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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 non-international armed conflicts

Published online by Cambridge University Press:  19 April 2010

Knut Dörmann
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International Review of the Red Cross , Volume 83 , Issue 842 , June 2001 , pp. 461 - 488
Copyright
Copyright © International Committee of the Red Cross 2001

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References

1 Dörmann, Knut, “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”, IRRC, No. 839, September 2000, pp. 771–796Google Scholar.

2 Austria, Belgium, Belize, Botswana, Canada, Fiji, Finland, France, Gabon, Germany, Ghana, Iceland, Italy, Lesotho, Luxembourg, Mali, Marshall Islands, New Zealand, Norway, San Marino, Senegal, Sierra Leone, South Africa, Spain, Tajikistan, Trinidad and Tobago, Venezuela.

3 op. cit. (note 1), pp. 771–773.

4 UN Doc. PCNICC/i999/DP.4/Add.1.

5 UN Doc. PCNICC/1999/WGEC/DP.8; UN Doc. PCNICC/1999/WGEC/DP.10; UN Doc. PCNICC/1999/WGEC/DP.11; UN Doc. PCNICC/1999/WGEC/DP.20; UN Doc. PCNICC/1999/WGEC/DP.22; UN Doc. PCNICC/1999/WGEC/ DP.37.

6 UN Doc. PCNICC/1999/WGEC/INF.2; UN Doc. PCNICC/1999/WGEC/INF.2/Add.1; UN Doc. PCNICC/1999/WGEC/INF.2/Add. 2; UN Doc. PCNICC/1999/WGEC/INF.2/Add. 3.

7 op. cit. (note 1), pp. 774–779.

8 Ibid., pp. 779–782.

9 The relevant part of Protocol I, Art. 37(1), 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 he is entitled to, or is obliged to accord, protection under the rules of international law applicable in armed conflict, with intent to betray that confidence, shall constitute perfidy.”

10 See, for example, Oppenheim/Lauterpacht, International Law: A Treatise, Vol. II, London, 1952, p. 342Google Scholar, which gives the following examples of treacherous conduct: “(…) no assassin must be hired, and no assassination of combatants be committed; a price dealmay not be put on the head of an enemy individual; proscription and outlawing are prohibited; no treacherous request for quarter must be made; no treacherous simulation of sickness or wounds is permitted.”

11 The impact of Protocol I, Art. 37, on the traditional rule as formulated in the Hague Regulations is not clear. Ipsen, for example, concludes: “The fact that Art. 37 has been accepted by the vast majority of States indicates that there is no customary international law prohibition of perfidy with a wider scope than that of Art. 37”, Ipsen, K., “Perfidy”, in Bernhardt, (ed.), Encyclopedia of Public International Law, Vol. 3, 1997, p. 980Google Scholar. 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, Article 6, dealing with certain types of booby-traps, and also in its amended form of 1996, Article 7.

12 Protocol I, Art. 41, reads as follows:

“2. A person is hors de combat if:

(a) he is in the power 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.”

13 Protocol I, Art. 42(1), reads as follows: “1. No person parachuting from an aircraft in distress shall be made the object of attack during his descent.”

14 “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.”

15 Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities.

16 Intentionally directing attacks against civilian objects, that is, objects which are not military objectives.

17 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,

18 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.

19 Intentionally directing attacks against buildings, material, medical units and transport, and personnel using the distinctive emblems of the Geneva Conventions in conformity with international law.

20 ICC Statute, Art. 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 relation to conduct, that person means to engage in the conduct;

(b) In relation to a consequence, that person means to cause that consequence 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 circumstance exists or a consequence will occur in the ordinary course of events. “Know” and “knowingly” shall be construed accordingly.”

21 ICTY, judgment, The Prosecutor v. Tihomir Blaskic, 11-95-14-1, para. 179.

22 Quoted in Fenrick, W. J., “A first attempt to adjudicate conduct of hostilities offences: Comments on aspects of the ICTY Trial decision in the Prosecutor v. Tihomir Blaskic,” in Leiden Journal of International Law, 2001 (forthcoming)Google Scholar.

23 See Commentary to Art. 85, in Sandoz, Y./Swinarski, C./Zimmermann, B. (eds), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, ICRC, Geneva, 1987, para. 3474, p. 994Google Scholar.

24 op. cit. (note 22).

25 Loc. cit. (note 21), para. 180.

26 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 object of the attack.”

27 EOC, General Introduction, para. 7: “The elements of crimes are generally structured in accordance with the following principles:

— As the elements of crimes focus on the conduct, consequences and circumstances associated with each crime, they are generally listed in that order;

— When required, a particular mental element is listed after the affected conduct, consequence or circumstance;

— Contextual circumstances are listed last.”

28 For identification of medical units or transports, see Protocol I, Annex I, Arts 6–9.

29 Commentary to Art. 51, loc. cit. (note 23), para. 1979, p. 625.

30 Commentary to Art. 52, in Bothe, M./Partsch, K.J./Solf, W.A., New Rules forVictims of Armed Conflicts, Martinus Nijhoff Publishers, The Hague/Boston/London, 1982, pp. 324 ffGoogle Scholar.

31 Commentary to Art. 57, op. cit. (note 23), para. 2209, p. 684. It is significant that the commentaries to Protocol I emphasize that the words “concrete and direct” impose stricter conditions on the attacker than those implied in the criteria defining military objectives, which require a “definite” military advantage. Ibid, para. 2218, p. 685, and op. cit. (note 30), p. 365.

32 Ibid., p. 365.

33 “4. With respect to mental elements associated with elements involving value judgment, such as those using the terms ‘inhumane’ or ‘severe’, it is not necessary that the perpetrator personally completed a particular value judgment, unless otherwise indicated.”

34 With regard to the different meanings of “starvation”, see Cottier, M., in Triffterer, O. (ed.), Commentary on the Rome Statute of the International Criminal Court, 1999, No. 218, p. 256Google Scholar.

35 UN Doc. PCNICC/1999/DP.4/Add. 2.

36 See Article I(5) of the 1993 Chemical Weapons Convention, which explicitly states that “(e)ach State Party undertakes not to use riot control agents as a method of warfare”. Riot control agents are defined as “(a)ny chemical not listed in a Schedule, which can produce rapidly in humans sensory irritation or disabling physical effects which disappear within a short time following termination of exposure”.

37 In the EOC the term “substance” is used to cover both terms “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.

38 The specific elements read as follows:

“1. The 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 ordinary course of events, through its asphyxiating or toxic properties.”

39 See Article II of the 1993 Chemical Weapons Convention:

“1. ‘Chemical Weapons’ means the following, together or separately:

(a) Toxic chemicals and their precursors, except where intended 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 subparagraph (a), which would be released as a result of the employment of such munitions and devices;…

2.‘Toxic 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.)

40 SIPRI (ed.), The Problem of Chemical and Biological Warfare III, 1973, p. 45Google Scholar.

41 ICTY, Judgment, The Prosecutor v. Furundzija, IT-95-17/1-T, para. 185. See also the definition by the ICTY Prosecution quoted in that judgment (para. 174): “… rape is a forcible act: 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 object. In this context, it includes penetration, however slight, of the vulva, anus or oral cavity, by the penis and sexual penetration of the vulva or anus is not limited to the penis.” (Footnote omitted.)

42 ICTR, Judgment, The Prosecutor v. Jean Paul Akayesu, ICTR-96-4-T, para. 688.

43 Ibid.

44 op. cit. (note 1), pp. 791 ff.

45 Supra, 1(b) War crimes relating to the conduct of hostilities.

46 Commentary to Art. 8, op. cit. (note 23), para. 404, p. 135: “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 emblem.” (Footnote omitted.)

47 For example, in the case of Article 8(2)(a)(vii)-1 — Unlawful deportation in case of international armed conflict — Art. 49(2) of the 4th Convention allows evacuations/displacements for exactly the same reasons, namely if justified for the security of the population or by imperative military reasons. However, these situations (which exclude unlawfulness) are not mentioned in the EOC adopted.

1 Knut Dörmann, “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”, RICR, No 839, septembre 2000, pp. 771–796.