t" describe the exact source of each of the crimes listed under this article. Those States that have already incorporated many of the existing conventions on war crimes may wish to review those chapters, to identify the relevant modifications and additions they may need to make to national laws, to ensure that they can prosecute all of the crimes within the ICC's jurisdiction. Otherwise, States Parties can employ a variety of means of incorporating the definition of a war crime into their national legislation.
a) The easiest method is to adopt a definition taken verbatim from the text of article 8 of the Rome Statute or that refers directly to it. This solution has the advantage of being easy for the author of the national law and brings it into concordance with the requirements of the Statute.
b) Follow the example of existing Australian War Crimes legislation, which makes murder and similar acts into war crimes in certain situations.
c) States could also use their general law offences to prosecute the authors of war crimes, using offences sufficiently serious to describe the crimes perpetrated. However, if some of the acts that constitute a war crime do not constitute any general law offence under national law, a State Party may need to amend its criminal code and create new offences covering those acts, to ensure that no-one is shielded from criminal responsibility for such crimes.
4.4 Grounds for Excluding Criminal Responsibility
Description
Article 31 sets out certain grounds for excluding criminal responsibility in the context of ICC prosecutions. Other provisions that are relevant in this respect are contained in Part 3 of the Statute on General Principles of Criminal Law
Complementarity Requirements
States that decide to try persons charged with one of the crimes mentioned in the Statute in their national courts are not obliged to allow an accused person to use the grounds of defence provided under the Statute, or the other means of defence accepted by international criminal law. However, States Parties may need to revise defences allowed under their national criminal justice system in order to ensure that these defences do not shield the person from criminal responsibility for acts that constitute ICC crimes. A trial where a person is acquitted of an ICC crime by a national court because of a means of defence too easy to raise could be considered a sham trial.
Implementation
Many of the grounds for excluding criminal responsibility under the Statute are already recognized in most jurisdictions, as well as under international criminal law. In common law jurisdictions, they are more frequently described as defences. The principle of complementarity does not require that States Parties establish a national judicial system that is governed by the same rules as those governing the ICC.
Nevertheless, States may wish to adapt existing provisions to bring them into conformity with the provisions of the Statute. These new grounds of defence would be admissible for the prosecution of international crimes. The advantage of this solution is that it brings uniformity to the proceedings. A person who is charged whether before a national court or the ICC can use the same grounds for excluding criminal responsibility.
The defence of superior orders
Description
Article 33 of the Statute indicates that the fact that a crime under the ICC's jurisdiction was committed under orders of a superior - whether military or civilian - does not absolve the perpetrator of criminal responsibility. There is an exception however, where:
1. the accused person was under a legal obligation to obey orders of the government or of the superior in question;
2. the accused person did not know
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