the traditional definition, because it covers acts that had never before been codified. The major innovation of the Statute is that it enshrines the recent evolution of international jurisprudence criminalizing war crimes committed during non-international armed conflict.
War crimes committed during an international
armed conflict
International armed conflict exists at the moment there is a confrontation between armed forces of different nations. Article 8 does not define an international armed conflict. However, some jurists have suggested that armed conflict may be considered to be international in the following six cases:
1. armed conflict between States;
2. internal armed conflict that has been recognized as belligerency;
3. internal armed conflict involving one or several foreign interventions;
4. internal armed conflict involving UN intervention;
5. wars of national liberation;
6. war of secession.
Acts committed during an international armed conflict that are defined as war crimes under article 8 (2)(a) of the Statute are as follows:
1) Grave breaches of the Geneva Conventions of 1949, in other words the following acts committed against wounded, sick or shipwrecked members of armed forces, prisoners of war or civilians:
- Willful killing;
- Torture or inhuman treatment, including biological experiments;
- Willfully causing great suffering, or serious injury to body or health;
- Extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly;
- Compelling a prisoner of war or other protected person to serve in the forces of a hostile power;
- Willfully depriving a prisoner of war or other protected person of the right to a fair and regular trial;
- Unlawful deportation or transfer or unlawful confinement;
- Taking of hostages.
2) Article 8 (2)(b) also criminalizes other serious breaches of laws and customs applicable in international armed conflicts. It is unnecessary to provide the complete list here; the text of the Statute is sufficiently clear in this respect. These crimes are based on various sources, including the 1907 Hague Regulations, the First Additional Protocol to the Geneva Conventions, and various conventions banning certain weapons. The criminal acts include:
- Intentionally directing attacks against the civilian population not taking direct part in hostilities;
- Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or wide-spread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated;
- Intentionally launching an attack against personnel or installations involved in humanitarian assistance or a peacekeeping mission in accordance with the Charter of the United Nations;
- The transfer by an occupying power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory;
- Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization or any other form of sexual violence constituting a serous breach of the Geneva Conventions;
- Utilizing the presence of a civilian or other protected person to render certain points, areas or military forces immune from military operations;
- Conscripting or enlisting children under the age of fifteen years into the national armed forces or using them to participate actively in hostilities.
War crimes committed during a non-international
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