CRIMES WITHIN THE JURISDICTION OF THE ICC

Article 5 of the Rome Statute grants the International Criminal Court (ICC) jurisdiction over the most serious crimes of concern to the international community. These are genocide, crimes against humanity, war crimes and the aggression. The Rome statute defines each of these crimes except for aggression.

Genocide

Genocide is the deliberate intentional and systematic destruction in whole or in part of an ethnic, religious, racial, caste or national groups. Article 2 of the Genocide Convention and Article 6 of the Rome Statute classify the following acts as genocide: killing of members of the group; causing serious bodily/mental harm to members of the group; deliberately inflicting conditions of life calculated to bring about physical destruction to the group; imposing measures intended to prevent births within the group and forcibly transferring children to another group. There are eight stages of genocide: classification of groups; symbolisation (the swastika); dehumanisation; organisation and training of special armies/militias; polarisation and propaganda; identification and separation of victims from the classified groups; extermination and denial of the crime. Genocide does not necessarily entail the immediate destruction of the group. It is a coordinated plan of annihilation aimed at destroying the essential political and social foundations of the life of the targeted groups. It is limited to national, racial, ethnic and religious groups one is born into. The crime does not apply to the intent to destroy political, ideological, economic, military or professional groups. Therefore the mass murders of capitalists during the Chinese Revolution was not genocide.

War Crimes

War crimes are crimes committed in violation of international humanitarian laws applicable during armed conflict. The Geneva Convention has rules concerning prohibited targets, prohibited methods of warfare and prohibited weapons. Contravening any of those prohibitions warrants a war crimes charge. The perpetrator(s) must be aware of the extent of the anticipated harm or military advantage at the time of launching the attack and there must be a link (nexus) between the crime and the armed conflict. The test is whether the existence of a conflict played a substantial part in the perpetrator’s ability to commit the crime. As a general rule, warfare must only be directed towards military objects and not at the general population (principle of distinction). Military objects are combatants and objects which make useful and effective contribution to military action. The general rule is that all persons shall be considered as civilians until proven otherwise. Article 8 of the Rome Statute provides that the following is prohibited: attacking civilians; attacking undefended towns/villages which are not military objects; intentionally attacking buildings dedicated to religion, education, art, science or hospitals and attacking building, transport or personnel using distinctive Geneva Convention emblems (e.g. UN peace-keeping troops).

The Geneva Convention prohibits the following methods of warfare: killing a wounded combatant who has surrendered; declaring that no quarter will be given as this violates the duty to spare civilians; treachouroulsy killing or wounding combatants; pedifying and feigning (pretending to surrender, using Geneva Convention emblems); attacking relief aid; use of human shields, transfer of a population into an occupied territory and the use of child soldiers. Poison and poisoned weapons; analogous liquids or devices; dum-dum bullets and biological weapons, nuclear and chemical weapons are prohibited for being inherently indiscriminate (they cannot be used in a manner which distinguishes between civilians and military objects) and for causing unnecessary suffering.

Crimes against humanity

These are acts committed as part of a widespread/systematic attack directed against any civilian population with knowledge of the attack. This can be through: murder; enslavement; extermination; deportation/forced transfer of population; torture; forced disappearances; apartheid; rape; sexual slavery; forced prostitution, pregnancies, sterilisation and other inhuman acts intentionally causing serious mental/bodily harm. The crime requires a plan/policy/objective; significant resources; large scale or continuous commission of linked crimes and implication of high level authorities. This denotes the organised level of the acts of violence and the improbability of their random occurrence. Although the Rome Statute requires that there must be a policy element, the ICC has held decided that policy need not be formally adopted or expressly declared. This can be inferred from the acts (improbability of random occurrence). It is sufficient to prove involvement by state or organisation through explicit or implicit (tacit) endorsement from such bodies (e.g. failure to arrest perpetrators).

Aggression

The ICC only gained jurisdiction over this crime in 2017. Prior to that, there was no concise definition of the crime. Aggression is the planning, perpetration, initiation or execution by a person in a position of power to effectively control the political or military action of a state. To determine if the act of aggression has occurred the ICC tries to determine who counts as a leader (the leadership clause- ordinary foot soldiers cannot be responsible for the collective acts of the military) and on the conduct which falls within the actus reus of the crime of aggression (conduct verbs- planning, perpetration, initiating, execution). Establishing and settling on the scope of conduct which matters in the context of aggression is not an easy determinant. Acts of private citizens and companies and those of commanders below policy level in planning, preparing and execution do not constitute acts of aggression. The ability to shape and influence policy is sufficient to determine criminality for the crime of aggression.

These international crimes seem to have similar content especially in the case of genocide, war crimes and crimes against humanity. War crimes are atrocities committed during conflict or a war. Crimes against humanity focuses on the killing of a large number of people (aimed at protecting the individual) whereas genocide focuses on the destruction of groups (aimed at protecting groups). Therefore to ascertain which crime is which, focus is placed on the context and the mental element of the atrocities.

Sources: The Rome Statute of the International Criminal Court; The Geneva Convention; Convention on the Prevention and Punishment of the Crime of Genocide, First Review Conference of the Rome Statute of the International Criminal Court (Kampala Outcome); Nuremberg Military Tribunal Cases (Schaat, Farben, Krupp, High Command, Ministries); Prosecutor v Jean-Paul Akayesu, Prosecutor v Kunarac and Others; Prosecutor v Milan Martic; Prosecutor v Tadic; Prosecutor v Milorad Krnojelac; Prosecutor v Radislav Krstic; Prosecutor v Blagojevic and Jokic