armed conflict
The Statute criminalizes certain serious violations of the laws of war committed during internal armed conflicts. In all cases, the definition of "internal armed conflict" as stated by the Statute does not include situations of simple internal disturbances such as riots, sporadic or isolated acts of violence or any similar act (article 8 (2)(d)). Crimes committed during non-international armed conflicts are separated into two paragraphs.
First, article 8 (2)(c) criminalizes the acts enumerated in article 3 common to the four Geneva Conventions, which deals with serious violations. The crimes in paragraph (c) can occur in any non-international armed conflict. The following list of war crimes would apply when committed against individuals not directly participating in the hostilities, including members of armed forces who have laid down their arms or been placed hors de combat due to illness, injury, detention, or any other cause:
- Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
- Committing outrages upon personal dignity, in particular humiliating and degrading treatment;
- Taking of hostages;
- The passing of sentences and the carrying out of executions without previous judgement pronounced by a regularly constituted court, affording all judicial guarantees that are generally recognized as indispensable.
Second, paragraph 8 (2)(e) criminalizes some acts prohibited by the two additional Protocols of 1977, various treaties on the laws of warfare and customary international law. However, under paragraph (f), these crimes can occur only when there is a protracted armed conflict on a State's territory between State forces and organized armed groups, or between organized armed groups. States should be aware that the threshold of paragraph (e) of the Statute is lower than the threshold of Protocol II: neither responsible commanders, nor control on a part of the territory is required. The existence of a protracted armed conflict is sufficient. The crimes listed in paragraph (c) could also apply during such a conflict. The criminal acts listed under article 8 (2)(e) include:
- Intentionally directing attacks against the civilian population not taking direct part in hostilities;
- Intentionally launching attacks against personnel or equipment of a humanitarian or peacekeeping mission, according to the Charter of the United Nations;
- Committing rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, and any other form of sexual violence also constituting a serious violation of the four Geneva Conventions;
- Conscripting or enlisting children under the age of fifteen years into armed forces or groups or using them to participate actively in hostilities;
- Ordering the displacement of the civilian population for reasons related to the conflict, unless the security of the civilians involved or imperative military reasons so demand.
Complementarity Requirements
It would be prudent for States Parties to the Rome Statute to incorporate the offence of war crimes as described in the Statute. Their laws should cover both war crimes committed during international armed conflict and those committed during an internal armed conflict, and should be applied to civilians and State officials as much as to members of its armed forces. States that have ratified the Geneva Conventions have already undertaken to enact legislation necessary to provide effective penal sanctions for persons committing grave breaches of these instruments during international armed conflicts (now all offences under article 8 (2)(a)).
Implementation
The chapters on article 8 in Otto Triffterer's "Commentary on the Rome Statute of the International Criminal Cour
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