1 1The article reflects the views of the author and not necessarily those of the ICRC. This article is based in some parts on previous publications by the same author: "War Crimes in the Elements of Crimes", in: H. Fischer/ C. Kreß/ S. R. Lüder (eds), International and National Prosecution of Crimes Under International Law: Current Developments, 2001, 95 et seq.; "Preparatory Commission for the International Criminal Court: The Elements of War Crimes ― Grave breaches and violations of article 3 common to the Geneva Conventions of 12 August 1949", Int'l Rev. of the Red Cross 82 (2000), 771 et seq., and "Preparatory Commission for the International Criminal Court: The Elements of War Crimes ― Part II: Other serious violations of the laws and customs applicable in international and noninternational armed conflicts", Int'l Rev. of the Red Cross 83 (2001), 461 et seq.
1 Convention (I) for the Amelioration of the Condition of Wounded and Sick in Armed Forces in the Field, Geneva 12 August 1949. 2 Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Geneva 12 August 1949. 3 Convention (III) relative to the Treatment of Prisoners of War, Geneva 12 August 1949. 4 Convention (IV) relative to the Protection of Civilian Persons in Time of War, Geneva 12 August 1949.
5 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), Geneva 8 June 1977. 6 Protocol for the Prohibition of the Use of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare, Geneva 17 June 1925.
7 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), Geneva 8 June 1977. 8 H. von Hebel/ D. Robinson, "Crimes within the jurisdiction of the Court", in: R. S. Lee (ed.), The International Criminal Court. The Making of the Rome Statute, 1999, 104. 9 This seems to be the approach of the ICJ, when it equated the use of indis- criminate weapons with a deliberate attack on civilians in stating: "The cardinal principles contained in the texts constituting the fabric of hu- manitarian law are the following. The first is aimed at the protection of the civilian population and civilian objects and establishes the distinction be- tween combatants and non-combatantr States must never make civilians the object of attack and must consequently never use weapons that are in- capable of distinguishing between civilian and military targets. »
Legality of the Use by a State of Nuclear Weapons, ICJ Reports 1996, 226 et seq. (257, para. 78) (emphasis added). 10 Von Hebel/ Robinson, see note 8, 116.
11 Convention on Prohibitions or Restrictions on the Use of Certain Con- ventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects, Geneva 10 October 1980.
12 In that regard the ICTY stated that "what is inhumane and consequently proscribed, in international wars, cannot but be inhumane and inadmissible in civil strife", ICTY Appeals Chamber, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, The Prosecutor v. Dusko Tadic, IT-94-1-AR72, para. 119. 13 For example ICTY Appeals Chamber, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, The Prosecutor v. Dusko Tadic, IT 94-1-AR72, paras 128-136. 14 Protocol on Prohibitions or Restrictions on the Use of Mines, Booby- Traps and Other Devices as amended on 3 May 1996 (Protocol II to the 1980 Convention as amended on 3 May 1996). 15 Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict, The Hague 26 March 1999.
16 The ICTY clearly held "that a crime need not. be part of a policy or prac- tice officially endorsed or tolerated by one of the parties to the conflict, or that the act be in actual furtherance of a policy associated with the conduct of the war", ICTY, Judgement, The Prosecutor v. Tihomir Blaskic, IT-95- 14-T, paras 69 et seq. (footnotes omitted) with further references.
1� See also Message [du Conseil federal Suisse] relatif au Statut de Rome de la Cour penale internationale, a la loi federale sur la cooperation avec la Cour penale internationale ainsi qu'a une revision du droit penal du 15 novembre 2000, 458. 18 For a more complete analysis see K. Dormann (with contributions by L. Doswald-Beck and R. Kolb), Elements of War Crimes under the Rome Statute of the International Criminal Court: Sources and Commentary, 2003.
22 See report reproduced in PCNICC/2000/WGEC/INF.1*.23 In the following "General Introduction". 24 "2. As stated in article 30, unless otherwise provided, a person shall be criminally responsible and liable for punishment for a crime within the ju- risdiction of the Court only if the material elements are committed with in- tent and knowledge. Where no reference is made in the Elements of Crimes to a mental element for any particular conduct, consequence or circumstance listed, it is understood that the relevant mental element, i.e., intent, know- ledge or both, set out in article 30 applies. Exceptions to the article 30 stan- dard, based on the Statute, including applicable law under its relevant pro- visions, are indicated below". 25 Article 30 reads as follows: "1. Unless otherwise provided, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court only if the material elements are committed with intent and knowledge. 2. For the purposes of this article, a person has intent where: (a) In relationlto conduct, that person means to engage in the conduct; (b) In relation to a consequence, that person means to cause that conse- quence or is aware that it will occur in the ordinary course of events. 3. For the purposes of this article, "knowledge" means awareness that a cir- cumstance exists or a consequence will occur in the ordinary course of events. "Know" and "knowingly" shall be construed accordingly".
26 °`l. The Court shall apply: (a) In the first place, this Statute, Elements of Crimes and its Rules of Pro- cedure and Evidence; (b) In the second place, where appropriate, applicable treaties and the prin- ciples and rules of international law, including the established principles of the international law of armed conf lict; (c) Failing that, general principles of law derived by the Court from na- tional laws of legal systems of the world including, as appropriate, the na- tional laws of States that would normally exercise jurisdiction over the crime, provided that those principles are not inconsistent with this Statute and with international law and internationally recognized norms and stan- dards [... J". 27 ICTY, Judgement, The Prosecutor v. Tihomir Blaskic, IT-95-14-T, para. 152.
28 See below III. 2. a. aa. in more detail. 29 The question of whether the term "accused" should be used, was the sub- ject of intensive discussions in the PrepCom. Until the last session of the PrepCom all Rolling Texts contained this term, despite repeated criticism by several delegations. Basically, they argued that it has specific procedural connotations in the context of the Rules of Procedure and Evidence, therefore it should be avoided. Eventually the term was replaced with "perpetrator". One delegation stated that this choice would conflict with the presumption of innocence. Para. 8 of the General Introduction specifies therefore that "the term "perpetrator" is neutral as to guilt or innocence". The change made during the final reading had no substantive impact. 30 "4. With respect to mental elements associated with elements involving value judgement, such as those using the terms 'inhumane' or 'severe', it is not necessary that the perpetrator personally completed a particular value judgement, unless otherwise indicated".
31 See report reproduced in PCNICC/2000/WGEC/INF.1 *. 3z See below III. 2. b.
33 See arts 50 GC I, 51 GC II, 130 GC III and 147 GC IV. 3a See ICTY, Judgement, The Prosecutor v. Zejnil Delalic and others, IT-96- 21-T, para. 201, 76. 35 The protection of property is only relevant in the context of article 8 (2) (a) (iv) of the ICC Statute (see below III. 2. b.). All the other crimes deal with crimes committed against protected persons.
36 ICTY Appeals Chamber, Judgement, The Prosecutor v. Dusko Tadic, IT 94-1-A, para. 80; ICY Appeals Chamber, Decision on the Defence Mo- tion for Interlocutory Appeal on Jurisdiction, The Prosecutor v. Dusko Ta- dic, IT-94-1-AR72, para. 84, 48 (for the reasons see paras 79 et seq.); see also ICTY, Judgement, The Prosecutor v. Tihomir Blaskic, IT 95-14-T, para. 74: "Within the terms of the Tadic Appeal Decision and Tadic Appeal judge- ment, article 2 applies only when the conflict is international. Moreover, the grave breaches must be perpetrated against persons or property covered by the `protection' of any of the Geneva Conventions of 1949". The ICTY Trial Chamber seemed however to take a more progressive ap- proach in the Delalic case: "While Trial Chamber II in the Tadic case did not initially consider the nature of the armed conflict to he a relevant consideration in applying arti- cle 2 of the Statute, the majority of the Appeals Chamher in the Tadic Juris- diction Decision did find that grave breaches of the Geneva Conventions could only be committed in international armed conflicts and this require- ment was thus an integral part of article 2 of the Statute. In his Separate
Opinion, however, Judge Abi-Saab opined that `a strong case can be made for the application of article 2, even when the incriminated act takes place in an internal conflict'. The majority of the Appeals Chamber did indeed rec- ognise that a change in the customary law scope of the `grave breaches re- gime' in this direction may be occurring. This Trial Chamber is also of the view that the possibility that customary law has developed the provisions of the Geneva Conventions since 1949 to constitute an extension of the system of `grave breaches' to internal armed conflicts should be recognised"., ICTY, Judgement, The Prosecutor v. Zejnil Delalic and others, IT-96-21-T, para. 202 (footnotes omitted). In the last resort, the Trial Chamber made no finding on the question of whether article 2 of the Statute could only be applied in a situation of international armed conflict, or whether this provi- sion was also applicable in internal armed conflicts (ibid. para. 235), but in- dicated : "Recognising that this would entail an extension of the concept of 'grave breaches of the Geneva Conventions' in line with a more teleological interpretation, it is the view of this Trial Chamber that violations of com- mon article 3 of the Geneva Conventions may fall more logically within ar- ticle 2 of the Statute. Nonetheless, for the present purposes, the more cau- tious approach has been followed". (ibid., para. 317). 37 The term "international armed conflict" is defined under common article 2 GC in the following terms: "(...J 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. [...] all cases of partial or total occupation of the territory of a High Con- tracting Party, even if the said occupation meets with no armed resistance".
38 ICTY Appeals Chamber, Decision on the Defence Motion for Interlocu- tory Appeal on Jurisdiction, The Prosecutor v. Dusko Tadic, IT 94-1-AR72, para. 70. 39 Ibid., para. 68. 4o The addition of the words "in association with" in the EOC was contested by some delegations. It was argued inter alia that they were redundant be- cause they were already included in the requirement "in the context of". 41 In one recent judgement the ICTY has given the following additional indi- cation : "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 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 wbich it was committed. Hence, if it can be estahlished, 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 (...J. In determining whether or not the act in question is sufficiently related to the armed conflicts, 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 a 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 aime is committed as part of or in the context of the perpetrator's official duties% ICTY Appeals Chamber, Judgement, The Prosecutor v. Dragoljub Kunarac and others, IT-96-23 and IT 96-23/1-A, paras 58 et seq.
42 For example, in the Tadic Judgement the Trial Chamber held that: "The existence of an armed conflict or occupation and the applicability of inter- national humanitarian law to the territory is not sufficient to create inter- national jurisdiction over each and every serious crime committed in the ter- ritory of the former Yugoslavia. For a crime to fall within the jurisdiction of the International Tribunal a sufficient nexus must be estahlished be- tween the alleged offence and the armed conflict which gives rise to the applicability of international humanitarian law"., ICTY, Judgement, The Prosecutor v. Dusko Tadic, IT-94-1-T, para. 572 (emphasis added). See also Jones, The Practice of the International Criminal Tribunals for the Former Yugoslavia and Rwanda, 2nd edition, 2000, 51.
43 The original proposal on the mental element read as follows: "The accused was aware of the factual circumstances that established the existence of an armed conflicts". (emphasis added). The direct article was dropped in order to indicate that the perpetrator needs only to know some factual circum- stances, but definitely not all the factual circumstances that would permit a judge to conclude that an armed conflict was going on. aa In the following "Introduction".
45 For the wording see note 25. 46 Some delegations argued that the perpetrator only needs to hear people shooting, others said that it would be enough if the perpetrator knows that people in uniform are around. These examples show that a very low stan- dard of mental coverage was required by certain proponents of this view.
47 PCNICC/1999/DP.4/Add.2. 48 PCNICC/1999/DPS. 49 PCNICC/1999/WGEC/DPS. 50 IC'Iy Appeals Chamber, Decision on the Defence Motion for Interlocu- tory Appeal on Jurisdiction, The Prosecutor v. Dusko Tadic, IT 94-1-AR72, para. 81. 51 ICTR Appeals Chamber, Judgement, The Prosecutor v. Dusko Tadic, 1T 94-1-A, para. 166.
53 ICTY Appeals Chamber, Decision on the Defence Motion for Interlocu- tory Appeal on Jurisdiction, The Prosecutor v. Dusko Tadic, IT-94-1-AR72, para. 81. 54 ICTY, Judgement, The Prosecutor v. Zejnil Delalic and others, IT 96-21-T, para. 424. See also ICTY, Judgement, The Prosecutor v. Tihomir Blaskic, IT 95-14-T, para. 153. 55 The same problem also exists with regard to the following war crimes: arti- cle 8 (2) (a) (iii), (vi). States who were in favour of the inclusion of "wilful" based their proposal on findings by the ICTY. For example, in the Delalic case, the ICTY held that:
"While different legal systems utilise differing forms of classification of the mental element involved in the crime of murder, it is clear that some form of intention is required. However, this intention may he inferred from the cir- cumstances [This approach was chosen at several occasions in the Delalic case by the ICTY Prosecution when it concluded for example that the nec- essary intent was necessarily inferred from the severity of the beating, see ICTY, Closing Statement of the Prosecution, The Prosecutor v. Zejnil De- lalic and others, IT-96-21 -T, paras 3.40, 3.52, 3.67, 3.90, 3.98, 3.113, 3.121, 3.132] whether one approaches the issue from the perspective of the foresee- ability of death as a consequence of the acts of the accused, or the taking of an excessive risk which demonstrates recklessness. As has heen stated by the Prosecution, the [ICRC] Commentary to the Additional Protocols expressly includes the concept of 'recklessness' within its discussion of the meaning of `wilful' as a qualifying term in both articles 11 and 85 of Additional Proto- col I [...]. [77he Trial Chamber is in no doubt that the necessary intent, meaning mens rea, required to establish the crimes of wilful killing and murder, as recognised in the Geneva Conventions, is present where there is demon- strated an intention on the part of the accused to kill, or inflict serious in- jury in reckless disregard of human life'. (emphasis added) ICTY, Judgement, The Prosecutor v. Zejnil Delalic and others, IT-96-21-T, paras 437 and 439. A discussion of the approach adopted by different legal systems - common law and civil law - can be found in paras 434 and 435. See also ICTY, Judgement, The Prosecutor v. ?'Tihomir Blaskic, IT-95-14-T, para. 153.
56 ICTY, Judgement, The Prosecutor v. Zejnil Delalic and others, IT 96-21-T, para. 459. In a judgement rendered after the completion of the PrepCom negotiations the ICTY took a more nuanced approach: "Three elements of the definition of torture contained in the Torture Con- vention are, however, uncontentious and are accepted as representing the status of customary international law on the subject: (i) Torture consists of the infliction, by act or omission, of severe pain or suffering , whether physical or mental. (ii) This act or omission must be intentional (iii) The act must be instrumental to another purpose, in the sense that the infliction of pain must be aimed at reaching a certain goal. On the other band, [the following] elements remain contentious: (i) The list of purposes the pursuit of which could be regarded as illegiti- mate and coming witbin the realm of the definition of torture. �...7 (iii) The requirement, if any, that the act be inflicted by or at the instiga- tion of or with the consent or acquiescence of a public official or other person acting in an official capacity. The Trial Chamber is satisfied that the following purposes have become part of customary international law: (a) obtaining information or a confession, (b) punishing, intimidating or mercing the victim or a third person, (c) dis- criminating, on any ground, against the victim or a third person. There are some doubts as to whether other purposes have come to be recognised under customary international law. z...7 The Trial Chamber concludes that the definition of torture under inter- national hunzanitarian law does not comprise the same elements as the defi- nition of torture generally applied under human rights law. In particular, the Trial Chamber is of the view that the presence of a state official or of any other authority-wielding person in the torture process is not necessary for the offence to be regarded as torture under international Humanitarian lay"', ICTY, Judgement, The Prosecutor v. Dragoljub Kunarac and others, IT-96-23 and IT-96-23/1-T, paras 483-96 (footnotes omitted). 57 ICTY, Judgement, The Prosecutor v. Zejnil Delalic and others, IT-96-21-T, ibid. and para. 494:
"(i) There must be an act or omission that causes severe pain or suffering, whether mental or physical, (ii) which is inflicted intentionally, (iii) and for such purposes as obtaining information or a confession from the victim, or a third person, punishing the victim for an act he or she or a third person has committed, intimidating or coercing the victim or a third person, or for any reason based on discrimination of any kind, (iv) and such act or omission being committed by, or at the instigation of, or with the consent or acquiescence of, an official or other person acting in an official capacity". In a later judgement, the ICTY described some specific elements that per- tain to torture as -considered from the specific viewpoint of international criminal law relating to armed conflicts. Thus, the Trial Chamber consid- ers that the elements of torture in an armed conflict require that torture: "(i) consists of the infliction by act or omission of severe pain or suffering, whether physical or mental; in addition (ii) this act or omission must be intentional; (iii) it must aim at obtaining information or a confession, or at punishing, intimidating, humiliating or coercing the victim or a third person; or at discriminating, on any ground, against the victim or a third person; (iv) it must be linked to an armed conflict; (v) at least one of the persons involved in the torture process must be a public official or must at any rate act in a non-private capacity, e.g. as a de facto organ of a State or any other authority-wielding entity"., ICTY, Judgement, The Prosecutor v. Furundzija, IT-95-17/1-T, para. 162. 58 The European Court of Human Rights found in the Ireland v. The United Kingdom Case that the "distinction (between `torture', `inhuman treatment' and `degrading treatment' within the meaning of article 3 European Con- vention on Human Rights] derives principally from a difference in the in-
tensity que suffering inf licted", European Court of Human Rights, Publi- cations of the European Court of Human Rights, Series A: Judgments and Decisions, Volume 25, 1978, 66. In the Greek case, Yearbook of the Con- vention on Human Rights, 1972, 186, the Commission found that "'tor- ture' zu is generally an aggravated form of inhuman treatment". The European Court of Human Rights also stated that 'torture' presupposes a "deliberate inhuman treatment causing very serious and cruel suffering'', European Court of Human Rights, Case of Ireland v. The United King- dom, ibid., 66; European Court of Human Rights, Aksoy v. Turkey, Re- ports of Judgments and Decisions, 1996-VI, 2279. See however European Commission of Human Rights, The Greek Case, Yearbook of the Con- vention on Human Rights, 1972, 186: "the word 'torture' is often used to describe inhuman treatment, which has a purpose [...] and it is generally an aggravated form of inhuman treatment". In its more recent judgements, the Court endorsed the definition of the Torture Convention, expressly in- cluding the purposive element. In doing so it stressed this element's rele- vance in distinguishing between 'torture' on the one hand and 'inhuman and degrading' treatment on the other, European Court of Human Rights, Ilban v. Turkey, Judgement of 27 June 2000, http://www. echr.coe. int/Eng/Judgments.htm, para. 85; European Court of Human Rights, Sal- man v. Turkey, Judgment of 27 June 2000, http://www.echr.coe.int/Eng/ Judgments.htm, para. 114; European Court of Human Rights, Akkoc v. Turkey, Judgment of 10 October 2000, http://www.echr.coe.int/Eng/ Judgments.htm, para. 115. 59 In this regard, the ICTY held that: "(tube use of the words "for such pur- poses' in the customary definition of torture [the definition contained in the Torture Convention], indicate that the various listed purposes do not con- stitute an exbaustive list, and Should be regarded as merely representative"., ICTY, Judgement, The Prosecutor v. Zejnil Delalic and otbers, IT 96-21-T, para. 470. However, the ICTR seemed to suggest an exhaustive list by for- mulating "for one or more of the following purposes, ICTR, Judgement, The Prosecutor v. Jean Paul Akayesu, ICTR-96-4, para. 594. In the Musema judgement it defined torture along the lines of the Torture Con- vention with a non-exhaustive list, ICTR, Judgement, The Prosecutor v. Alfred Musema, ICTR-96-13, para. 285.
60 "The accused inflicted the pain or suffering for the purpose of obtaining information or a confession, punishment, intimidation or coercion, or ob- taining any other similar purpose." (PCNICC/1999/WEGC/RT2). 61 ICTY, Judgement, The Prosecutor v. Zejnil Delalic and others, IT-96-21-T, para. 470. See also ICTY Appeals Chamber, Judgement, The Prosecutor v. Dragoljub Kunarac and others, IT-96-23 and IT 96-23/1-A, para. 155. 62 With respect to the addition of the purpose "humiliating" under (iii) of the indicated elements, the ICTY held in the Furundzija case that it is: warranted by the general spirit of international humanitarian law; the primary purpose of this body of law is to safeguard human dignity. The proposition is also supported by some general provisions of such interna- tional treaties as the Geneva Conventions and Additional Protocols, which consistently aim at protecting persons not taking part, or no longer taking part, in the hostilities from "outrages upon personal dignity". The notion of humiliation is, in any event close to the notion of intimidation, which is explicitly referred to in the Torture Convention's definition of torture,'. ICTY, The Prosecutor v. Furundzija, Judgement, IT-95-17/1-T, para. 163; ICTY, Judgement, The Prosecutor v. Miroslav Kvocka and others, IT-98- 30/1-T, para. 140. See however the more cautious approach taken in ICTY, Judgement, The Prosecutor v. Dragoljub Kunarac and others, IT-96-23 and IT 96-23/1-T, para. 485, which was rejected in re Kvocka and others.
63 ICTY, Judgement, The Prosecutor v. Zejnil Delalic and others, IT 96-21-T, para. 473. 64 ICTY Appeals Chamber, Judgement, The Prosecutor v. Dragoljub Kunarac and others, IT-96-23 and IT-96-23/1-A, para. 148. 65 For example ICTY, Judgement, The Prosecutor v. Zejnil Delalic and others, IT-96-21-T, para. 510; ICTY, Judgement, The Prosecutor v. Miroslav Kvocka and others, IT-98-30/1-T, para. 161. 66 See for example ICTY, Judgement, The Prosecutor v. Zejnil Delalic and others, IT-96-21-T, para. 543.
67 ICTY Appeals Chamber, Judgement, The Prosecutor v. Zejnil Delalic and others, IT-96-21-A, para. 424; ICTY, Judgement, T'be Prosecutor u Zejnil Delalic and others, IT-96-2 1 -T, para. 544; ICTY, Judgement, The Prosecutor v. Tihomir Blaskic, IT-95-14-T, para. 155; ICTY, Judgement, The Prosecu- tor v. Miroslav Kvocka and others, IT 98-30/1-T, para. 159. 68 See for example ICTY, Judgement, T'be Prosecutor v. Dario Kordic and Mario Cerkez, IT-95-14/2-T, para. 336.
69 The specific elements of this war crime read as follows: "1. The perpetrator coerced one or more persons by act or threat to take part in military opera- tions against that person's own country or forces. 2. Sucb person or persons were nationals of a hostile party". 70 This interpretation seems to be well founded under the GC, see H.P. Gas- ser, "Protection of the Civilian Population", in: D. Fleck (ed.), The Hand- book of Humanitarian Law, 1995, 264.
71 The relevant element reads as follows: "The perpetrator deported or trans- ferred one or more persons to another State or to another location". (em- phasis added). See in this regard B. Zimmermann, "Article 85", in: Y. San- doz/ C. Swinarski/ B. Zimmermann (eds), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, 1987, No. 3502, especially note 28. 72 ICTY, Judgement, T'he Prosecutor v. Zejnil Delalic and others, IT-96-21-T, para. 580.
�3 Ibid., para. 581. 74 Ibid., para. 582. 75 Ibid., para. 583. This view was confirmed by the ICTY, Appeals Chamber, Judgement, The Prosecutor v. Zejnil Delalic and others, IT-96-21-A, para. 322.
76 In the Blaskic case the ICTY has been less specific and defined the crime in the following terms: "Within the meaning of article 2 of the Statute [listing the grave breaches of the GC], civilian hostages are persons unlawfully de- prived of their freedom, often arbitrarily and sometimes under threat of death. However (...J detention may be lawful in some circumstances, inter alia to protect civilians or when security reasons so impel. T'he Prosecution must establish that, at the time of the supposed detention, the allegedly censurable act was perpetrated in order to obtain a concession or gain an advantage", ICTY, Judgement, The Prosecutor v. ?'Tihomir Blaskic, IT-95- 14-T, para. 158.
�� The relevant part of article 37 (1) AP I reads as follows: "It is prohibited to kill, injure or capture an adversary by resort to perfidy. Acts inviting the confidence of an adversary to lead him to believe that be is entitled to, or is obliged to accord, protection under the rules of international law applicable in armed conf lict, wi:h intent to betray that confidence, shall constitute per- fidy ". 78 See for example H. Lauterpacht, Oppenheim, International Law, A Trea- tise, Volume II, 7th edition 1952, 342, who indicates the following examples of treacherous conduct: "no assassin must be bired, and no assassination of combatants be committed; a price may not be put on the head of an enemy individual; proscription and outlawing are prohibited; no treacherous re- quest for quarter must be made; no treacherous simulation of sickness or wounds is permitted". 79 The impact of article 37 AP I on the traditional rule as formulated in the Hague Regulations is not clear. Ipsen, for example, concludes: "Tbe fact
that Art. 37 has been accepted by the vast majority of States indicates that there is no customary international law prohibition of perfidy �rrJith a wider scope than that of Art. 37", K. Ipsen, 'Perfidy', in: R. Bernhardt (ed.), EPIL 3 (1997), 978 et seq. (980). However, both terms are used on an equal footing in the original 1980 Protocol on Prohibitions or Restrictions on the Use of Mines, Booby- Traps and Other Devices in article 6 dealing with certain types of booby traps and in its amended form of 1996 in article 7. 80 "2. A person is hors de combat if (a) he is in the po�rr�er of an adverse Party; (b) he clearly expresses an intention to surrender; or (c) he has been rendered unconscious or is otherwise incapacitated by wounds or sickness, and therefore is incapable of defending himself; provided that in any of these cases he abstains from any hostile act and does not attempt to escape''. 81 "1. No person parachuting from an aircraft in distress shall be made the ob- ject of attack during his descent".
$2 "The presence in the locality of persons specially protected under the Geneva Conventions of 1949 or of police forces retained for the sole purpose of maintaining law and order does not by itself render the locality a military objective ". 83 Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities. 84 Intentionally directing attacks against civilian objects, that is, objects which are not military objectives. 85 Intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mis- sion 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. 86 Intentionally directing attacks against buildings dedicated to religion, edu- cation, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives. 87 Intentionally directing attacks against buildings, material, medical units and transport, and personnel using the distinctive emblems of the Geneva Con- ventions in conformity with international law.
88 ICTY, Judgement, The Prosecutor v. Tihomir Blaskic, IT-95-14-T, para. 179. 89 Quoted in W Fenrick, "A First Attempt to Adjudicate Conduct of Hos- tilities Offences: Comments on Aspects of the ICTY Trial Decision in the Prosecutor v Tihomir Blaskic", LJIL 13 (2000), 931 et seq. (939). 90 Ibid., 940. 91 ICTY, Judgement, The Prosecutor v. Tihomir Blaskic, IT-95-14-T, para. 180.
92 The relevant elements read as follows: "1. The perpetrator attacked one or more persons, buildings, medical units or transports or other objects using, in conformity with international law, a distinctive emblem or other method of identification indicating protection under the Geneva Conventions. 2. The perpetrator intended such persons, buildings, units or transports or other objects so using such identification to be the ohject of the attack ".
93 See also in this regard Y Sandoz, "Article 8", in: Sandoz/ Swinarski/ Zim- mermann, see note 71, No. 404: "It had already become clear, even during the first session of the Conference of Government Experts in 1971, that the problem of the security of medical transports could only be resolved by finding solutions adapted to `modern means of marking, pinpointing and identification'. In fact it is no longer possible today to base effective protection solely on a visual distinctive em- blem". (footnote omitted).
94 See C. Pilloud/ J. Pictet, "Article 51", in: Sandoz/ Swinarski/ Zimmer- mann, see note 71, No. 1979.
95 See W Solf, "Article 52", in: M. Bothe/ K.J. Partsch/ W Solf, New Rules for Victims of Armed Conflicts, Commentary, 1982, 324 et seq. 96 C. Pilloud/ J. Pictet, "Article 57", in: Sandoz/ Swinarski/ Zimmermann, see note 71, No. 2209.
97 PCNICC/1999/DP.4/Add.2. 98 See article I (5) of the Convention, which explicitly states that (eJach State Party undertakes not to use riot control agents as a method of warfare. " Riot control agents (RCAs) are defined as "(aJny chemical not listed in a
Schedule, which can produce rapidly in humans sensory irritation or dis- abling physical effects which disappear withirc a short time following termi- nation of exposure." " 99 In the EOC the term "substance" is used to cover both "liquids" and "materials" as contained in the statutory language. It was not the intention of the drafters to limit in any way the scope of application by this change. 100 The specific elements read as follows: "1. ?'he perpetrator employed a gas or other analogous Substance or device. 2. The gas, substance or device was such that it causes death or serious damage to health in the ordircary course of evercts, through its asphyxiating or toxic properties". 101 See article II of the 1993 Chemical Weapons Convention: "1. "Chemical Weapons" means the following, together or separately: (a) Tonic chemicals and their precursors, except where irctended for purposes not prohibited under this Convention, as long as the types and quantities are consistent with such purposes; (b) Munitions and devices, specifically designed to cause death or other harm through the toxic properties of those toxic chemicals specified in sub- paragraph (a), which would be released as a result of the employment of such murcitions and devices; [...] 2. "?'oxic Chemical" means:
Any chemical which through its chemical action on life processes can cause death, temporary incapacitation or permanent harm to humans or animals. This includes all such chemicals, regardless of their origin or of their method of production, and regardless of whether they are produced in facilities, in munitions or elsewhere (emphasis added). io2 SIPRI (ed.), The Problem of Chemical and Biological Warfare, Volume III, CBW and the Law of War, 1973, 45. 103 The negotiations for sexual crimes were to a very large extent identical in the war crimes section and in the crimes against humanity section. Delega- tions agreed that the elements should therefore be drafted essentially in the same way in both sections. This analysis will focus only on some issues.
104 ICTY, Judgement, T'he Prosecutor v. Furundzija, IT-95-17/1-T, para. 185. See also the definition by the ICTY Prosecution quoted in that judgement (para. 174): 'rape is a forcible ac�t.� this means that the act is 'accomplished by force or threats of force against the victim or a third person, such threats being express or implied and must place the victim in reasonable fear that he, she or a third person will be subjected to violence, detention, duress or psychological oppression'. This act is the penetration of the vagina, the anus or mouth by the penis, or of the vagina or anus by other objects. In this mn- text, it includes penetration, however slight, of the vulva, anus or oral cav- ity, by the penis and sexual penetration of the vulva or anus is not limited to the penis''. (Footnote omitted). In the Kunarac and others case, which was decided after the end of the PrepCom negotiations, the ICTY confirmed this view generally. It felt, however, a need to clarify its understanding of Element (ii) of the Furund- zija definition: "The Trial Chamber considers that the Furundzija definition, although ap- propriate to the circumstances of that case, is in one respect more narrowly stated than is reguired by international law. In stating that the relevant act of sexual penetration will constitute rape only if accompanied by coercion or force or threat of force against the victim or a third person, the Furundzija definition does not refer to other factors which would render an act of sex- ual penetration non-consensual or non-voluntary on the part of the victim, which [...] is in the opinion of this Trial Chamber the accurate scope of this aspect of the definition in international law". ICTY, Judgement, The Prosecutor v. Dragoljub Kunarac and others, IT-96- 23 and IT-96-23/1-T, para. 438. On the basis of the relevant law in force in different national jurisdictions, it identified the following three broad cate- gories of factors that qualify the relevant sexual acts (as defined in the Fu- rundzija case) as the crime of rape: "(i) the sexual activity is accompanied by force or threat of force to the vic- tim or a third party; (ii) the sexual activity is accompanied by force or a va- riety of other specified czrcumstances which made the victim particularly vulnerable or negated her ability to make an informed refusal; or (iii) the sexual activity occurs without the consent of the victim''. '". Ibid., para. 442. "Consent for this purpose must be given voluntarily, as a result of the victim's free will, assessed in the context of the surrounding cir- cumstances. ", ibid., para. 460.
The Appeals Chamber upheld this view and gave the following additional explanation: "roo] in explaining its focus on the absence of consent as the conditio sine qua non of rape, the Trial Chamber did not disavow the Tribunal's earlier juris- prudence, but instead sought to explain the relationship between force and consent. Force or threat of force provides clear evidence of non-consent, but force is not an element per se of rape. In particular, the Trial Chamber wished to explain that there are factors [other than force] which would render an act of sexual penetration non-consensual or non-voluntary on the part of the victim". A narrow focus on force or threat of force could permit perpetrators to evade liability for sexual activity to which the other party had not consented by taking advantage of coercive circumstances without relying on physical force". ICTY Appeals Chamber, Judgement, The Prosecutor v. Dragoljuh Kunarac and others, IT-96-23 and IT-96-23/1-A, para. 129. 105 ICTR, Judgement, The Prosecutor v. Jean Paul Akayesu, ICTR-96-4-T, para. 688. 106 See note 104.
108 See under III. 2. a. aa.
109 The ICTY concluded - with regard to any difference between the notions of "wilful killing" in the context of an international armed conflict on the one hand, and "murder" in the context of a non-international armed con- flict on the other hand - that there "can be no line drawn between "wilful killing" and "murder" which affect their content", ICTY, Judgement, The Prosecutor v. Zejnil Delalic and others, IT-96-21-T, paras 422 and 423. Ac- cording to the Tribunal, "cruel treatment constitutes an intentional act or omission, that is an act wbicb, judged objectively, is deliberate and not acci- dental, which causes serious mental or physical suffering or injury or consti- tutes a serious attack on human dignity. As such, it carries an equivalent meaning and therefore the same residual function for the purpose of com- mon article 3 of the Statute, as inhuman treatment does in relation to grave breaches of the Geneva Conventions", ibid., para. 552. Concerning any difference between the notion of "torture'' in the context of an interna- tional armed conflict on the one hand, and in the context of a non- international armed conflict on the other hand, the ICTY concluded that "[tlbe characteristics of the offence of torture under common article 3 and under the 'grave breaches' provisions of the Geneva Conventions, do not differ", ibid., paras 443. As to taking of hostages in an international armed conflict the ICTY held: "The elements of the offence are similar to those of article 3 (b) of the Geneva Conventions covered under article 3 of the Stat- ute", ICTY, Judgement, The Prosecutor v. Tihomir Blaskic, IT-95-14-T, para. 158.
111 For example in the case of article 8 (2) (a) (vii)-l: Unlawful deportation ar- ticle 49 (2) GC IV allows evacuations/displacements justified for exactly the same reasons, namely if justified for the security of the population or by imperative military reasons. However these situations excluding the unlawfulness are not mentioned in the EOC adopted.
112 United Kingdom, International Criminal Court Act 2001, Chapter 17, 26, No. 50: "(2) In interpreting and applying the provisions of those articles [articles 6, 7 and 8 (2) of the ICC Statute] the court shall take into account - (a) any relevant Elements of Crimes adopted in accordance with article 9 [ICC Statute], and (b) until such time as Elements of Crimes are adopted under that article, any relevant Elements of Crimes contained in the report of the Prepara- tory Commission for the International Criminal Court adopted on 30`" June 2000. (3) The Secretary of State shall set out in regulations the text of the Ele- ments of Crimes referred to in subsection (2), as amended from time to time. The regulations shall be made by statutory instrument which shall he laid before Parliament after being made. f...]
(S) In interpreting and applying the provisions of the articles referred to in subsedion (1) the court shall take into account any relevant judgment or decision of the ICC. Account may also be taken of any other relevant international jurispru- dence. N Scotland, The International Criminal Court (Scotland) Act 2001 (Com- mencement) Order 2001, (coming into force 17 December 2001): "l Genocide, crimes against humanity and war crimes (1) It shall be an offence to commit genocide, a crime against humanity or a war crime.... (4) In subsection (1) above- `war crime' means a war crime as defined in article 8.2 [ICC Statute], 9 9 Application of principles of the law of Scotland, construction etc. (...J (2) In interpreting and applying the provisions of the articles men- tioned in section 1 (4) of this Ad the court shall take into account any relevant Elements of Crimes. 28 Interpretation [...} 'Element of Crimes' means the Elements of Crimes set out in regulations made under section 50(3) of the 2001 Act. " In the Explanatory Notes to International Criminal Court (Scotland) Act, 2001 ASP 13 it is more affirmatively stated: "20. The courts must take into account the Elements of Crimes when in- terpreting and applying articles 6, 7 and 8.2. The Elements of Crimes will be adopted by the ICC when it is established, but are likely to be similar to those adopted by the Preparatory Commission for the ICC on 30 June 2000. When they have been adopted the UK Act provides that the text will be set out in regulations which will be made by statutory instrument. These articles must also be construed subject to and in accordance with any reservations or declarations made by the UK Government and certi- fied by Order in Council made under the UK Ack" * Malta, International Criminal Court Act, Act XXIV of 2002, http://www.docs.justice.gov.mt/lom/legislation/ english/leg/voL14/ chapt453.pdf "(4) In interpreting and applying the provisions of articles 54B [Geno- cide], 54C [Crimes against humanity] and 54 D (War crimes], [...] the court shall take into account- (a) any relevant Elements of Crimes adopted in accordance with article 9 of the ICC Treaty, and (b) until such time as Elements of Crimes are adopted under that article, any relevant Elements of Crimes contained in the report of the Prepara- tory Commission for the International Criminal Court adopted on 3u June, 2000'°.
113 Italy, Camera Dei Deputati, XIV Legislatura, Proposta di legge, presentata il 9 maggio 2002, see article 5. Article 3 specifies "1. Ai fini della presente legge: f...] c) per "elementi costitutivi dei crimini" si intende il testo degli elementi dei delitti di genocidio, dei delitti contro l'umanita e dei crimini di guerra predisposto dal Comitato preparatorio per la creazione della Corte penale internazionale ed approvato dall'Assemblea degli Stati parte ai sensi dell'articolo 9 dello Statuto ". 114 Comments by Professor Peter Rowe, Lancaster University, given to the author on 28 March 2003. 115 New Zealand, International Crimes and International Criminal Court Act 2000, Public Act 2000 No. 26, date of assent 6 September 2000: "12 General principles of criminal law f...] (4) For the purposes of inter- preting and applying articles 6 to 8 of the Statute in proceedings for an offence against section 9 [genocide] or section 10 [crimes against human- ity] or section 11 [war crimes], - (a) the New Zealand Court exercising jurisdiction in the proceedings may have regard to any elements of crimes adopted or amended in accordance with article 9 of the Statute". 116 Denmark, Lov om Den Internationale Straffedomstol, LOV nr. 342 af 16/05/2001 (Gaeldende): "5 1. The Statute of the International Criminal Court shall apply in this country. Para. 2 The Minister for Foreign Affairs may decide that the following provisions shall apply in this country:
(...J 2) The recommended descriptions of the content of crimes and amendments thereto, cf. article 9 of the Statute". (translation) 117 Australia, International Criminal Court (Consequential Amendments) Act 2002, No. 42, 2002, An Act to Amend the Criminal Code Act of 1995 and certain other Acts in consequence of the enactment of the International Criminal Court Act 2002, and for other purposes [Assented to 27 June 2002]. 118 See for example South Africa, Government Gazette, Volume 445 Cape Town 18 July 2002, No. 23642, "No. 27 of 2002: Implementation of the Rome Statute of the International Criminal Court Act, 2002", 6, 8, 38-46; Germany, "Gesetz zur Einfuhrung des Volkerstrafgesetzbuches vom 26.
Juni 2002, BGBI. 2002, Teil I Nr. 42"; Canada, "International Criminal Court Act 2001", Statutes of Canada 2000, Chapter 24, An Act respecting genocide, crimes against humanity and war crimes and to implement the Rome Statute of the International Criminal Court, and to make conse- quential amendments to other Acts [Assented to 29 June, 2000]): "(3) (...J `war crime' means an act or omission committed during an armed conflict that, at the time and in the place of its commission, con- stitutes a war crime according to customary international law or conven- tional international law applicahle to armed conflicts, whether or not it constitutes a contravention of the law in force at the time and in the place of its commission. (4) For greater certainty, crimes described in articles 6, 7 and paragraph 2 of article 8 of the Rome Statute are, as of July 14, 1998, crimes according to customary international law. This does not limit or prejudice in any way the application of existing or developing rules of international law ", 119 Message [du Conseil federal Suisse] relatif au Statut de Rome de la Cour penale internationale, a la loi federale sur la cooperation avec la Cour pe- nale internationale ainsi qu'a une revision du droit penal du 15 novembre 2000, 458.