: the categories of persons covered by these terms (members of armed forces) should not be limited to individuals of all ranks belonging to the armed forces under the military command of either belligerent parties but should be interpreted in their broadest sense, to include individuals who are legitimately mandated and expected as public officials or agents or persons otherwise holding public authority de facto representing the Government to support or fulfill the war efforts . Akayesu trial, paras. 630–34.
The courts have clarified that the link may be direct, when the criminal fact is committed during the fighting or the taking of a city during armed conflict, so it is sufficient that the event took place during the fighting; or indirect, when the fact even in the absence of temporal or geographical proximity is committed in close connection with the armed conflict, as when can be demonstrated that the agent has acted in support of or under the coverage of the conflict; here it should be established that the presence of conflict has played a significant role in the criminal behavior of agent, in the material capacity or manner of execution, taking into account certain parameters (the agent was a fighter, the victim was not fighting or was of the other faction, the act serves in the military campaign or in the context of the official duties of the agent).
For conduct to constitute a war crime, it must amount to a violation of treaty or customary IHL applicable to the particular accused at the time of the offence. The prosecution therefore needs to identify which law was applicable at the time of the alleged offence, whether that is as a result of a treaty that had been ratified or a customary norm.
Both the ICTY and ICTR Statutes provide that only "serious" violations of the laws and customs of war come within their jurisdiction and that only such violations may result in individual criminal responsibility pursuant to their Statutes. This requirement excludes violations of many technical regulations and other elements contained in IHL.
An IHL violation is serious if it constitutes a breach of a "rule protecting important values, and the breach must involve grave consequences for the victim". All grave breaches of the Geneva Conventions are regarded as serious violations of IHL. For the statute of the ICC the reference to a gravity threshold is a more complicated one and necessitates a more detailed explanation that would go beyond the purpose of this essay.
Whatever the violation of IHL being charged, whether customary or treaty-based, the breach of the rule must entail individual criminal responsibility. It is not essential for treaty provisions to expressly state that breaches will result in criminal responsibility as long as customary international law supports the application of criminal responsibility. For example, Common Article 3 does not expressly provide for individual criminal responsibility. However the ICTY Appeals Chamber has found that, under customary international law, persons can be criminally charged for violations of this article. Similarly, whereas AP II did not expressly provide for individual criminal responsibility, the serious violation of certain of its most important provisions was criminalized under the ICTR, SCSL and ICC Statutes so as to reflect international customary law.
It has been argued that the existence of armed conflict had significance only on the material level or also in the psychological one. Eventually it was decided to give it relevance but more weakly than the rule in Article 30 of the ICC Statute, it is sufficient that the agent has the awareness only of the factual circumstances that constitute the existence of a conflict in general.
Judgment, Prosecutor V. D. Kunarac, R. Kovac e Z. Vukovic, Appeal Chamber, 12 June 2002, par 58 and 59
Art 30.3 For the purposes of this article, "knowledge" means awareness that a circumstance exists or a consequence will occur in the ordinary course of events. "Know" and "knowingly" shall be construed accordingly.
L. Zegveld. Accountability of Armed Opposition Groups In International Law, pag 15.
Cassese disagrees with this view as being based 'on a misconception of the relationship between international and domestic law', see A. Cassese 'The status of rebels under the 1977 Geneva Protocol on non international armed conflicts', 1981.
Cassese believes that common Article 3 does confer rights and obligations on both sides. See A. Cassese, 'La guerre civile et le droit international' (1986)
ICTY Statute Article 2: The International Tribunal shall have the power to prosecute persons committing or ordering to be committed grave breaches of the Geneva Conventions of 12 August 1949, namely the following acts against persons or property protected under the provisions of the relevant Geneva Conventions:
(a) wilful killing;
(b) torture or inhuman treatment, including biological experiments;
(c) wilfully causing great suffering or serious injury to body or health;
(d) extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly;
(e) compelling a prisoner of war or a civilian to serve in the forces of a hostile power;
(f) wilfully depriving a prisoner of war or a civilian of the rights of fair and regular trial;
(g) unlawful deportation or transfer or unlawful confinement of a civilian;
(h) taking civilians as hostages.
ICTY Statute Article 3: The International Tribunal shall have the power to prosecute persons violating the laws or customs of war. Such violations shall include, but not be limited to:
(a) employment of poisonous weapons or other weapons calculated to cause unnecessary suffering;
(b) wanton destruction of cities, towns or villages, or devastation not justified by military necessity;
(c) attack, or bombardment, by whatever means, of undefended towns, villages, dwellings, or buildings;
(d) seizure of, destruction or wilful damage done to institutions dedicated to religion, charity and education, the arts and sciences, historic monuments and works of art and science;
(e) plunder of public or private property.
ICTR Statute Article 4: The International Tribunal for Rwanda shall have the power to prosecute persons committing or ordering to be committed serious violations of Article 3 common to the Geneva Conventions of 12 August 1949 for the Protection of War Victims, and of Additional Protocol II thereto of 8 June 1977. These violations shall include, but shall not be limited to:
(a) Violence to life, health and physical or mental well-being of persons, in particular murder as well as cruel treatment such as torture, mutilation or any form of corporal punishment;
(b) Collective punishments;
(c) Taking of hostages;
(d) Acts of terrorism;
(e) Outrages upon personal dignity, in particular humiliating and degrading treatment, rape, enforced prostitution and any form of indecent assault;
(f) Pillage;
(g) The passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilised peoples;
(h) Threats to commit any of the foregoing acts.
The crime of enlisting child soldier under the age of fifteen represents an exception because it can be committed against persons belonging to the same party.
S. Mancini , I crimini di guerra, in E. Mezzetti (a cura di), Diritto penale internazionale, Giappichelli, Torino, 2010.
Declarations pursuant to Article 12.4 of the statute were made by France and Columbia upon ratification.
UNSCR 955 Establishing the International Tribunal for Rwanda, UN Doc. S/RES/955 (1994), 8 November 1994.
T. Meron, 'Humanitarian Law', see also 'Crimes under the Jurisdiction of the International Criminal Court', in Herman A.M. von Hebel et. al ., Reflections.
M. Sassoli and A. Bouvier, How Does Law Protect in War ?, vol. I, p. 110.
W. Schabas, International Criminal Court, p. 54
International Criminal Court, Prosecutor v. Lubanga Dyilo, Case No. ICC-01/04-01/06-803, Decision on the confirmation of charges (Pre-Trial Chamber I), 29 January 2007
M. Benzing, 'The complementarity regime of the ICC: international criminal justice between state sovereignty and the fight against impunity', 7 Max Planck yearbook of United Nations law, 2003
Article 8.2.e).iii) prohibits: intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the UN, as long as they are entitled to the protection given to civilians or civilian objects under the international law of armed conflicts.
E. La Haye, War crimes in internal armed conflicts
M. Kaldor, New and Old Wars: Organised Violence in a Global Era, Stanford University Press, 1999
The Gaza Strip following the Israeli withdrawal illustrates those difficulties with particular acuity.
The United Nations Organization Mission in the Democratic Republic of Congo (MONUC), for example, provided military support for the government of the Democratic Republic of the Congo in order to repel the offensives launched by the armed opposition.
One recent example is that of Lebanon in the summer of 2006. It may be recalled that a high-intensity armed conflict had begun on 12 July following various attacks by Hezbollah's military component on positions and villages in Israeli territory. For instance, eight Israeli soldiers had been killed in the course of those operations and two others taken captive. The Israeli authorities retaliated by launching a ground, air and sea offensive on Lebanon. The Commission of Inquiry set up by the United Nations Human Rights Council considered that an international armed conflict had taken place, although, in its view, the Lebanese armed forces had never taken part in the fighting. (see Commission of Inquiry on Lebanon, Report pursuant to Human Rights Council resolution S-2/1, A/HRC/3/2, 23 November 2006).
See Article 7 of the 1993 Convention on the Prohibition of Development, Production, Stockpiling and Use of Chemical Weapons.
See Article 14.2 which provides: 'The measures envisaged in paragraph 1 of this article include appropriate measures to ensure the imposition of penal sanctions against persons who, in relation to an armed conflict and contrary to the provisions of this protocol, willfully kill or cause serious injury to civilians and to bring such persons to justice.'
Article 9.2 of the 1994 Convention on the Safety of UN and Associated Personnel.
See Articles 15, 17 and 22 of the Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict.
War crimes in non international armed conflicts Giulia Guagliardi
Introduction
It is important to highlight some important steps of the evolution in the notion of armed conflict in general and more specifically in the definition of non international armed conflict as they constitute the legal basis for the application of any of the dispositions related to war crimes.
1.1 From "War" to "Armed conflict"
The 1949 Geneva Diplomatic Conference on the laws of war replaced the old concept of 'war' introducing the concept of 'armed conflict' for the first time. Through this semantic contribution, those who drafted those instruments wanted to show that the applicability of international humanitarian law was no longer based solely on the subjectivity inherent in the recognition of the state of war, but depended on verifiable facts in accordance with objective criteria and the principle of effectiveness. Prior to that date, it had been generally agreed that it was the sovereign right of each government in power to maintain internal order and to punish the insurgents in accordance with its penal laws.
By virtue of common Article 2(1), the 1949 Geneva Conventions apply to 'all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them'. The 'High Contracting Parties' mentioned in this text are sovereign entities. Depending on the case in question, these situations may take the form of a direct conflict between States or of intervention in a previously existing internal conflict. In the latter hypothesis, the conflict is 'internationalized'.
The concept of non-international armed conflict in humanitarian law must be analyzed on the basis of two main treaty texts: Article 3 common to the 1949 Geneva Conventions and Article 1 of Additional Protocol II of 1977.
1.2 Art 3 common
Prior to the formulation of the four Geneva Conventions of 1949, there existed no substantive provision of international humanitarian law specific to situations of non-international armed conflict. The 'Marten's clause', a provision situated in the preamble of the Hague Regulations of 1907, stipulated that in cases not included in the Regulations 'the inhabitants and the belligerents remain under the protection and the rule of the principles of the law of nations'. Article 3 common to the four Geneva Conventions of 1949 was the first provision of its kind to deal specifically with humanitarian protection in situations of non-international armed conflict.
When a specific treaty provision was adopted to regulate certain aspects of internal armed conflicts, it became important to define the contours of this category. This definition proved to be a very controversial one as the internal armed conflict has the characteristics of a chameleon.
This provision begins with a negative expression, dealing with armed conflict 'not of an international character'. It thus refers back implicitly to common Article 2, which, as stated above, deals with conflicts between States. Armed conflicts that are not of an international character are those in which at least one of the parties involved is not governmental. Depending on the case in question, hostilities take place either between one (or more) armed group(s) and government forces or solely between armed groups.
Common Article 3 also assumes that an 'armed conflict' exists when the situation reaches a level that distinguishes it from other forms of violence to which international humanitarian law does not apply, namely 'situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature'. The threshold of intensity required in that case is higher than for an international armed conflict.
1.3 Additional Protocol II
In 1977, driven by developments in armed conflict subsequent to the Second World War, there was a major revision and updating of the Geneva Conventions. Two protocols to the Conventions, one dealing with international armed conflict, the other dealing with non-international armed conflict, were adopted at a diplomatic conference convened by the Swiss Federal Council.
The significance of Additional Protocol I to the present discussion concerns the inclusion of wars of national liberation as situations of international armed conflict.
Until the adoption of Additional Protocol II by the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law, common Article 3 encapsulated the main body of international humanitarian law governing situations of non-international armed conflict, hence its description as a 'convention in miniature'.
Government and Red Cross experts consulted by the ICRC since 1971 had confirmed the urgent need to strengthen the protection of victims of non-international armed conflicts by developing international humanitarian law applicable in such situations. The idea of formulating two protocols instead of a single instrument relating to the protection of all situations of armed conflict was one that was strongly supported by representatives of the ICRC at the Diplomatic Conference.
1.4 International Tribunal's jurisprudence: Tadic case
On 2 October 1995 the Appeals Chamber in the Tadic case issued its Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction (Tadic Jurisdiction Decision). The context of this decision was the trial of Duško Tadic, a Bosnian Serb charged with crimes against humanity, grave breaches of the Geneva Conventions and violations of the customs of war under Articles 2, 3 and 5 of the ICTY Statute. The Defence argued that the Tribunal lacked subject-matter jurisdiction to try Tadic for war crimes. This preliminary issue concerned the status of the situation in Bosnia and Herzegovina from around 24 May until 30 August 1992, the period of time during which it was alleged Tadic committed war crimes including murder, forcible sexual intercourse and abuse of prisoners. The defence for Tadic contended that 'there did not exist a legally cognizable armed conflict – either internal or International. This argument was based on the fact that 'the conflict in the Prijedor region (where the alleged crimes are said to have taken place) was limited to a political assumption of power by the Bosnian Serbs and did not involve armed combat'.
The Appeals Chamber rejected the argument of the appellant on the grounds that 'the temporal and geographical scope of both internal and international armed conflicts extends beyond the exact time and place of hostilities'.
'An armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State' .
This description of armed conflict represents a very significant development of international humanitarian law. The rules contained in common Article 3 will therefore apply outside the actual theatre of combat operations 'in the whole territory under control of a party whether or not actual combat takes place'.
The definition propounded in the Tadic Jurisdiction Decision on 2 October 1995 has since been widely utilized as a formula for the characterization of non-international armed conflict.
The practice of the ICTY reveals that this threshold is reached every time that the situation can be defined as 'protracted armed violence'. This condition needs to be assessed against the yardstick of two fundamental criteria: (a) the intensity of the violence and (b) the organization of the parties. These two components of the concept of non-international armed conflict cannot be described in abstract terms and must be evaluated on a case-by-case basis by weighing up a host of indicative data.
With regard to the criterion of intensity, these data can be, for example, the collective nature of the fighting or the fact that the State is obliged to resort to its army as its police forces are no longer able to deal with the situation on their own. The duration of the conflict, the frequency of the acts of violence and military operations, the nature of the weapons used, displacement of civilians, territorial control by opposition forces, the number of victims (dead, wounded, displaced persons, etc.) as well as whether the conflict had attracted the attention of the UN Security Council and whether any resolutions on that matter had been passed.
As for the second criterion, those involved in the armed violence must have a minimum level of organization. With regard to government forces, it is presumed that they meet that requirement without it being necessary to carry out an evaluation in each case. As for non-governmental armed groups, the indicative elements that need to be taken into account include, for example, the existence of an organizational chart indicating a command structure, the authority to launch operations bringing together different units, the ability to recruit and train new combatants or the existence of internal rules.
1.5 Rome Statute of the International Criminal Court
This definition has also been incorporated into the Rome Statute of the International Criminal Court. The subsequent incorporation of the Tadic definition into Article 8(2)(f) of the Rome Statute of the International Criminal Court suggests a general acceptance of the fact that a state of armed conflict can now exist between organized armed groups without any involvement of state authorities. This development of international humanitarian law ensures that the victims of conflicts between non-state armed groups need not be excluded from the protection it provides on account of the non-involvement of state authorities.
Elements common to all war crimes
Not all violations of IHL constitute war crimes. To be considered a war crime, the violation must entail, under customary or treaty law, the individual criminal responsibility of the person breaching the rule. War crimes are serious violations of IHL committed in international and non-international armed conflicts that give rise to individual criminal responsibility.
Through the treaties that provide individual criminal responsibility and the statute of international tribunals it is possible to extrapolate common requirements for all war crimes.
These elements are:
(1) Armed conflict: there must have been an armed conflict (international or non international) when and where the alleged crimes were committed.
(2) Protected persons: the victim must be protected under IHL (civilians, prisoners of war and combatants no longer able to fight because they are sick, wounded or shipwrecked). Certain property and property rights are also protected in IHL treaties (for example cultural property, other civilian objects; and military medical facilities and ambulances).
(3) Potential perpetrators: The most obvious potential perpetrators of war crimes are individual soldiers. It is widely accepted that not only soldiers but civilians can commit war crimes.
(4) Nexus: there must be a sufficient nexus between the accused's acts and the armed conflict.
(5) Existing IHL: the violation must be a breach of customary or treaty IHL binding on the accused.
(6) Gravity: the violation must be serious and involve grave consequences for the victim.
(7) Individual criminal responsibility: the violation must entail individual criminal responsibility of persons breaching the rule.
(8) Awareness: It is also necessary to prove that the accused was aware that an armed conflict existed.
All of these elements distinguish war crimes from ordinary crimes. Probably the most controversial of these elements are the nexus and the mental element attached to it, for this reason it would be useful to address them through the case law of the ad hoc tribunals and through the Statute of the International Criminal Court.
2.1 The nexus
The International Criminal Tribunal for the former Yugoslavia (ICTY) has explored in more detail the intricacies linked to the establishment of this nexus between the conduct of the perpetrator and the armed conflict.
In the Tadic case, the Trial Chamber found that:
There must be an obvious link between the criminal act and the armed conflict . . . It is sufficient that the alleged crimes were closely related to the hostilities occurring in other parts of the territories controlled by the parties to the conflict.
In the Delalic case, the same Trial Chamber stressed the fact that a war crime can be perpetrated even if 'substantial clashes were not occurring in the region at the time and place' where the crimes were allegedly committed.
More detailed pronouncements on this issue were made by the ICTY Appeals Chamber in the Kunarac case:
What ultimately distinguishes a war crime from a purely domestic offence is that a war crime is shaped by or dependent upon the environment – the armed conflict – in which it is committed. It need not have been planned or supported by some form of plan or policy. The armed conflict need not have been causal to the commission of the crime, but the existence of an armed conflict must, at a minimum, have played a substantial part in the perpetrator's ability to commit it, his decision to commit it, the manner in which it was committed or the purpose for which it was committed. Hence, if it can be established, as in the present case, that the perpetrator acted in furtherance of or under the guise of the armed conflict, it would be sufficient to conclude that his acts were closely related to the armed conflict [. . .]
In determining whether or not the act in question is sufficiently related to the armed conflict, the Trial Chamber may take into account, inter alia the following factors: the fact that the perpetrator is a combatant; the fact that the victim is non-combatant; the fact that the victim is a member of the opposing party; the fact that the act may be said to serve the ultimate goal of a military campaign; and the fact that the crime is committed as part of or in the context of the perpetrator's official duties.
The ICTR Trial Chambers seem to be more restrictive by requiring the acts of the perpetrator 'to be committed in conjunction with the armed conflict' or the existence of a 'direct link between the crimes committed and the hostilities'.
It recalled the necessity of considering a whole number of factors when determining the relationship between the offence and an armed conflict and warned that 'particular care is needed when the accused is a non-combatant'. In the Rutaganda case, the Appeals Chamber took into account the following factors: the fact that the perpetrator participated in attacks against the civilian population alongside soldiers of the presidential guard, the fact that he exercised de facto influence and authority over a paramilitary group, which committed the massacres, and the fact that the victims were persons protected under common Article 3 and Protocol II.
The ICTY seemed to treat the contextual element as a jurisdictional one and did not attach any mental element to it. In 2006, the Appeals Chamber reversed this long-standing practice and found that both the existence and the international character of an armed conflict are jurisdictional prerequisites as well as substantive elements of crimes pursuant to Article 2 of the ICTY statute. According to this new case law, the accused must be aware of the factual circumstances establishing the existence and the nature of the armed hostilities.
The elements of crimes for war crimes adopted by the Preparatory Commission for the ICC took due account of the case law of both Tribunals. In the war crimes section, it contains a contextual element, which reads: 'the conduct took place in the context of and was associated with an international armed conflict'. The drafters chose to use both expressions cumulatively, on the understanding that the words 'in the context of' refer to the existence of an armed conflict in the country/area where the conduct was committed, and that the expression 'was associated with' refers to the necessary nexus between the armed conflict and the conduct of the perpetrator. The words 'associated with' also indicate that conduct which takes place after the cessation of active hostilities, but are still associated with the conflict, can amount to war crimes.
2.2 The mental element
During the negotiations of the elements of crimes for war crimes the mental element attached to this nexus became a controversial issue.
Article 30.3 of the ICC statute requires the perpetrator to have knowledge of or awareness that a circumstance exists. Applied literally, it could mean that the perpetrator had to be aware of the existence and the nature of the conflict in which his conduct took place. As there were diverging views of delegations on this issue, it was agreed that the general introduction of war crimes should specify the common interpretation reached by the drafters on the adopted contextual element.
First, the general introduction to the section on war crimes makes clear that the perpetrator need neither make a legal evaluation as to the character of the conflict as international or non-international, nor legally assess the existence of an armed conflict. Secondly, this mental element attached to the nexus requirement must not be understood as requiring the perpetrator to be aware of the facts that established the character of the conflict. In other words, the perpetrator does not need to be aware of the nature or character of the conflict, i.e. whether the conflict is internal or international. But does the perpetrator need to know the facts that established the character of the violence, i.e. does he need to know that he committed his crime in an internal armed conflict and not during internal disturbances?
As for the difference between international and non international it logically follows that he does not need to know the facts establishing the character of the violence, i.e. internal armed conflict or internal disturbances.
For the majority of delegations, the perpetrator needed to be aware of some factual circumstances establishing the existence of an armed conflict, in order to distinguish between a war crime and an ordinary crime. It was stressed that some conduct, such as the use of certain weapons, could be illegal during an armed conflict but legal in other situations not amounting to an armed conflict. It would therefore be unfair to convict a person who was not aware of the existence of the armed conflict, for having used this weapon during an armed conflict.
The compromise appears in the elements of crimes and in the introduction to Article 8. First, a mental element has been added to the contextual element in each set of crimes and requires the perpetrator to be 'aware of factual circumstances that established the existence of an armed conflict'. It is important to note that this mental element uses the expression 'aware of factual circumstances' and not 'aware of the factual circumstances'. It was understood by the drafters that the absence of the word 'the' highlights the fact that the awareness of the perpetrator does not need to relate to the whole complexity of facts determining the existence of an armed conflict, but rather that only some facts should be known by the perpetrator, sufficient for him to be aware of the existence of some sort of armed conflict.
2.3 Applicability of IHL treaties to rebel group in non international armed conflicts
Another question that came out in the debate among war crimes in internal armed conflict is how rebel forces can be bound by the laws of war in internal armed conflict. One wonders in fact how a rebel group can be bound by treaties it would not have signed and how it could therefore be found responsible for breaches of those norms. In other words, how can a non-state entity, the rebel group, be bound by the 1949 Geneva Conventions to which it has never agreed and to which it has no capacity to become a party?
The ICRC commentary on common Article 3 suggests that as a responsible authority heading the insurgents and exercising effective sovereignty, the rebels claim to represent the state and therefore are bound by the treaties to which the state is a party. This argument can only apply to those groups, which exercise de facto authority and effective sovereignty over some persons or territory and do claim to represent the state.
Another approach, often referred to as the doctrine of legislative jurisdiction, was advanced during the 1949 Geneva Conference by the Greek delegate who took the view that each legally constituted government can legislate for all of the nationals of that state, and therefore each national, including the rebels, would be bound by common Article 3. This, however, implies that the rebels would be bound by common Article 3 as domestic law, and their responsibility could be engaged only for breaches of domestic law and not for war crimes per se. It is also difficult to see how insurgents will feel bound to respect domestic law as they might even declare domestic law inapplicable in the territory they control.
A third and more satisfactory approach is that international humanitarian law instruments and customary law not only put obligations on states but also create rights and obligations under international law for individuals. Similarly, customary norms in the field of international criminal law are addressed to individuals.
International prosecutions of war criminals and internal armed conflicts
As far as internal armed conflicts are concerned, the international enforcement of individual responsibility for war crimes per se was neither envisaged in the 1949 Geneva Conventions nor in Protocol II of 1977. The failure to provide for individual criminal responsibility for war crimes in Protocol II explains why up to the 1990s, violations of the laws of war, when committed during an internal armed conflict, were prosecuted as domestic crimes and did not attract international responsibility. The past decade saw the extension of international criminal responsibility from conduct committed in international conflicts to similar conduct committed in internal conflicts.
Faced with massive violations of the laws of war during internal armed conflicts and growing impunity, the international community chose to place greater reliance on international criminal justice, with the creation of the ICTY, ICTR culminating in the adoption of the ICC statute that gives to the court a wide geographical scope.
War crimes in Statute of the International Tribunal for the former Yugoslavia
The ICTY, established by Security Council resolution 827, has the power to prosecute persons responsible for genocide, crimes against humanity in international and internal conflicts, grave breaches of the Geneva Conventions of 1949 as well as violations of the laws of war committed in the territory of the former Yugoslavia since January 1991.
As far as the violations of international humanitarian law are concerned, the scope of application of both Article 2, grave breaches of the Geneva Conventions, and Article 3, serious violations of the laws of war, seem to be confined to international armed conflicts.
The report reiterated that 'the international tribunal should apply rules of international humanitarian law which are beyond any doubt part of the customary law,' but mentioned neither common Article 3, nor Protocol II in the list of conventional humanitarian law instruments which have beyond doubt become part of international customary law.
The absence of qualification by the Security Council is understandable, as between 1991 and 1996 there were several conflicts between various parties in those states, which then made up the Federal Republic of Yugoslavia. A single qualification of the conflict as international or internal seemed, therefore, impossible as the Council dealt with different situations: the conflict between the armed forces of Croatia against the Federal Army of Belgrade, the conflict between Croatia and Bosnia, and the various conflicts within Bosnia Herzegovina between different armed groups. This view was later upheld by the Tribunal itself in the Tadic jurisdiction decision. The Appeals Chamber noted that the many Security Council statements and resolutions revealed the Council's awareness of the mixed character of conflict, and that the Security Council was not only calling for the perpetrators of grave breaches to be called to justice, but that equally the perpetrators of other violations of international humanitarian law, including potential war crimes in internal armed conflicts, should be held individually responsible for their conduct.
War crimes in the Statute of the International Criminal Tribunal for Rwanda
Faced with large-scale massacres of innocent people in Rwanda during 1994, the Security Council condemned:
All breaches of international humanitarian law in Rwanda, particularly those perpetrated against the civilian population, and recalled that persons who instigate or participate in such acts are individually responsible and should be brought to justice.
The Commission of Experts set up by the Security Council qualified the armed conflict which took place between 6 April 1994 and 15 July 1994 as a non-international conflict and found both common Article 3 and Protocol II to be applicable.
The Secretary-General took the view that Article 4 'includes violations of Additional Protocol II, which, as a whole, hasn't yet been universally recognized as part of customary international law and for the first time criminalizes common Article 3 of the four Geneva Conventions'.
War crime in the ICC Statute
War crimes are serious violations committed during an international armed conflict or internal conflict by military or civilians belonging to a belligerent party against persons or property belonging to another, or neutral. They differ from crimes against humanity because war crimes require the existence of an armed conflict and a nexus between the conduct and the conflict unlike crimes against humanity that occur even in times of peace have to be part of a widespread or systematic attack against any civilian population.
War crimes are described in Article 8 through a normative technique that is highly structured by providing a combination of typical individual conducts with a number of common elements. It's described first an element common to all cases i.e. that the crimes have been committed in particular as part of a plan or policy or as part of a large-scale commission of such crimes, then there is a description of four typical categories of facts with their common elements i.e. that acts are committed during and in connection to international armed conflict in the first two groups and non-international in seconds, distinguishing between persons or things, then complete the provision other specifications contained in the elements of crimes.
The first issue concerns the value to attribute to the common element because the provision was the subject of many debates where some through the inclusion of these requirements wanted to raise the threshold of the offense and other on the contrary didn't want to limit the responsibility, the provision represents a compromise by inserting the phrase "in particular" before the threshold so that it is not necessary the existence of these requirements but it is preferable and provides a guideline for the court. Furthermore, this wide subject-matter jurisdiction is restricted in practice by a transitional provision adopted in order to secure the support of certain states during the last days of the Rome conference. On becoming party to the statute, a state may declare that it does not accept the jurisdiction of the court with respect to war crimes when such crimes are alleged to have been committed by its nationals or in its territory. This declaration is valid for a period of seven years after the entry into force of the statute for the state concerned.
3.3.1 Jurisdiction over war crimes in non-international armed conflicts prior to the Rome Conference
In the years preceding the Rome Conference, the reports of the Preparatory Committee show some reluctance on the part of states to include in the Statute crimes relating to non-international armed conflict. The original draft Statute produced in 1994 by the International Law Commission (ILC) did not include jurisdiction over war crimes committed in such situations.
This area of international law however evolved swiftly. Some months after the presentation of ILC's draft Statute to the UN General Assembly, the UN Security Council adopted a resolution approving the Statute of the International Criminal Tribunal for Rwanda.
The report of the UN Secretary-General on the Rwanda Tribunal notes the expansive approach taken by the Council to this area of international humanitarian law: [T]he Security Council has elected to take a more expansive approach to the choice of the applicable law than the one underlying the Statute of the Yugoslav Tribunal, and included within the subject-matter jurisdiction of the Rwanda Tribunal regardless of whether they were considered part of customary international law or whether they have customarily entailed the individual criminal responsibility of the perpetrator of the crime.
Article 4 of the Statute, accordingly, includes violations of Additional II Protocol, which, as a whole, has not yet been universally recognized as part of customary international law, for the first time criminalizes common article 3 of the four Geneva Conventions.
Despite the adoption of the statute for the ICTR, states involved in the drafting of the statute remained divided on the inclusion of the jurisdiction over crimes committed in such conflicts.
This debate continued at the Rome conference. After concluding its work on the formulation of 'a widely acceptable consolidated text of a convention for an international criminal court', the Preparatory Committee submitted a draft Statute for the consideration of delegates at the Rome Conference in its report of 15 April 1998. Sections C and D of Article 5 of the draft Statute contained provisions relating to non-international armed conflict. The offences listed in section C were taken from common Article 3, while many of those contained in section D were common to Additional Protocol II.
As already mentioned, both sections were covered by a chapeau stipulating their applicability to 'armed conflicts not of an international character' that explicitly excluded situations of internal disturbances and tensions. This negative definition of armed conflict was clearly insufficient for the purpose of distinguishing situations of non-international armed conflict. In order to allay the fears of states opposed to clauses concerning non-international armed conflict a positive definition was needed to clarify the terms of applicability.
The bureau made a new proposal and a different text was inserted into the chapeau of section D of draft art 5 quarter:
'Section D of this article applies to armed conflicts not of an international character and thus does not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature. It applies to armed conflicts that take place in a territory of a State Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations'.
The text of this provision sets a particularly high threshold of application. Stipulating conditions such as the involvement of a State Party in hostilities, control over territory and the existence of 'sustained and concerted military operations', the proposal imposed considerable restrictions on the applicability of the provisions contained in section D. As a consequence, it was strongly resisted by delegations interested in maintaining the previously uniform threshold for the application of sections C and D.
An alternative was the Sierra Leone's proposal issued on 13 July 1998. The proposal was put forward on the day the Committee was due to conclude its discussion on the war crimes provisions of the draft Statute. Speaking on behalf of Sierra Leone, Fode M. Dabor urged that sections C and D should be included in the new article 5 quater, but it had reservations, for example, regarding the chapeau of section D, which referred to organized armed groups that exercised 'control over a part of [a State party's] territory'. That wording was very restrictive: in his own country, for example, the rebel forces did not occupy a territory. Thus, as presently drafted, section D would exclude the type of internal conflict presently taking place in Sierra Leone. His delegation therefore proposed that the second sentence of the chapeau should be replaced by the text:
'It applies to armed conflicts that take place in a territory of a State when there is protracted armed conflict between governmental authorities and organized armed groups or between such groups.'
The proposed amendment was modeled on language taken from the Tadic Jurisdiction Decision of 2 October 1995.
The amendment suggested a lower threshold of 'protracted armed conflict between governmental authorities and organized armed groups or between such groups'. Conditions such as the existence of responsible command, control over territory and the conduct of sustained and concerted military operations were not included in Sierra Leone's amendment. The requirement of state involvement in hostilities was also no longer considered necessary. It was thus incorporated into the consolidated text of the draft Statute proposed for adoption by the Committee of the Whole on 17 July 1998. Formal consideration of this non-international armed conflict threshold, included as Article 8(2)(f) of the Statute, was concluded at 10.50 p.m. on Monday, 13 July.
3.3.2 Definite provision: some interpretative issues
The Rome Statute of the ICC distinguishes between two categories of crimes that occur during 'armed conflicts not of an international character': (a) serious violations of common Article 3, and (b) other serious violations of the laws and customs of war that are applicable in those situations. In both cases, the Statute indicates the lowest level of applicability of the relevant provisions by stipulating that they do not apply to 'situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature'.
Moreover, whereas this instrument does not give a more precise definition of the material field of application of the rules pertaining to 'serious violations of common Article 3' (Article 8(2)(d)), it clarifies the notion of non-international armed conflict in the case of 'other serious violations'. Article 8(2)(f) stipulates in that case that the rules must apply 'to armed conflicts that take place in the territory of a State when there is protracted armed conflict between governmental authorities and organized armed groups or between such groups'. The question that then arises is whether, in referring explicitly to the criterion of duration ('protracted armed conflict'), paragraph (2)(f) merely clarifies the terms of paragraph (2)(d), without creating a separate category of conflict, or whether it proposes a different type of non-international armed conflict, thus defining a new field of application. That question is the subject of controversy.
Given the lack of consensus on the meaning of Article 8(2)(f), it is important to examine carefully the text of this provision in light of the guidance on interpretation provided by the Vienna Convention on the Laws of Treaties. Article 31(1) of the Convention states as a general rule of interpretation that:
'A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.'
In considering 'context', Article 32 of the Vienna Convention provides that:
'Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31: (a) leaves the meaning ambiguous or obscure; or (b) leads to a result which is manifestly absurd or unreasonable'.
The official record of discussion on the final text of this threshold provision is brief and contains no reference as to how states understood Sierra Leone's proposal in relation to the existing threshold of application for common Article 3, it is useful to recall views expressed by delegates on the concept of non-international armed conflict before the Committee of the Whole. It is clear that the majority of states would have rejected the proposal if it merely submitted a reformulation of the threshold contained in Article 1(1) of Additional Protocol II. It is also clear that the majority of states favoured the inclusion of a threshold that would allow the provisions contained in section D to apply to situations of armed conflict between organized armed groups.
The structure of Article 8 reflects the fact that the Statute was formulated through a process of negotiation. Following now a textual interpretation we can see that the first sentence of Article 8(2)(f), reproduced from Article 1(2) of Additional Protocol II, provides an uncontroversial, negative formulation of the lower threshold of non-international armed conflict. The second sentence of Article 8(2)(f) states a positive formulation of the same threshold.
3.3.2.1 First view
Some observers consider that the two paragraphs deal with one and the same situation. They consider, in particular, that the intention of those negotiating the Statute was not to create a separate category of non-international armed conflict. Rather, the reference to duration in paragraph (2)(f) was intended to prevent the restrictive notion in Additional Protocol II from being incorporated into the Statute. It was, in a way, an effort to achieve a compromise between the original draft, which made no distinction between paragraphs (2)(d) and (2)(f), and the desire of some States to include the restrictions of Additional Protocol II in that second paragraph. Judge Theodor Meron insists that Article 8(2)(f) 'should not be considered as creating yet another threshold of applicability'.
3.3.2.2 Second view
By contrast, other authors consider that if the concept of non-international armed conflict in paragraph (2)(d) refers directly to that of common Article 3, the notion in paragraph (2)(f) adds a time criterion. A non-international armed conflict within the meaning of paragraph (2)(f) exists when that conflict is 'protracted'. Whereas from the point of view of paragraph (2)(d), duration is a factor that may perhaps be taken into account when evaluating the situation but does not constitute a compulsory criterion, it is nonetheless an integral part of the very concept of paragraph (2)(f). This notion does not therefore seem to constitute an extension of the field of application of paragraph (2)(d) but creates a separate category of non-international armed conflict with a view to criminalizing, within the context of the Statute of the ICC, additional violations of international humanitarian law, i.e. violations of rules in Additional Protocol II.
According to Marco Sassoli and Antoine Bouvier, however, the threshold contained in Article 8(2)(f) is distinct from that of common Article 3:
«The Statute of the International Criminal Court provides an intermediary threshold of application. There is no longer a requirement for the conflict to take place between governmental forces and rebel forces, for the latter to control part of territory, nor for there to be a responsible command. The conflict must however be protracted and the armed groups must be organized».
Professor William Schabas also allows for the interpretation of an additional category of non-international armed conflict in Article 8(2)(f):
«As it now stands, Article 8 consists of four categories of war crimes, two of them addressing international armed conflict and two of them non-international armed conflict … Courts will be required to distinguish between international and non-international armed conflicts, and this is further complicated by the fact that within the subset of non-international conflicts there are two distinct categories».
Case law tends to provide support for the second interpretation. In the Lubanga Dyilo case, the ICC Pre-Trial Chamber referred to Additional Protocol II in order to interpret paragraph (2)(f) of the Statute. It thus apparently wanted to confer a distinct meaning on this provision, defining a specific threshold of applicability. The Chamber made it clear that this threshold is characterized by two conditions: (a) the violence must achieve a certain intensity and be protracted; (b) an armed group with a degree of organization, particularly the 'ability to plan and carry out military operations for a prolonged period of time' must be involved.
Worded like that, this definition therefore seems to define a field of application that is stricter than that of common Article 3, as it requires the fighting to take place over a certain period of time. It is, however, broader than that of Additional Protocol II as it does not require the armed group(s) concerned to exercise territorial control. The category of conflict targeted here is therefore half way between the categories referred to in common Article 3 and in Additional Protocol II.
In sum, the Rome Statute of the ICC seems to identify two types of non-international armed conflict: firstly, conflicts within the meaning of common Article 3 (paras (2)(c)–(d)); and secondly, 'protracted' non-international armed conflicts (paras (2)(e)–(f)). It should nonetheless be recalled that this innovation in the Statute does not create a new concept of non-international armed conflict in international humanitarian law, but simply aims at determining the ICC's jurisdiction. It therefore applies only to the exercise of that jurisdiction and does not establish a category that is more generally applicable.
3.3.3 The significance of the determiner 'other' in Article 8(2)(e)
The opening sentence of Article 8(2)(e) describes the provisions contained therein as 'other' serious violations of the laws and customs applicable to armed conflicts not of an international character'.
The use of the word 'other' is significant in this context because it situates the offences listed in the same category of armed conflict as that of common Article 3. It follows by rule of logic in the use of this determiner that the 'serious violations of article 3 common to the four Geneva Conventions' listed in Article 8(2)(c) form a subset of 'serious violations of the laws and customs applicable to armed conflicts not of an international character'. If the approach adopted in the Statute's drafting history is adhered to, it follows that the provisions listed in Article 8(2)(c) and 8(2)(e) relate to only one category of non-international armed conflict. The determiner 'other' acts as a bridge between these two sections by explicitly situating the offences listed in one category of war crimes, i.e. 'serious violations of the laws and customs applicable to armed conflicts not of an international character'. Following this interpretation, the logical consequence is a shared threshold of application. This position was supported by an analysis of the debate that took place at the Rome Conference and it was furthermore held that the interpretation of separate thresholds would not serve the interests of victims and that it would be best to avoid unwarranted distinctions between different categories of non-international armed conflict.
3.3.4 Exercise of the jurisdiction
The adoption of a wide subject-matter jurisdiction for crimes committed in internal armed conflict contrasts sharply with the way the jurisdiction has been heavily circumscribed in other respects. The court is intended to exercise 'jurisdiction only over the most serious crimes of concern to the international community as a whole' and to be 'complementary to national criminal jurisdictions'. In addition to complementary there are several rules concerning the admissibility of situations and cases in art 17 and 53.
3.3.5 Individual conducts
For some of the typical conducts there is a lack of coordination with the corresponding conduct within the crimes against humanity and that is due to choice of importing in the statute the definitions contained in the Geneva convention without any terminological adaptation or critical control of the terms. This lack is not fulfilled by the EC.
The serious violations of art 3 common to the four Geneva Conventions provide:
Violence to life and person, murder, mutilation, cruel treatment and torture
Outrages upon personal dignity, humiliating and degrading treatment
Taking hostages
The passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all judicial guarantees which are generally recognized as indispensable
The other serious violations of the laws and custom applicable in armed conflict not of an international character provides nine acts closely related to provisions contained in Protocol II:
Intentionally directing attacks against the civilian population (Article 13 of Protocol II)
Intentionally directing attacks against buildings, material, medical units and transport, and personnel using the distinctive emblems of the Geneva Conventions (Articles 9, 11 and 12 of Protocol II)
Intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives (Articles 11 and 16 of Protocol II)
Pillaging a town or place, even when taken by assault (Article 4.2.g of Protocol II – Article 28 of the Hague regulations)
Committing rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, and any other form of sexual violence (Article 4.2.f of Protocol II prohibits slavery and slave trade in all their forms and Article 4.2.e of Protocol II prohibits rape, enforced prostitution and any form of indecent assault)
Ordering the displacement of the civilian population for reasons related to the conflict (Article 17.1 of Protocol II)
Declaring that no quarter will be given (Article 4.1 of Protocol II – Article 23.d) of the Hague regulations)
Subjecting persons in the power of another party to the conflict to mutilation or medical or scientific experiments (Articles 4.2.a), 5.2.e) of Protocol II) and
Conscripting or enlisting children under the age of fifteen years into armed forces or groups or using them to participate actively in hostilities (the recruitment of children below the age of fifteen is prohibited in Article 4.3.c. of Protocol II, as well as in Article 38.3 of the 1989 Convention on the Rights of the Child)
Two more war crimes committed in internal armed conflicts are closely related to similar provisions from the Hague regulations and are recognized for the first time as war crimes in internal armed conflicts:
Killing or wounding treacherously a combatant adversary (Article 23.b)
Destroying or seizing the property of an adversary unless such destruction or seizure be imperatively demanded by the necessities of the conflict (Article 23. g.)
The last war crime in internal armed conflict falling within the jurisdiction of the ICC can be found only in the 1994 Convention on the Safety of UN and Associated Personnel as an explicit violation of international humanitarian law.
The list of war crimes is applicable to internal conflict is more restrictive than to international conflicts. Even if a close parallel can be established between the two lists, certain provisions, which were considered by a number of states to amount to war crimes in internal armed conflict, were not included in the final version of the statute. The list appearing in Article 8.2.e) is the result of compromises and amounts to a patchwork of norms in which the inclusion of certain crimes, pushed by some states, amounts to a novelty in international law while the absence of others, such as a prohibition to attack civilian objects, begs for correction. Notwithstanding these lacunae, the statute of the ICC has the merit of affirming explicitly that violations of the law of war in internal armed conflicts are war crimes and of providing for a mechanism for their prosecution at an international level. Furthermore, the statute is the instrument containing the widest list of war crimes in internal armed conflicts. This achievement remains one of the most fundamental breakthroughs of the Rome statute, even if it has to face the challenges of the changing nature of armed conflicts, their complex combination of international and internal elements, the fact that modern wars are rarely categorized as being purely 'international' or purely in 'non-international' in character, but are rather a mixture of internal and international conflict, taking place in a globalised context, involving both state and non-state actors. Those characteristics make it difficult to classify certain situations, as IAC or NIAC, like the control of a territory without military presence on the ground, the intervention of one or more third states in a non international armed conflict, the intervention of multinational forces in a non international armed conflict, non international armed conflicts taking place on the territory of several states, 'exported' non international armed conflicts or cross-border non international armed conflicts.
Other treaties
This is the case in the 1993 Chemical Weapons Conventions, the 1996 Amended Protocol II to the 1980 Convention on Prohibitions or Restrictions on the Use of Mines, Booby-traps and other Devices, as well as the 1997 Convention on the Prohibition of the Use, Stockpiling, Production, and Transfer of Anti-personnel Mines and on their Destruction.
Art 9 of the latter provides:
Each party shall take all appropriate legal, administrative and other measures, including the imposition of penal sanctions, to prevent and suppress any activity prohibited to a state party under this convention undertaken by persons or on territory under its jurisdiction or control.
These instruments establish per se neither the character of war crimes to these violations, nor the application of universal jurisdiction. However, they impose a duty on states parties to enact penal sanctions, a new and welcome trend in weaponry conventions.
The 1994 Convention on the Safety of UN and Associated Personnel enjoins states parties to 'make the crimes set out in paragraph 1 punishable by appropriate penalties which shall take into account their grave nature'.
The Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict of 26 March 1999 establishes the criminal responsibility of persons who violate the Protocol. Article 22 of this instrument provides for its application in the event of an armed conflict not of an international character.
