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ICL Class Notes

International Criminal Law (Kabarak University)

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1. Structure and composition of the International

Criminal Courts
The International Criminal Court (ICC) is the 昀椀rst permanent treaty
established International Court.1 It is an independent body governed by
the Rome Statute, an international treaty founded on 17 July 1998 and
subsequent entry into force on 1st July 2002. It is established under
Article 1 of the Rome Statute. It is a permanent institution with the
power to exercise its jurisdiction over persons for the most serious
crimes in the international community. It was established to investigate,
prosecute, and try accused individuals and hold them accountable for
their crimes as well as to prevent these crimes from happening again.
Since its establishment, the International Criminal Court has been
instrumental in the development of rich jurisprudence regarding
international crimes.2
The Seat of the Court
It shall be established at the Hague in the Netherlands (host state) as
provided in Article 3(1) of the Rome Statute. However, the court may sit
elsewhere whenever it considers it desirable.3
Other bodies of the Rome Statute
The Rome Statute also establishes two more bodies that work hand in
hand with the International Criminal Court.

a) The Assembly of State Parties

It was established in Article 112, Part II of the Rome Statute.4

Each state party shall have one representative who may be accompanied
by alternates and/or advisors. State Parties gather at least once a year at
the sessions of the Assembly of State Parties. The representatives of
di昀昀erent state parties meet and provide management oversight for the
Court including electing judges and approving the ICC’s budget among
other roles.
State Parties support the court, accept the ICC’s jurisdiction, and work to
incorporate the rules stipulated in the Rome Statute into their judicial
systems thereby bringing the world closer to an ICC universal protection
under the Rome Statute.
1
International Criminal Court, ‘The ICC at a glance’ <
https://www.icccpi.int/sites/default/昀椀les/Publications/ICCAtAGlanceENG.pdf >
accessed 24 January 2023.
2
‘International Criminal Court’ (How Does the Law Protect in war),
<https://casebok.icrc.org/glossary/international criminal-court> accessed 24 January
2023.
3
Article 3 of the Rome Statute
4
Article 112 of the Rome Statute

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b) The Trust Fund for the Victims

It is a separate body from the court established by the decision of the
Assembly of State Parties for the bene昀椀t of Victims of crimes within the
jurisdiction of the court and the families of such victims following Article
79 of the Rome Statute.
The Trust Fund for Victims has a two-fold mandate:

i) To implement Court-ordered reparations

ii) To provide physical, psychological, and material support to
victims and their families.
The Trust Fund for Victims generally seeks to promote restorative
justice, reconciliation, and sustainable peace through providing
assistance, support, and reparations to victims.5
Composition and administration of the ICC
Organs of the Court
They are established under Article 34 of the Rome Statute.6

a) The Presidency
7
Established under article 38 of the Rome Statute.
It is headed by the President and the 1 st and 2nd Vice Presidents who are
elected by an absolute majority of the 18 judges of the court for a
maximum of three-year terms.
The judges are elected by the Assembly of State Parties based on their
established competence in criminal law as well as other relevant areas of
international law such as International Humanitarian Law, and
International Human Rights Law among others.
Some of the functions of the Presidency include:
i). Administration do昀昀 the Court except the O昀昀ice of the Prosecutor.
It ensures that all necessary structures and judicial support systems
are established for e昀昀icient working.
ii). Represents the court in the international and diplomatic scene.
iii). Responsible for the coordination between the Presidency, the
Prosecutor, and the Registrar.
iv). Helps with the organization of the work of the judges. It receives all
complaints concerning serious misconduct or breach of duties against a
judge, prosecutor, or the registrar.
5
Article 79 of the Rome Statute
6
Article 34 of the Rome Statute
7
Article 38 of the Rome Statute

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v). Ensures enforcement of sentences such as 昀椀nes, forfeiture orders, and

reparations imposed by the court.
b) . Chambers
It is established in Article 39 and consists of three distinct divisions. The
assignment of judges to the di昀昀erent divisions is based on the nature of
the functions to be performed by di昀昀erent divisions.8

i) Pre-Trial Chamber
Consists of not less than six judges.
It deals with questions arising at the Pre-Trial stage. Some of its principal
functions and powers are provided in Article 57 including:9
a). Plays a crucial role in determining whether an investigation is
initiated.
b). In the event a prosecutor wishes to open an investigation proprio
motu (on his initiative), he or she must obtain the authority of the Pre-
Trial Chamber.
c). Upon the request of the Pre-Trial Chamber, the Prosecutor may also
review a decision not to investigate or prosecute.
d). Issuing arrest warrants or summons to appear before court.
e). Ensures the rights of the accused are respected.
f). Prosecution of arrested persons and national security information.
ii) The Trial Chamber
It is composed of three judges. It is tasked with determining the
innocence or guilt of an accused.
Its roles are de昀椀ned in Article 64. 10 The Trial Chamber should ensure
trials are fair and expeditious and are conducted with full respect for the
rights of the accused and due regard for the protection of victims and
witnesses. It also has the power to impose penalties in the event it
reaches a guilty verdict.
iii) Appeals Chamber
11
It is established under Part VIII (articles 81-85). It is composed of the
President and four other judges.
In the event any party to the trial is dissatis昀椀ed with the decision of the
Trial Chambers, one can appeal to the Appeals Chamber. Grounds for
8
Article 39 of the Rome Statute
9
Article 57 of the Rome Statute
10
Article 64 of the Rome Statute
11
Part VIII of the Rome Statute

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appeal may be on procedural error, error of fact, error of law, or any

other ground that a昀昀ects the fairness or credibility of the court
proceedings. In its wisdom, the Appeals Chamber may decide to reverse
or amend the decision or order a new trial before a di昀昀erent trial
Chamber.
c) The O昀昀ice of the Prosecutor
It is an independent organ established in Article 42 as read together with
Part 5 of the Rome Statute. 12 It is charged with receiving referrals and
any substantiated information on crimes within the jurisdiction of the
court, for examining them and conducting investigations and
prosecutions before the court. The immediate O昀昀ice of the Prosecutor is
in charge of coordinating the di昀昀erent activities at the o昀昀ice. It is also
required, under the principle of complementarity to analyze information
relating to crimes within the jurisdiction of the court and to determine
whether states with jurisdiction over the crimes are willing or able to
investigate such crimes.
The di昀昀erent sub-divisions of the O昀昀ice of the Prosecutor include:

i. The Jurisdiction, Complementarity and

Cooperation Division
ii. The Investigation Division
iii. The Prosecution Division
iv. The Services and Legal Advisory Sections- provide linguistic and
technical infrastructure and services
d. The Registry
It is established under Article 43 of the Rome Statute. 13 It is responsible
for the non-judicial aspects of the administration and servicing of the
court. It supports the judicial and prosecutorial pillars of the
international court administratively and operationally.
It deals with matters such as:

i. Judicial
Administration
ii. Maintaining Court
records
iii. Public information
iv. Outreach and
externa relations
The Registry serves as the channel of communication of the Court.

12
Article 42 of the Rome Statute
13
Article 43 of the Rome Statute

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2. Crimes prosecuted under International

Criminal Law
The Rome statute provides for four crimes that it can only prosecute
which are provided under Article 5 of the statute to include; genocide,
crimes against humanity, war crimes, and crimes of aggression. 14
a) Genocide
These are crimes committed with the intent to destroy part or whole of a
national, ethnic, racial, or religious group. It can be through killing
members of the group, causing serious bodily/mental harm to the group,
deliberately in昀氀icting on a group conditions of life calculations and or
physical destructions, imposing measures preventing the birth of
children, transfer of children from one group to another group. 15 The act
of genocide has to be accompanied by the intent to destroy for a claim to
be valid before the court.
b) Crimes against humanity
Are crimes committed as part of a widespread or systematic attack
directed against any civilian population with knowledge? Such crimes
provided under the statute are:
i. Murder
ii. Enslavement
iii. Crimes of apartheid
iv. Enforced disappearance of persons
v. Torture, rape, sexual slavery, forced prostitution
vi. Forced pregnancy
Imprisonment or severe deprivation of physical liberty and fundamental
rights provided under international law. Among other crimes.16
c) War crimes
They tend to violate customs of war provided under the International
Humanitarian Law and laws under the Geneva Conventions. The
jurisdiction of war crimes in particular when committed as part of a plan
or policy or part of a large-scale commission of crime. For the
prosecution of war crimes, a distinction has to be made between
international armed con昀氀icts and non-international armed con昀氀icts to
determine which provision of the article to be applied. 17 Examples of such
war crimes include; willful killing, torture/inhuman treatment, willful
causing of great su昀昀ering, extensive destruction and appropriation of
14
Article 5 of the Rome statute
15
Article 6 of the Rome statute
16
Article 7 of the Rome statute
17
Article 8 of the Rome statute

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property not justi昀椀ed by military necessity, compelling prisoners of war

to serve in the forces of hostile power, murder, mutilation, and forced
labor of children under the age of eighteen, unlawful deportation, grave
breaches of Geneva Conventions under common article 3 in relations to
non-international armed con昀氀icts. Jurisdiction applies only concerning
crimes committed after entry into force of the statute by state parties.
d) Crimes of aggression
This is the planning, preparation, initiation, and execution by a person in
a position e昀昀ected to exercise control over or to direct political or
military action of a state which by character, gravity, and scale constitute
a manifest violation of the United Nations Charter. 18 Crime of aggression
majorly involves the armed forces of a state. UNGA Res 3314 (XXIX) of
14th December 1914. They include; invasion or attack by the armed
forces of a state in the territory of another state military occupation
Bombardment by the armed forces of a state against the territory of
another state or use of weapons Blockade of parts or coasts by another
armed state. Attack by the armed forces of a state on the land, sea, or air
of another state. Use of armed forces of one state which are within the
territory of another state with the agreement of the receiving state
(violations of agreements) sending by or on behalf of a state of armed
bands, mercenaries which carry out acts of armed forces against another
state of acts of such gravity. States must activate the jurisdiction through
an additional decision to take place by a two-thirds majority. The
jurisdiction can be by state referral or United Nations Security Council.
The elements of the crimes under ICC are adopted by a two-thirds
majority of the General Assembly, proposed by any state party, judges
acting by an absolute majority or the prosecutor.19
3. Forms of Jurisdiction
Jurisdiction extent of the power of a court to hear and determine cases. 20
In the context of International Law, on account of the principle of
sovereign equality, international courts tend to have only that jurisdiction
which the states have ceded to them expressly or implicitly. 21 Jurisdiction
is normally described as being prescriptive or enforcement in nature.
Prescriptive jurisdiction refers to the state’s ability to de昀椀ne its laws in
any matter it chooses.22 On the other hand enforcement jurisdiction

18
Article 8 ibis 3 of the Rome statute
19
Article 9 of the Rome statute
20
Britannica, De昀椀nition of Jurisdiction. -< https://www.britannica.com/topic/jurisdiction
>
21
Brad R. Roth, The International Law of Sovereign Equality Get access, October 2011,
Oxford University Press- <
https://academic.oup.com/book/8765/chapter-abstract/154897084?
redirectedFrom=fulltext >
22
Ilias Bantekas, ‘International Criminal Law’(Oxford and Portland, Oregon, 2010

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refers to the state’s ability to enforce those laws. 23 In cases where two
states are both claiming the authority to exert jurisdiction over an
individual or a speci昀椀c matter, it's important to note that there is no
inherent assumption that one state's claim is superior to the other.
Instead, international law requires the presence of a legal connection
between the state wishing to assert jurisdiction and the particular
behavior it intends to govern. These legal connections typically fall into
two categories: territoriality and nationality.
1. Territoriality Principle
The territoriality principle in international criminal law is a fundamental
concept that establishes the jurisdiction of a state to prosecute and
punish individuals for crimes committed within its territory, regardless of
the nationality of the perpetrator or the victim. 24Territorial jurisdiction is
grounded in the idea that a state has the inherent right to regulate and
adjudicate matters that occur within its borders. 25 This means that a
state can exercise criminal jurisdiction over individuals who commit
crimes within its territory.
The Case of Ahmed Ghailani:26
- Ahmed Ghailani, a Tanzanian national, was involved in the 1998
United States embassy bombings in Tanzania and Kenya. These
bombings resulted in signi昀椀cant loss of life and destruction.
- Ghailani was apprehended and eventually transferred to the United
States for prosecution.
- The U.S. invoked the Territoriality principle because Ghailani
though being a Tanzanian national, bombed U.S. embassies which
were considered United States territory. This principle provided a
legal basis for the United States to prosecute him for his role in the
attacks.

While the territoriality principle is broad, it is not absolute. There are

limitations and exceptions, such as diplomatic immunity and the principle
of non-interference in the internal a昀昀airs of other states. An example of
this limitation is the case below.

Arrest Warrant of 11 April 2000 (Democratic Republic of the

Congo v. Belgium)27

23
Ilias Bantekas, ‘International Criminal Law’(Oxford and Portland, Oregon, 2010
24
See the Lotus Case Lotus', France v Turkey, Judgment, Judgment No 9, PCIJ Series A
No 10, ICGJ 248 (PCIJ 1927), (1935) 2 Hudson, World Ct Rep 20, 7th September 1927,
League of Nations (historical) [LoN]; Permanent Court of International Justice
(historical) [PCIJ]
25
Ilias Bantekas, ‘International Criminal Law’ (Oxford and Portland, Oregon, 2010)335.
26
United States of America v. Ahmed Khalfan Ghailani,

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This case before the International Court of Justice (ICJ) dealt with
Belgium's attempt to prosecute a sitting foreign minister of the
Democratic Republic of the Congo for alleged war crimes and crimes
against humanity. The ICJ ruled that Belgium's assertion of universal
jurisdiction (a related concept) was not compatible with customary
international law, emphasizing that territorial jurisdiction is the primary
basis for exercising jurisdiction.

2. The Nationality/Active Personality Principle

The Active Personality Principle, also known as the Nationality Principle,
is a jurisdictional concept in international law that allows a state to
assert jurisdiction over crimes committed by its nationals, even when
those crimes occur outside its territory. In essence, it enables a state to
exercise legal authority over its citizens who have engaged in criminal
conduct abroad. States have an inherent right to exercise jurisdiction
over their nationals irrespective of the place where the relevant acts
occurred, even if all elements of the o昀昀ense took place abroad. 28 In many
cases, anyone born within the territory of a state becomes the national of
that state. More so, nationality could also be acquired by descent where
either or both parents accord their nationality to their children. 29 The
application of both territorial and nationality principles and dual
nationality is usually limited to serious crimes e.g. murder and certain
sexual o昀昀enses.30 This is because it could create parallel jurisdictions and
possible double jeopardy.31

3. Passive Personality Principle:

The Passive Personality Principle is a jurisdictional concept in
international law that allows a state to assert jurisdiction over a crime
committed against its nationals, even if the crime occurred outside its
territory. In other words, it gives a state the authority to prosecute
individuals who have harmed or victimized its citizens abroad.
The Eichmann Case:32
- Adolf Eichmann, a high-ranking Nazi o昀昀icial, was responsible for
organizing the logistics of the Holocaust during World War II. After
the war, he 昀氀ed to Argentina.

27
Arrest Warrant of 11 april 2000 (democratic republic of the congo v. belgium) (merits)
judgment of 14 february 2002 .- <
https://www.icj-cij.org/public/昀椀les/case-related/121/13743.pdf >
28
Ilias Bantekas, ‘International Criminal Law’ (Oxford and Portland, Oregon, 2010)335.
29
Ilias Bantekas, ‘International Criminal Law’ (Oxford and Portland, Oregon, 2010)335.
30
Ian Brownlie, ‘Principles of International Law’ (7th Edition, Oxford University Press
2008) 304.
31

32
Attorney General v. Adolf Eichmann, Criminal Case No. 40/61 Judgement of the
District Court of Jerusalem, 11 December 1961.

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- In 1960, Israeli agents captured Eichmann in Argentina and

brought him to Israel to stand trial for his role in the Holocaust.
- Israel invoked the passive Personality Principle to assert
jurisdiction over Eichmann because he was an Israeli national (having
acquired Israeli citizenship through the Law of Return), even though
his crimes were committed outside of Israel. The principle allowed
Israel to try and ultimately execute him for war crimes, crimes against
humanity, and other o昀昀enses related to the Holocaust.

4. Universality Principle
The Universality Principle, also known as Universal Jurisdiction, is a
jurisdictional concept in international law that allows any state to
prosecute individuals for certain heinous international crimes, regardless
of where the crimes were committed, the nationality of the accused, or
the nationality of the victims. This principle is based on the belief that
some crimes are so grave that they concern all of humanity, and any
state can exercise jurisdiction over them.
Gambia vs Myanmar33
The case of Myanmar vs. Gambia centers on allegations of genocide
brought before the International Court of Justice (ICJ). Gambia,
representing the Organization of Islamic Cooperation, has accused
Myanmar of committing genocide against the Rohingya Muslim minority
in Rakhine State, citing widespread violence and displacement. In
response, Myanmar has denied the allegations, contending that its
military operations were aimed at national security. In January 2020, the
ICJ issued provisional measures against Myanmar to prevent further
harm to the Rohingya population. In a Press release on 22 July 2022, the
court found that it had jurisdiction based on universal jurisdiction.34
The Case of Augusto Pinochet:
Augusto Pinochet was the former dictator of Chile, known for widespread
human rights abuses during his regime, including torture,
disappearances, and extrajudicial killings. Pinochet was arrested in
London in 1998 based on an extradition request from Spain. Spain
sought his extradition for his role in the torture and killing of Spanish
citizens during his rule. The arrest of Pinochet and the subsequent legal
proceedings were based on the Universality Principle, as Spain argued
that these crimes constituted o昀昀enses against all of humanity, allowing
33
Application of the Convention on the Prevention and Punishment of the Crime of
Genocide (The Gambia v. Myanmar), International Court of Justice
34
Application of the Convention on the Prevention and Punishment of the Crime of
Genocide (The Gambia v. Myanmar), Press release 22 July 2022.

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any state to exercise jurisdiction. Ultimately, Pinochet was not

extradited, but the case highlighted the application of universal
jurisdiction.
5. The Complementarity Principle and Other Grounds for
Inadmissibility
The Principle of Complementarity has been discussed by several scholars
over time. It is premised on the primary jurisdiction of national courts
and the secondary jurisdiction of the International Criminal Court (the
Court). In essence, the Court complements national courts if they in fact
and law can investigate and prosecute crimes committed by the
perpetrator within their jurisdiction. In her article, Linda Carter echoes
Roy S. Lee while de昀椀ning this principle and states that:
“This principle means that the Court will complement, but not
supersede, national jurisdiction. National courts will continue to
have priority in investigating and prosecuting crimes within their
jurisdiction but the International Criminal Court will act when the
national courts are ‘unable or unwilling’ to perform their tasks.”35
Legal Basis for the Principle of the Complementarity Principle
The Rome Statute (the Statute) encapsulates this principle hence
providing a legal foundation to this e昀昀ect. The preamble highlights the
principle, as indicated in paragraph 10, stating that the Court shall be
complementary to national courts’ jurisdiction. 36 In circumstances where
the national court may lack the capacity to move forward with a
particular case, the Statute has provided for the threshold required to
establish the foregoing. Article 17 highlights the issue of admissibility. It
grants the Court the authority to determine whether a case is admissible
or inadmissible based on the following criteria:37
1. The case is being investigated or prosecuted by a State that has
jurisdiction over it unless the State is unwilling or unable
genuinely to carry out the investigation or prosecution;
2. The case has been investigated by a State that has jurisdiction over
it and the State has decided not to prosecute the person
concerned, unless the decision resulted from the unwillingness or
inability of the State genuinely to prosecute;
3. The person concerned has already been tried for conduct that
is the subject of the complaint, and a trial by the Court is not
permitted under Article 20, paragraph 3;
4. The case is not of su昀昀icient gravity to justify further action by
the Court.
35
Linda Carter, ‘The Principle of Complementarity and the International Criminal Court:
The Role of Ne Bis in Idem’ 8(165) Santa Clara (2010) 2.
36
Preamble of the Rome Statute to the International Criminal Court, para 10.
37
The Rome statute, Article 17(1).

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The provision goes further in subsection 2 and illustrates the

requirements for establishing the unwillingness of a state to conduct
investigations and securing a prosecution of the case at hand. It states:38
1. The proceedings were or are being undertaken or the national
decision was made to shield the person concerned from criminal
responsibility for crimes within the jurisdiction of the Court
referred to in Article 5;
2. There has been an unjusti昀椀ed delay in the proceedings which in
the circumstances is inconsistent with an intent to bring the person
concerned to justice;
3. The proceedings were not or are not being conducted
independently or impartially, and they were or are being
conducted in a manner which, in the circumstances, is inconsistent
with an intent to bring the person concerned to justice.
Additionally, subsection 3 indicates the criteria for establishing whether
the state in question is completely unable to investigate or even
prosecute a case by dint of the collapse of its judicial system. 39 This in
turn grants the Court to take over in the matter and move to investigate
the perpetrator(s) and prosecute them accordingly.

Case Studies on Admissibility

1. Prosecutor v Germain Katanga and Mathieu Ngudjolo Chui (2009)
The defendants were charged with being an accessory to crimes against
humanity (murder) and four counts of war crimes: murder, attacking a
civilian population, destruction of property, and pillaging. All the counts
were committed during the 24th February 2003 attack on the Bogoro
village in the Ituri district of the DRC. The question of admissibility was
disputed by the defendant, Katanga because the national courts in DRC
had already initiated proceedings against him. In determination, the
Appeals Chamber held that the Complementarity principle establishes a
clear balance between the function of safeguarding the primacy of the
national proceedings and that of the ICC.93 On the other hand, the ICC
must be able to intervene in cases of inability or failure by the state to
prosecute.94 The Appeals Chamber also established that the question of
admissibility arose at a time when there were no proceedings against
Germaine Katanga in the DRC, neither for the crime, he was charged
with at the time nor any other crimes.40
2. Prosecutor v Abdullah Al Senussi (2003)

38
The Rome Statute, Article 17(2).
39
The Rome Statute, Article 17(3).
40
Prosecutor v. Germain Katanga & Mathieu Ngudjolo Chui ICC-01/04-01/07.

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The case against Mr. Al-Senussi, Libya’s former head of Military

Intelligence, arises from the situation in Libya, which was referred to the
Court by United Nations Security Council Resolution 1970 in February
2011. On June 27, 2011, Pre-Trial Chamber I issued the arrest warrant
against Mr. Al-Senussi for crimes against humanity committed in
Benghazi by members of the armed forces under his control during
February. The Libyan government raised an admissibility issue by dint of
article 19 of the Statute because they had already commenced national
proceedings against the defendant. In determination, the Pre-Trial
Chamber was of the view that the Libyan government’s proceedings
covered the “same case” as that before the Court within the meaning of
Article 17(1)(a). Further, it opined that prosecution of “ordinary crimes”
was su昀昀icient to the extent that the case covered the same conduct
hence making the case inadmissible in the Court.41
3. Prosecutor v Thomas Lubanga (2007)
On 29 January 2007, Pre-Trial Chamber I of the International Criminal
Court (the ICC) handed down its decision con昀椀rming the charges brought
against Thomas Lubanga Dyilo, the 昀椀rst defendant to appear. The
warrant issued by the Pre-Trial Chamber alleged that Lubanga was
criminally responsible under Article 25(3)(a) of the Rome Statute146 for
the war crimes of enlisting children under 昀椀fteen, conscripting children
under 15, and using children under 15 to participate actively in hostilities
punishable under either article 8(2)(b)(xxvi) or Article 8(2)(e)(vii) of the
Statute. On the issue of admissibility based on national proceedings
being conducted against Mr. Lubanga, the Chamber held that 'it is a
condition sine qua non for a case arising from the investigation of a
situation to be inadmissible that national proceedings encompass both
the person and the conduct which is the subject of the case before the
Court. Therefore, the case was inadmissible.42
Initiation of proceedings before the ICC
There are 3 ways to institute proceedings at the International Criminal
Courts. Article 13 of the Rome statute provides for how proceedings
before the ICC may be instituted. The Court may exercise its jurisdiction
concerning a crime referred to in Article 5 by the provisions of this
Statute if:
1. A situation in which one or more of such crimes appears to have
been committed is referred to the Prosecutor by a State Party by
Article 14;

41
Prosecutor v Saif Al-Islam Gadda昀椀 and Abdullah Al-Senussi: Decision on the
Admissibility of the Case against Abdullah Al-Senussi ICC-01/11-01/11.
42
Prosecutor v Thomas Lubanga, Decision of Pre-Trial Chamber I of the International
Criminal Court ICC-01/04-01/06.

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2. A situation in which one or more of such crimes appears to have

been committed is referred to the Prosecutor by the Security
Council acting under Chapter VII of the Charter of the United
Nations; or

3. The Prosecutor has initiated an investigation in respect of such a

crime by article 15.43

1. Referral of a situation by a State Party to the Prosecutor of

the ICC

A State Party may refer to the Prosecutor a situation in which one or

more crimes within the jurisdiction of the Court appear to have been
committed requesting the Prosecutor to investigate the situation to
determine whether one or more speci昀椀c persons should be charged with
the commission of such crimes. As far as possible, a referral shall specify
the relevant circumstances and be accompanied by such supporting
documentation as is available to the State referring the situation.
The ICC must prosecute cases referred to it by state parties in case the
latter is unwilling and unable to do so. This is known as the principle of
complementarity which is provided under paragraph 10 of the preamble
to the Rome statute. Prosecutor vs. Germain Katanga. Germain
Katanga was accused of crimes against humanity. He disputed the
admissibility of his case before the ICC because the DRC had already
initiated proceedings against him. The appeal’s chamber noted that ‘The
Appeals Chamber found that the complementarity principle, as enshrined
in the Statute, strikes a balance between safeguarding the primacy of
domestic proceedings vis-à-vis the ICC, on the one hand, and, on the
other, the goal of the Rome Statute to “put an end to impunity”. If
States do not or cannot investigate and, where necessary,
prosecute, the ICC must be able to intervene. The Appeals Chamber
also noted that, at the time of the admissibility proceedings in the
present case, there were no proceedings against Mr. Katanga in the
DRC, whether for the crimes with which he is charged before this Court,
or for other alleged crimes.’
Cases have been referred to by the governments of Uganda, the Central
African Republic, the Democratic Republic of Congo, and Mali relating to
the civil wars and other con昀氀icts that have raged in those countries. In
2021, the court opened an investigation into alleged crimes against
humanity in Venezuela based on a referral from half a dozen member
countries, mostly in South America44
2. Referral to the Prosecutor of the ICC by the United Nations
Security Council (UNSC)

43
Article 13 of the Rome statute.
44
Council on Foreign Relations ‘ The Role of the International Criminal Courts’
https://www.cfr.org/backgrounder/role-international-criminal court#:~:text=The
%20Hague%2Dbased%20ICC%20seeks,Russia%2C%20and%20the%20United
%20States Accessed on 25 September 2023.

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The UNSC is mandated by Chapter 7 of the UN charter to take any

necessary measures to restore international peace and mostly this
happens to members who are not parties to the Rome statute however
they have accepted the jurisdiction of the Court. The ICC does not only
get its jurisdiction from a state ratifying the Rome Statute, the Security
Council can refer the situation to the court under Chapter VII of the UN
Charter.45 The UN Secretary-General Ko昀椀 Annan (as he was then)
established the International Commission of Inquiry on Darfur in October
2004 which published a report on the 7th day of April 2005 with 昀椀ndings
that war crimes and crimes against humanity had been committed. The
situation in Darfur, Sudan was referred to the ICC by the Security
Council under Resolution 1593 (2005). The prosecutor v Hussein
Abdel Raheem, Ahmad Harun and Ali Muhamed Kushayb, Banda
Abakaer, Omar Hassan Al Bashir.46
The situation of Libya was referred to the court by the Security Council
on the 26th day of February 2011 for investigations through Resolution
1970. The prosecutor o昀昀icially opened the investigation on 3rd March
2011 the case of Prosecutor v Saif Al-Islam Gadda昀椀. The situation
involved mass violence that occurred throughout Libya where Colonel
Gadda昀椀 ruled since 1969 instituting a legal and political regime, which
allowed him to rule with absolute power. Initial protests began on the
15th day of February 2011 when protestors gathered in the police
headquarters to protest the arrest of two Libyan lawyers and human
rights activists. The Libyan forces openly 昀椀red and killed the civilians.
This continued to manifest in various locations but was prominent in the
Benghazi and Misrata.47
3. The Prosecutor's initiative

Article 15 of the Rome statute goes deep to explain how this happens.
1. The Prosecutor may initiate investigations proprio motu based on
information on crimes within the jurisdiction of the Court.
2. The Prosecutor shall analyze the seriousness of the information
received. For this purpose, he or she may seek additional
information from States, organs of the United Nations,
intergovernmental or nongovernmental organizations, or other
reliable sources that he or she deems appropriate, and may receive
written or oral testimony at the seat of the Court.
3. If the Prosecutor concludes that there is a reasonable basis to
proceed with an investigation, he or she shall submit to the Pre-
Trial Chamber a request for authorization of an investigation,
45
The Chapter of the Charter empowers the council to undertake decisions, binding on
States, to maintain or restore international peace and security; it was under this
Chapter that the Council established the two ad hoc Tribunals.
46
International Criminal Court Project, ‘Situation and Cases Overview’ https://www.aba-
icc.org/about-the-icc/situations-cases-overview/ accessed on 25 September 2023.
47
‘Situations and Cases-Overview’ [2020] available at https://www.aba-icc.org/about-
the-icc/situations-cases-overview/ accessed on 25 September 2023.

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together with any supporting material collected. Victims may make

representations to the Pre-Trial Chamber, by the Rules of
Procedure and Evidence
4. If the Pre-Trial Chamber, upon examination of the request and the
supporting material, considers that there is a reasonable basis to
proceed with an investigation and that the case appears to fall
within the jurisdiction of the Court, it shall authorize the
commencement of the investigation, without prejudice to
subsequent determinations by the Court about the jurisdiction and
admissibility of a case.
5. The refusal of the PreTrial Chamber to authorize the investigation
shall not preclude the presentation of a subsequent request by the
Prosecutor based on new facts or evidence regarding the same
situation.
6. If, after the preliminary examination referred to in paragraphs 1
and 2, the Prosecutor concludes that the information provided does
not constitute a reasonable basis for an investigation, he or she
shall inform those who provided the information. This shall not
preclude the Prosecutor from considering further information
submitted to him or her regarding the same situation in the light of
new facts or evidence.48
In 2010, the ICC opened an investigation into violence that killed more
than one thousand people following Kenya’s 2007 presidential election. It
eventually named Kenyatta and 昀椀ve other major political 昀椀gures as
suspects of crimes against humanity. The investigation continued as
Kenyatta won the presidency in 2013, with fellow ICC suspect William
Ruto as his running mate. The court dropped the charges against
Kenyatta the following year and those against Ruto in 2016, with the
prosecutor’s o昀昀ice claiming that the Kenyan government was
uncooperative and that witness tampering had undermined the case. 49 In
2017 the ICC opened an investigation in Burundi following the
government crackdown on opposition protest. This investigation made
Burundi withdraw from the Rome statute the same year.50
4. Deferrals
Deferrals simply stop or suspend any investigations or prosecutions.
Article 16 of the International Criminal Court Statute stipulates that ‘No
investigation or prosecution may be commenced or proceeded with under
this Statute for a period of 12 months after the Security Council, in a
resolution adopted under Chapter VII of the Charter of the United
Nations, has requested the Court to that e昀昀ect; that request may be
48
Article 15 of the Rome statute.
49
Council on Foreign Relations ‘ The Role of the International Criminal Courts’
https://www.cfr.org/backgrounder/role-international-criminal court#:~:text=The
%20Hague%2Dbased%20ICC%20seeks,Russia%2C%20and%20the%20United
%20States Accessed on 25 September 2023.
50
Council on Foreign Relations ‘ The Role of the International Criminal Courts’
https://www.cfr.org/backgrounder/role-international-criminal court#:~:text=The
%20Hague%2Dbased%20ICC%20seeks,Russia%2C%20and%20the%20United
%20States Accessed on 25 September 2023.

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renewed by the Council under the same conditions. ‘The above unlike
Article 23(3) of the 昀椀rst draft of the ILC which expected the court not to
begin any prosecution or investigation on any situation that was before
the Security Council as a threat to or breach of the peace unless the
Council decides. According to Dann (2016), the drafting of Article 16 was
very contentious, re昀氀ecting the widely divergent views expressed
throughout the negotiating process on what the link should be between
the Court as the judicial body and the UNSC as a political organ of the
United Nations. The controversy escalated as Article 16 was held by
some states as a codi昀椀cation of the right of the UNSC, a political body, to
interfere with the work of a judicial body thus undermining the stature of
the court as an independent and impartial judicial body.51
The question of deferral powers of the UNSC continues particularly
because there has been potential abuse of this power by some permanent
members of the council such as the US and also the council has not
deferred cases before the ICC whose proponents believe are meritorious.
The refusal to defer cases like that of Kenya and Sudan has had negative
consequences on the 昀椀ght against impunity. Although Article 16 of the
ICC’s statute together with Article 39 of Chapter VII of the charter of the
UN, has attempted to specify the criteria for the deferral of cases, the
UNSC’s refusal to defer these cases has been termed as bias and malice
towards African countries.
Deferral of cases in the ICC occurs following the request of a state whose
individuals are party to that case. The deferral request is presented to
the security council which in turn decides whether or not to defer a case.
The decision to defer an ICC investigation or prosecution requires an
a昀昀irmative vote of nine members of the 15-member security council. A
negative vote by one of the veto powers automatically prevents the
resolution from being adopted.25 If a resolution to defer a case passes, it
goes on for a period of 12 months. Once 12 months have lapsed, the
resolution has to be renewed by the Security Council through voting.
There is no limitation as to the number of times a case may be deferred
by the Security Council. There are no cases that have been deferred by
the United Nations Security Council so far, but there have been several
failed applications of deferral from states. One such state is Kenya. A
request to defer the Kenyan case against Uhuru Kenyatta and Ruto was
presented by the Kenyan permanent representative to the secretary
general and the president of the Security Council. The African Union
came in later and also requested that the UN Security Council defer the
case against Uhuru Kenyatta and William Ruto for one year to allow them
to deal with the aftermath of an attack by Al Qaeda.
Kenya sought deferral of their case because; Breach of peace or acts of
aggression were likely to arise in light of the prevailing terrorist threats
that existed during that time in the Horn of Africa and East Africa and to

51
Dann Mwangi, ‘Deferral and Enforcement Powers of the United Nations Security
Council under the Rome Statute: A Case Study of Kenya’ (2016) Vol 4 No 7 International
journal of Education and Research 15,18

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provide time during the deferral, for Kenya, in consultation of other state
parties to the Rome Statute to consider how best to respond to the threat
to International peace and security. The resolution was not however
passed. Seven members of the Security Council voted in favor of the
deferral while eight members voted against it. This did not meet the
threshold for deferral since such resolutions need nine votes and no
vetoes to pass. France, the United States and Britain being vetoes
abstained from voting.
6. Enforcement of Decisions
The objectives of the International Criminal Court will be futile if it
cannot take the perpetrators of grave breaches of the crimes within the
jurisdiction of international criminal law, to their logical conclusion.
These crimes usually are genocide, war crimes, crimes against humanity
and crimes of aggression. The Rome statute of the international criminal
court is a two-pillar system: the judicial pillar represented by the courts
and the enforcement pillar represented by the states and both have a
legal obligation to cooperate. The International Criminal Court can
enforce its decisions either directly or indirectly. Indirect where it is
under the jurisdiction and national criminal law of states and direct
where the international court takes on the purpose.
It should be noted that international law provides that states may
prosecute for crimes committed on their territory (territoriality
principle), by their Nationals (nationality principle) or against their
Nationals (passive personality principle). Universal jurisdiction on the
other hand provides that a person may be tried not only by states linked
to the crime but also by other states, this remedies the inability of the
decentralized international system to enforce even its most fundamental
laws.
The enforcement regime of the International Criminal Court is based on
3 principles;
i. Enforcement of sentences based on prison facilities available in
respective states and is subjected to the laws of that state;
ii. Enforcement of sentences is supervised by the court;
iii. The state where the enforcement takes place is bound by sentences
imposed by the court.
The International Criminal Court (ICC) enforces its decisions primarily
through diplomatic and legal mechanisms, as it does not have its
enforcement arm like a police force. 52It relies on cooperation with
countries worldwide for support, particularly for making arrests,
transferring arrested persons to the ICC detention centre in The Hague,
freezing suspects' assets, and enforcing sentences.
International Criminal Court typically works as follows:

52
Https://www.icc-cpi>about>how-the-court-works

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1. Arrest warrants: when the ICC issues arrest warrants for

individuals accused of crimes Within its jurisdiction, it relies on
Member States to execute these warrants. Member states are
obligated to cooperate with the International Criminal Court and
arrest individuals on their territory if they are subject to an ICC
warrant. Article 89(1) of the Rome statute places an obligation on
states to surrender accused persons to the Court. 53The Court may
transmit a request for the arrest and surrender of a person,
together with the material supporting the request outlined in
Article 91, to any State on the territory of which that person may
be found and shall request the cooperation of that State in the
arrest and surrender of such a person. States Parties shall,
following the provisions of this Part and the procedure under their
national law, comply with requests for arrest and surrender.
2. National Prosecutions: The ICC encourages Member States to
conduct their prosecution of individuals accused of international
crimes. If a member state conducts a credible prosecution, the ICC
may defer its jurisdiction to the national Court. Through support
and cooperation, the International Criminal Court can leverage the
resources of member states to ensure that its decisions are
respected.
3. Cooperation: The ICC relies on the cooperation of member states
for various aspects of its work, including the collection of evidence,
protection of witnesses, and the enforcement of sentences. States
are obligated to cooperate with the ICC under the Rome Statute,
which established the court.54 The Rome statute of the international
criminal court states that the court shall have the authority to make
requests to state parties for cooperation, and the court may invite
any state not party to the statute to assist, based on an ad-hoc
arrangement. The International Criminal Court may request the
arrest and surrender of an individual to the court, and when it
decides to indict a person, it will issue a request to a member state
or states specifying how the state is expected to cooperate. It then
coordinates with the state to transport the person to the
international criminal court, in the Hague, Netherlands.

State cooperation takes two major forms:

i. Logistical, technical and 昀椀nancial cooperation.
ii. International diplomatic support for international justice, including
economic pressure, and use of military force to support arrests in
narrowly de昀椀ned circumstances.
For the international criminal court, cooperation entails:
i. Identifying and disclosing the whereabouts of wanted persons.
ii. Taking and producing evidence.
iii. Questioning any person being investigated or prosecuted.
53
Rome statute of the international criminal court 89(1)
54
Rome statute, article 87

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iv. Serving documents.

v. Facilitating the voluntary appearance of witnesses and experts
before courts.
vi. Temporarily transferring persons.
vii. Examining places or sites (exhumation and examining grave sites)
viii. Executing searches and seizures.
ix. Providing records and documents.
x. Protection of victims and witnesses and preserving evidence.
xi. Identifying, tracing and freezing proceeds, property and assets for
eventual forfeiture.
xii. Any other assistance which helps facilitate investigation or
prosecutions by the international criminal court.
Standard police work and assistance from Interpol and the state in which
the suspect committed the alleged crime are su昀昀icient to apprehend and
prosecute or extradite the suspect. In other cases, securing arrest is hard
because the perpetrators or allies remain in power, thus requiring other
forms of state cooperation, upon which the United Nations Security
Council is often called.
The tools available include;
i. Political pressure
ii. Sanctions- imprisonment, 昀椀nes, forfeiture of proceeds, property or
assets derived from the committed crime.
iii. Conditionality- e.g. aid conditionality played a key role in the
surrender of Milosevic
iv. Use of military force to apprehend suspects- e.g. the arrest of
Charles Taylor, former Liberian president.
4. Sanctions and pressure: In cases where member states do not
cooperate with the ICC, the United Nations Security Council can take
action. It has the authority to impose sanctions or take other measures to
encourage compliance with ICC decisions. ICC does not have the
authority to impose sanctions on states for non-compliance with its
decisions or requests for cooperation. Instead, it relies on a combination
of diplomatic pressure, international cooperation, and the involvement of
the United Nations Security Council to address non-compliance issues.
5. Public Pressure and Stigmatization: The ICC can also have an
impact through public pressure and the stigmatization of individuals
accused of international crimes. Accused persons may 昀椀nd it di昀昀icult to
travel internationally or engage in normal diplomatic activities. The ICC
can alternatively engage in diplomatic e昀昀orts to persuade states to
cooperate with its investigations and proceedings. This often involves
negotiations and discussions between the ICC, the state in question, and
other interested parties, such as other states and international
organizations.
6. Referral to the United Nations Security Council: The ICC can
refer cases of non-compliance to the United Nations Security Council
(UNSC). The UNSC has the authority to take action under its powers to

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maintain international peace and security. This may include imposing

sanctions or other measures on the state in question to compel
compliance.
7. Assistance from NGO: Non-governmental organizations (NGOs)
often play a role in monitoring ICC proceedings, advocating for justice,
and supporting victims. They can help draw attention to cases and put
pressure on governments to cooperate.
8. Completion Strategies: The ICC also employs completion strategies,
which include measures to encourage accused individuals to surrender
voluntarily and to facilitate the enforcement of sentences.
The e昀昀ectiveness of International Criminal Court (ICC) enforcement
can vary depending on the political will of member States and the
speci昀椀c circumstances of each case. In some cases, individuals
indicted by the ICC have been successfully arrested and tried, while in
others, enforcement has been more challenging.

Resolutions
The International Criminal Court needs more international
recognition, respect, and support for it to properly exercise
its power. The international criminal court needs a task force from its
signatories to create a joint task force to enforce international criminal
court rulings and serve arrest warrants. There’s a need to regionalize
international criminal law and criminal justice as a whole by establishing
regional criminal courts, exercising universal jurisdiction with regional
preference, introducing the regional presence of international criminal
courts and establishing specialized domestic courts with regional judges.
States should adopt the Rome Statute, and ensure state parties adhere to
its provisions
1. Historical Development of Genocide
The term genocide was recently coined, though acts amounting to
genocide have been perpetuated throughout history. The word
“Genocide” was derived by Raphael Lemkin after World War II from the
words “genos” which means race or nation and “cide” which means kill.
Genocide is the deliberate killing of a large number of people from a
particular nation or ethnicity with the intent of destroying that nation or
group.5556 Genocide is a crime that can take place in time of war and that
of peace.57 The Convention on the Protection and Punishment of the
Crime of Genocide de昀椀nes it as killing, causing serious bodily harm or

55
The Rome Statute establishing the International Criminal Court, 17 July 1998, UNTS vol. 2187, No. 38544,
Article
56
.
57
Convention on the Prevention and Punishment of the Crime of Genocide, 9 December 1948, GA Res. 260 A
(III),
Article 1.

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mental harm, deliberately in昀氀icting conditions of life to bring physical

destruction, imposing measures intended to prevent births and forcibly
transferring children of the group to another group.58 It is further
described as a crime committed with the intent to destroy a national,
ethnic, racial or religious group, in whole or in part.59
Moreover, the International Court of Justice has stated that this is a non-
derogatory norm that forms part of international customary law and
doesn’t need rati昀椀cation of states for them to be bound by it and is thus
prohibited by international law.

1.1. The occurrence of genocide

1.1.1. Pre-world war II

During this time, 1915, there was the Armenian Massacre led by the
Turkish Ottoman empire. This happened during the time World War 1
was taking place. It was accompanied by mass executions, death marches
in the Syrian Desert and forced islamization of the Armenian children
and women. This was ethnic cleansing to create a Turkish state free from
Christians.
This led to the Armenian soldiers being disarmed and killed and the
intellectuals were being deported. Those who were sent to the death
marches and survived were then taken to concentration camps.

1.1.2. World-war II
This was the period that laid a foundation on genocide as a result of the
atrocities committed during the holocaust. The holocaust was when the
European Jews were being killed by the Nazi Germany during Adolf
Hitler’s reign. Germans referred to the killing of the Jews as “the 昀椀nal
solution to the Jewish question”.
It started o昀昀 as discrimination against the Jews in Germany by the
Germans. Their businesses were being boycotted, they were being
dismissed from civil service and they stopped going to German schools as
they had become restricted. They were deprived of their civil and
political rights. Nuremberg Laws were promulgated and it divided the
Jews and Germans. The Jews had to seek refuge in other countries like
Palestine and the United States and other countries that had less German
control and dominance.
This discrimination then advanced to not only the Jews but some groups
such as the Africans who had settled in the Rhine, homosexuals and even
58
Convention on the Prevention and Punishment of the Crime of Genocide, Article 2.
59
Convention on the Prevention and Punishment of the Crime of Genocide, Article 2.

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the Germans who were disabled. The Germans began using

concentration camps and gas chambers, sterilization of the Jews,
conversion therapy for the Homosexuals and mass crematoria for the
disabled Germans as they were seen to be life unworthy of life. They
build extermination centers to use carbon monoxide as their choice of
gas for the gas chambers they put the Jews in, especially pregnant
women and children. Those who had muscles were used for forced labor
until they had no strength left and were then killed in the gas chambers.
There were mass killings for which upon conclusion they dug up the
bodies and burnt them to erase evidence of the atrocities. Up to date the
Germans do not agree with these acts as Genocide and they say these
deaths were all a result of World War II. Countries like Hungary, Ukraine
and Poland aided in the commission of these acts of genocide against the
Jews by giving military support to the Germans and even executing these
acts in their own jurisdictions. An aftermath of the Holocaust was the
adoption of the Genocide convention and categorization of Genocide as a
prohibited crime in the international community. The International
Military tribunal was set up to indict the nazi o昀昀icials for the acts that
amounted to genocide and later after these atrocities were revealed to
the UN General Assembly, genocide was declared to be a crime
punishable by international law.

1.1.3. Post-World war II

There was the Bosnian Genocide in the former Yugoslavia. It was
composed of 6 states, Bosnia and Herzegovina, Croatia, Macedonia,
Montenegro, Serbia and Slovenia, that later had their boundaries drawn
under ethnic lines. Tensions increased after the death of Josip Tito, their
president and they started con昀氀icting over territories of the former
country. Serb forces would detain Muslims and Croats in concentration
camps and rape was used as a tool of torture.
Another one of the most discussed atrocities were those committed in
Rwanda by the Tutsi against the Hutu tribe. At the beginning of the war,
the Hutu had more political power than the Tutsi and there were a lot of
Tutsi refugees in the neighboring countries due to ethnic con昀氀icts
between them and the Hutu. The Rwandan Patriotic Front was formed in
1988, consisting majorly of Tutsi refugees of Uganda, as a military
movement that wanted to repatriate all the refugees to Rwanda. They
also had the intention to reform the government by power sharing. In
1990, RPF launched an attack in Rwanda that led to displacement of a lot
of people and thus the government labeled all Tutsis, even those living in
Rwanda, as perpetrators of the attacks. The UN sent peacekeepers and
humanitarians to aid the situation but the political leaders at that time
subverted these acts.

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On April 6, 1994, the presidents of Rwanda and Burundi died in a plane

crash that then led to panic and massacres in the country. Over 1 million
people were estimated to be killed and over 150,000 women were being
raped. Soldiers and police and the militia executed the Tutsi in their
villages and towns. Hutu gangs searched for hiding Tutsis in the
churches and were murdered by machetes and ri昀氀es. RPF later took
control of the entire Rwandan Territory and all the genocidaires and
government o昀昀icials that aided in these acts were forced to 昀氀ee to
Congo. There were creations of the ad hoc tribunals, International
Criminal Tribunal for Rwanda, to deal with the perpetrators of the
genocide in Rwanda and also International Criminal Tribunal for the
former Yugoslavia to deal with those who committed the atrocities in the
former Yugoslavia. All these acts of genocide set a precedent on the
development on the principles surrounding genocide as well as the laws
of Genocide. A major development in the law that governs genocide is the
“Genocide Convention”.

1.2. The development of genocide in international criminal law

These events that occurred during the world war shook the conscience of
the world and there was need for codi昀椀cation of the crime of genocide.
This development occurred in the Nuremberg Trials, the adoption of the
Convention on the Prevention and Punishment of the Crime of Genocide,
the establishment of the International Criminal Tribunal for the former
Yugoslavia, the establishment of the International Criminal Tribunal for
Rwanda and the eventual establishment of the International Criminal
Court.

1.2.1. Nuremberg IMT trials

These trials occurred within two years (1945-1946). It followed World
War II and it marked a critical moment in the development of
international criminal law. The International Military

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Tribunal (IMT) prosecuted Nazi leaders for war crimes, crimes against
humanity, and genocide. Although the term "genocide" was not formally
codi昀椀ed in the Nuremberg Charter, the trials laid the foundation for
future e昀昀orts to address mass atrocities.

1.2.2. The Convention on the Prevention and Punishment of the

Crime of Genocide
Also known as the genocide convention, it came into being through the
General Assembly resolution 260 A (III) of 9 December 1948. It
thereafter entered into force on 12 January 1951, in accordance with
article XIII. This convention was particularly important as it was the 昀椀rst
attempt to de昀椀ne genocide. It de昀椀ned genocide as "acts committed with
the intent to destroy, in whole or in part, a national, ethnical, racial, or
religious group."5 It further obligated signatory states to prevent and
punish genocide.6

1.2.3. International Criminal Tribunal for former Yugoslavia

The con昀氀icts in the former Yugoslavia led to widespread atrocities,
including genocide in places like Srebrenica.7 The International Criminal
Tribunal for the Former Yugoslavia (ICTY) was established to prosecute
individuals responsible for war crimes and genocide.8 This led to the
eventual conviction of Ratko Mladic,9 who was the former Commander of
the Main Sta昀昀 of the Bosnian Serb Army. This was responsible for the
mass murders and forced displacement of people of Muslim descent in
Srebrenica and other areas.

1.2.4. International Criminal Tribunal for Rwanda

The Rwandan Genocide, where hundreds of thousands of people were
killed in a matter of months, underscored the urgent need for
international action against genocide. The United Nations Security
Council established the International Criminal Tribunal for Rwanda
(ICTR) to prosecute those responsible for the atrocities, including
genocide.60 The tribunal had many 昀椀rsts with regard to the crime of
genocide. For instance, in the case of Prosecutor v. Jean Kambanda,61 it
had the 昀椀rst plea of guilt on the crime of genocide. It also witnessed the
昀椀rst conviction.62

60
Statute for the International Tribunal for Rwanda, 8 November 1994, UN Res. 995/1994, Article 2.
61
v. Jean Kambanda, ICTR 97-23-S (1998).
62
v. Jean Paul Akayesu , TCI (Judgement) ICTR-96-4-T (1998).

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5
Convention on the Prevention and Punishment of the Crime of
Genocide, Article 2.
6
Convention on the Prevention and Punishment of the Crime of
Genocide, 9, Article 5 and Article 6.
7
It is claimed that Bosnian Serbs who perpetrated the massacre were
upset by the crimes Bosnian Muslim forces committed against Serbs in
the villages around Srebrenica, and acted in the heat of passion, as if
that would justify killing thousands of Bosnian Muslim prisoners, -<
https://youtu.be/Sq77TySTst0?si=Z3d8BUU3tqZT9j1g >- on 30
September 2023.
8
Updated Statute of the International Criminal Tribunal for the former
Yugoslavia, 25 May 1993, UN Res.
1877/2009, Article 4.
9
Prosecutor v. Ratko Mladic, TC I MICT-13-56 (Judgment) (2017).
1.2.5. The International Criminal Court
The International Criminal Court was established to prosecute
individuals for the most serious crimes of international concern,
including genocide.63 It became operational in 2002 and has since dealt
with cases related to genocide, such as the Darfur con昀氀ict in Sudan.

2. Can A Single Act Amount To Genocide?

The outcome of the holocaust in Germany was the coining of the
Convention on the prevention and punishment of the crime of genocide
(genocide Convention).The convention enlists genocide as a crime under
International law.64

The convention further stipulates 昀椀ve acts that amount to genocide.

65
These acts must be piloted with the intent to destroy wholly or partly
members of a certain nationality, ethnicity, race or religious group.16
These acts include:

i. Killing members of the afore-mentioned groups.

ii. Causing serious bodily or mental harm to the members of the
group.
iii. Deliberately in昀氀icting on the group conditions of life
calculated to bring about its destruction.

63
The Rome Statute establishing the International Criminal Court, Article 6.
64
Convention on the Prevention and Punishment of the Crime of Genocide, Article 1.
65
Convention on the Prevention and Punishment of the Crime of Genocide, Article
2. 16 Convention on the prevention and punishment of genocide, Article II 17 The
Prosecutor v Jean Mpambara, Case No ICTR 01-65-T(2006).

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iv. Imposing measures intended to prevent births within the

groups.
v. Forcibly transferring children of the group to another group.

It is important to note that these acts are not complementary. As such,

the commission of any of these acts amounts to genocide. This is as
decided by the ICTR trial chamber in Prosecutor v Jean Mpambara.17 In
this case the Tribunal held that even a single instance of one the
prohibited acts can amount to genocide provided that the accused
genuinely intends to destroy a substantial part of the group by that act.
66
Additionally, in Prosecutor v Radislav Krstic,67 the prosecution has
accused Radislav Krstic for having planned and took part in the killing of
about 8000 Bosnian Muslims. The ICTY Trial Chamber held that the
killing of the Bosnian Muslims of Military age amounted to genocide.68
Moreover, in Prosecutor v Jean Paul Akayesu,69 the ICTR Trial Chamber
held that there might be genocide even if the prohibited acts are
committed against one member of the protected groups provided that the
perpetrator believes that the victim is a member of the group the
perpetrator intends to destroy.70

3. Protected Groups in Relation To The Crime Of Genocide

International Criminal Law protects members of a national, ethnical,
racial or religious group from genocide.71 This is to mean that if the acts
discussed above and stipulated under Article 6 of the Rome Statute are
committed with the intent to destroy in whole or in part, the perpetrator
is guilty of genocide. Over the years, controversies on the protected
groups have heated up proponents suggesting that other groups be
categorized as protected. Therefore, it seems to disappoint common
sense that owing to legalistic de昀椀nitional limits, an atrocity of huge
magnitude could avoid characterization as genocide. A good example is
the atrocity by the Khmer Rouge who massacred 1.7 million Cambodians.
Such case does not qualify as genocide since the victims belonged to
political and social groups.72

66
The Prosecutor v Jean Mpambara, Case No ICTR 01-65-T(2006).
67
v Radislav Krstic, Case No ICTY IT-98-33-A(2004).
68
v Radislav Krstic, Case No ICTY IT-98-33-A(2004).
69
Prosecutor v Jean Paul Akayesu, Case No. ICTR-96-4-7 (1998).
70
Prosecutor v Jean Paul Akayesu, Case No. ICTR-96-4-7 (1998).
71
The Rome Statute establishing the International Criminal Court, Article 6.
72
Prosecutor v Radislav Krstic, Case No ICTY IT-98-33-A (2004).

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To try and lay to rest such controversy, it has been held that on reading
the travaux preparatoir of the Genocide Convention, it appears that the
crime of genocide was allegedly perceived as targeting only stable
groups constituted in a permanent fashion and membership of which is
determined by birth with exclusion of more mobile groups which one
joins through individual voluntary commitment such as political,
economic and social groups.73 Therefore the criterion to identify such
groups would be membership not normally challengeable by its
members, who belong to it automatically, by birth in a continuous and
often irremediable manner.26

3.1. National group

Based on Nottebohm decision rendered by the ICJ, a national group is a
collection of people who are perceived to share a legal bond based on
common citizenship, coupled with reciprocity of rights and duties.74
Another objective evidence of the existence of a national group is the

73
Prosecutor v Jean Paul Akayesu, Case No. ICTR-96-4-7
(1998), 511. 26 v Jean Paul Akayesu, Case No. ICTR-96-4-7
(1998), 511.
74
v Jean Paul Akayesu, Case No. ICTR-96-4-7 (1998), 512.

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o昀昀icial classi昀椀cation under national constitutions or laws.75 Bosnian

Muslims were categorized as a national group on the fact that the
Yugoslavia Constitution of 1963 had categorized Bosnian Muslims as a
‘nation.’76 In addition the categorization goes to the extent of recognizing
minorities of a nation who in another state forms the majority group.77 A
national group could also mean a set of individuals with distinctive
identity in terms of nationality or national group.78
3.2. Ethnic group
An ethnic group is a group whose members share a common language or
culture.79 Other objective evidence proving the existence of such a group
are o昀昀icial identi昀椀cation by identity cards and evidence of sedentary or
nomadic character of the group.80 In Prosecutor v George Rutaganda,81
the chamber concurred with the Akayesu judgment that even though the
Tutsi population did not have a distinctive culture and language from the
rest of the Rwandan population, the Rwandan Constitution and the laws
in force in 1994 had identi昀椀ed Rwandans by reference to their ethnic
group.82 Also, a group can distinguish itself and identify itself as an ethnic
group or have other groups including the perpetrators of crimes identify
them as such.83
3.3. Religious group
A set of individuals are regarded as a religious group if they share the
same religion, denomination or mode of worship.84

3.4. Racial group

The conventional de昀椀nition of a racial group is based on the hereditary
physical traits often identi昀椀ed with a geographical region, irrespective of
linguistic, cultural, national or religious factors.85 This has also been
reiterated in Prosecutor v Rutaganda39 speci昀椀cally stating that members
75
Case Matrix Network, ‘Art. 6, Genocide- Common Elements’,
-<https://www.casematrixnetwork.org/cmn-knowledge-hub/proof-digest/art-6/common-elements/ >- on 28
Septembver 2023.
76
Prosecutor v Radislav Krstic, Case No ICTY IT-98-33-A (2004), 559.
77
Prosecutor v Radislav Krstic, Case No ICTY IT-98-33-A (2004), 559.
78
Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General, UN
Doc.
S/2005/60, 25 January 2005, 494.
79
Prosecutor v Jean Paul Akayesu, Case No. ICTR-96-4-7, Para 513.
80
Case Matrix Network, ‘Art. 6, Genocide- Common Elements’,
-<https://www.casematrixnetwork.org/cmn-knowledge-hub/proof-digest/art-6/common-elements/ >- on 28
Septembver 2023.
81
Prosecutor v. George Rutaganda, Case No. ICTR-97-20-T, Judgement (TC), (1999), 374.
82
Prosecutor v Jean Paul Akayesu, Case No. ICTR-96-4-7 (1998), 170.
83
Prosecutor v. Clément Kayishema and Obed Ruzindana, Case No. ICTR-95-1-T, Judgement (TC), (1999), 98.
84
Prosecutor v Jean Paul Akayesu, Case No. ICTR-96-4-7 (1998) 515.
85
Jean-Paul Akayesu, Case No. ICTR-96-4-T, Judgement (TC), (1998), 514. 39
George Rutaganda, Case No. ICTR-97-20-T, Judgement (TC), (1999),
98.

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of a racial group share hereditary physical traits often identi昀椀ed by

geographical region.
4. Mental and Material Elements of Genocide
4.1. Mental Elements (mens rea)
The mens rea element requires an actor’s knowledge of an overarching
attack, whether or not they are responsible for it. To satisfy the mens rea
element of crimes against humanity, a defendant must be aware of the
attack that makes his or her act a crime against humanity.86
A perpetrator must have knowledge of the attack and must have a clear
understanding of their actions and the attack. Jurisprudence from the
ICTY points towards the assertion that knowingly running a risk that
could potentially propagate another attack is su昀昀icient mens rea.
Moreover, the Whether a perpetrator is aware of the details pertaining to
an attack or not, knowledge of an intended attack is su昀昀icient to
establish the mental elements of genocide.87 Initiators of an attack also
attain the requisite mens rea if the intent to further their attack is
established.88
For a conviction of genocide to be made, there are two mental elements
that need to be satis昀椀ed:
(a) General intent, and (b)Special intent.

4.1.1. The General Intent Requirement

Genocide requires proof of a dolus specialis; that is, a speci昀椀c intent to
commit genocide. In the absence of a confession from an accused, the
special intent element may be relatively hard to establish.89 Though
di昀昀icult to establish, special intent may be inferred from a series of
presumptions.90

ICTR jurisprudence isolates some possible parameters to aid in

establishing the genocidal intent from particular actions: (1) the general
context of culpable acts systematically directed against that a group,
whether these acts were committed by the same o昀昀ender or by others,(2)
the scale of atrocities committed, and (3) systematic targeting of victims
on account of their membership of a particular group, while excluding
the members of other groups.
4.1.2. The Intent to Destroy

86
Prosecutor v Radislav Krstic, Case No ICTY IT-98-33-A (2004), 597.
87
Kunarac (Appeals Chamber); ICC Elements of Crime
88
International Criminal Court, ‘Elements of Crimes’, 2011, -<https://www.refworld.org/docid/4ff5dd7d2.html
>on 29 September 2023.
89
Prosecutor v. Jean Paul Akayesu , TCI (Judgement) ICTR-96-4-T (1998).
90
Prosecutor v. Jean Paul Akayesu , TCI (Judgement) ICTR-96-4-T (1998).

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The requirement of the intent to destroy, in whole or in part, a protected

group as such has to be established.91 Within the meaning of the
Genocide Convention, the term “destroy” is limited to the physical or
biological destruction of the group.92 This excludes any socio-cultural
factors that give a particular group its unique identity. In practice,
however, attacks on culturally signi昀椀cant symbols of a particular group
often occur alongside physical destruction of a group. This may be
considered as intent to physically or biologically destroy a group.
4.2. Material Elements (actus reus)
The material elements of the crime of genocide involve commission of
acts identi昀椀ed under Article 6 of the Rome Statute.93 The ICTR in its
jurisprudence noted that material elements of genocide are su昀昀iciently
constituted when there is requisite intent behind an act.94Unlike other
crimes such as the crime of aggression, responsibility for genocide can
be borne by subordinates, whether or not they are acting under orders.
Important to note is that genocide is not exclusive to external actors, as
members within a targeted group may also commit the crime.95
Acts that satisfy the material elements of genocide include: (1) Killing
members of a group, (2) Causing serious bodily or mental harm, (3)
Deliberately in昀氀icting conditions that are aimed at physically destroying
a group, (4) In昀氀icting measures to inhibit births within a group, and (5)
Forcibly transferring children of a group to another group.
4.2.1. Killing members of a group
As discussed in previous sections, the killing of members of a protected
group amounts to genocide, so long as there is special intent to destroy
in part or in whole, that particular group.
4.2.2. Causing serious bodily or mental harm
In Prosecutor v. Kayishema and Ruzindana,96 the Trial Chamber
construed “serious bodily harm” to include harm that “seriously injures
the health, causes dis昀椀gurement or causes serious injury to the external,
internal organs or senses”.97 The ICTR in Prosecutor v Akayesu,98 stated
that serious bodily and mental harm, does not necessarily mean
permanent or irredeemable harm.99 The ICTR extended this
interpretation to include mental harm to a group as a result of

91
The Rome Statute establishing the International Criminal Court, Article 6.
92
Convention on the Prevention and Punishment of the Crime of Genocide, Article 2.
93
The Rome Statute establishing the International Criminal Court, Article 6.
94
Prosecutor v. Jean Paul Akayesu , TCI (Judgement) ICTR-96-4-T (1998).
95
Orna Ben-Naftali and Yogev Tuval, ‘Punishing international crimes committed by the persecuted: The Kapo
trials in Israel (1950s-1960s)’, 4(1) Journal of International Criminal Justice (2006), 128.
96
Prosecutor v. Kayishema and Ruzindana, ICTR-95-1-T (1999), 109.
97
Prosecutor v. Kayishema and Ruzindana, ICTR-95-1-T (1999), 109.
98
Prosecutor v. Jean Paul Akayesu , TCI (Judgement) ICTR-96-4-T (1998).

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psychological triggers such as torture and starvation.54 The tribunal also

found that sexual violence such as rape could potentially amount to
genocide.100

99
Prosecutor v. Jean Paul Akayesu , TCI (Judgement) ICTR-96-4-T
(1998). 54 Jean Paul Akayesu , TCI (Judgement) ICTR-96-4-T
(1998).
100
Jean Paul Akayesu , TCI (Judgement) ICTR-96-4-T (1998).

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In Prosecutor v Krstic,101a threshold for harm was set at “a grave and

long-term disadvantage to a person’s ability to lead a normal and
constructive life”.102
4.2.3. Deliberately in昀氀icting on the group conditions of life
calculated to bring about its physical destruction in whole or in
part
In Prosecutor v. Akayesu,103 the ICTR gave the following interpretation to
this facet:

“....the expression deliberately in昀氀icting on the group conditions of

life calculated to bring about its physical destruction in whole or in
part, should be construed as the methods of destruction by which
the perpetrator does not immediately kill the members of the
group, but which, ultimately, seek their physical destruction.”104

Acts under this category include con昀椀nement under inhumane

conditions, reduced access to medical care to a target group among
others. As was noted in Prosecutor v Milomir Stakic,60 however, the
expulsion of a group or part of a group does not in itself su昀昀ice for
genocide.105The implication herein does not extinguish the possibility that
forcible deportation followed by measures aimed at achieving physical
destruction of a group amounts to genocide.
4.2.4. Imposing measures to prevent births within a group
In Prosecutor v Akayesu,106 the ICTR construed the terms to include acts
such as sexual mutilation, sterilization, forced birth control, separation of
the sexes and prohibition of marriages.107 These are acts aimed at
inhibiting births within a target group. The tribunal further held that
rape, with the intention of deliberate impregnation as a means to inhibit
procreation within a group, amounted to genocide.64

4.2.5. Forcibly transferring children of the group to another group

101
Prosecutor v Radislav Krstic, Case No ICTY IT-98-33-A (2004).
102
Prosecutor v Radislav Krstic, Case No ICTY IT-98-33-A (2004).
103
Prosecutor v. Jean Paul Akayesu , TCI (Judgement) ICTR-96-4-T (1998).
104
Prosecutor v. Jean Paul Akayesu , TCI (Judgement) ICTR-96-4-T
(1998), 503. 60 Prosecutor v Milomir Stakic, IT-97-24, (2007).
105
Prosecutor v Milomir Stakic, IT-97-24, (2007)
106
Prosecutor v. Jean Paul Akayesu, TCI (Judgement) ICTR-96-4-T (1998).
107
Prosecutor v. Jean Paul Akayesu, TCI (Judgement) ICTR-96-4-T
(1998). 64 Prosecutor Jean Paul Akayesu, TCI (Judgement)
ICTR-96-4-T (1998).

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This act involves separating a child from the group they are culturally
part of.108 This act is considered complete if at least one child has been
distanced from the group to which it belongs.
5. Special intent in the crime of genocide
The special intent or the dolus specialis element such acts must be
committed with the intention to destroy, in whole or in part, a national,
ethnical, racial or religious group, as such.109 Hence on top of the acts of
genocide, such acts must be committed with the intention to destroy a
speci昀椀c special group listed in the genocide convention.
The intent is the most di昀昀icult element to determine.110 To constitute
genocide, there must be a proven intent on the part of perpetrators to
physically destroy a national, ethnical, racial or religious group. Cultural
destruction does not su昀昀ice, nor does an intention to simply disperse a
group.111 It is this special intent, or dolus specialis, that makes the crime
of genocide so unique. Importantly, the victims of genocide are
deliberately targeted - not randomly – because of their real or perceived
membership of one of the four groups protected under the Convention
(which excludes political groups, for example).112 This means that the
target of destruction must be the group, as such, and not its members as
individuals. Genocide can also be committed against only a part of the
group, as long as that part is identi昀椀able (including within a
geographically limited area) and “substantial.”113
This intention is required prior to the commission of the o昀昀ense. The
courts have opined that intent is to be formulated prior to the
commission of the crime. In the case of Kayishema and Ruzindana,114 the
court stated that the mens rea must be formed prior to the commission of
the genocidal acts. The individual acts themselves, however, do not
require premeditation; the only consideration is that the act should be
done in furtherance of the genocidal intent. It further stated, “It is this
108
The Rome Statute establishing the International Criminal Court, Article 6(e).
109
Convention on the Prevention and Punishment of the Crime of Genocide, Art.2; Statute for the International
Tribunal for Rwanda, Article 2(2); Prosecutor v. Jean Paul Akayesu , TCI (Judgement) ICTR-96-4-T (1998),
498, 517-522.
110
United Nations Office on Genocide Prevention and the Responsibility to Protect, ‘Genocide’<
https://www.un.org/en/genocideprevention/genocide.shtml#:~:text=To%20constitute%20genocide%2C
%20there %20must,to%20simply%20disperse%20a%20group.> on 1st October 2023.
111
United Nations Office on Genocide Prevention and the Responsibility to Protect, ‘Genocide’<
https://www.un.org/en/genocideprevention/genocide.shtml#:~:text=To%20constitute%20genocide%2C
%20there %20must,to%20simply%20disperse%20a%20group.> on 1st October 2023.
112
United Nations Office on Genocide Prevention and the Responsibility to Protect, ‘Genocide’<
https://www.un.org/en/genocideprevention/genocide.shtml#:~:text=To%20constitute%20genocide%2C
%20there %20must,to%20simply%20disperse%20a%20group.> on 1st October 2023.
113
Prosecutor v. Kayishema and Ruzindana, ICTR-95-1-T (1991), 96-97; Prosecutor v. Jean Paul Akayesu, TCI
(Judgement) ICTR-96-4-T (1998), 497; Prosecutor v Ignance Bagilishema, (Trial Judgment),ICTR-95-1A-T
(2001), 64.
114
Kayishema and Ruzindana, ICTR-95-1-T (1999), 91.

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speci昀椀c intent that distinguishes the crime of genocide from the ordinary
crime of murder. The Trial Chamber opines that for the crimes of
genocide to occur, the mens rea must be formed prior to the commission
of the genocidal acts.”115
However, such intent can be inferred. In the case of Prosecutor v.
Semanza,116 the court stated that a perpetrator’s intention may be
inferred from his actions.
For factors to be used to determine the mental element of genocide, even
though the courts have opined that it is usually di昀昀icult to determine
intention, in Akayesu, it came up with guidelines. It stated, “intent may
be inferred from the following factors:
1. “the general context of the perpetration of other culpable acts
systematically directed against that same group, whether . . .
committed by the same o昀昀ender or by others;”
2. “the scale of atrocities committed;”
3. the “general nature” of the atrocities committed “in a region or a
country;”
4. “the fact of deliberately and systematically targeting victims on
account of their membership of a particular group, while excluding
the members of other groups;”
5. “the general political doctrine which gave rise to the acts;”
6. “the repetition of destructive and discriminatory acts;” or
7. “the perpetration of acts which violate, or which the perpetrators
themselves consider to violate the very foundation of the group—
acts which are not in themselves covered by the list . . . but which
are committed as part of the same pattern of conduct.” 117Moreover,
some cases have suggested the involvement of the state as
constituting intent. In the case of Bagilishema, the Chamber agreed
“with the statement of the International Law Commission, that ‘the
intention must be to destroy the group as such, meaning as a
separate and distinct entity, and not merely some individuals
115
Kayishema and Ruzindana, ICTR-95-1-T (1999), 91.
116
Prosecutor v. Semanza, ICTR-97-20 (Trial Chamber)(2003), 313.
117
Prosecutor v. Jean Paul Akayesu, TCI (Judgement) ICTR-96-4-T (1998), 523-524.

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because of their membership in a particular group.’ Although the

destruction sought need not be directed at every member of the
targeted group, the Chamber considers that the intention to
destroy must target at least a substantial part of the group.”118

5.1. Distinction from general intent

Primarily there are usually two elements that must be met for an accused
to be found guilty of a crime, they are, the actus reus (physical aspect of
the crime) and the mens rea (intention aspect). Within the Rome statute,
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.119 Such a person is said to
have the intent of committing the crimes within the Rome statute if; in
relation to conduct, that person means to engage in the conduct and in

118
Prosecutor v Ignance Bagilishema, (Trial Judgment),ICTR-95-1A-T (2001), 64.
119
The Rome Statute establishing the International Criminal Court, Article 30(1).

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relation to conduct, that person means to engage in the conduct.120

Hence any conduct, so long as the person meant to engage in such
conduct, then the intentional element is met.
However, the distinction from the special intent comes where all
these acts amounting to genocide must be committed with the
singular intention of destruction of the speci昀椀c group, in whole or in
part. Meaning, if such acts as killing members of the group were
not committed with such intent, then it cannot be classi昀椀ed as
genocide even where there was a massacre.

6. Criminal Accountability for Direct Speech and Public

Incitement to Commit Genocide
Under international law, the scope of freedom of speech not only
entails ino昀昀ensive expressions but also applies to those expressions
that o昀昀end, shock or disturb the State or any sector of the
population.121 However, no universally accepted de昀椀nition of hate
speech exists. The Council of Europe provided a comprehensive
de昀椀nition of hate speech as prohibition to “spread, incite, promote
or justify racial hatred or other forms of hatred based on
intolerance, including: intolerance expressed by aggressive
nationalism and ethnocentrism, discrimination and hostility against
minorities and people of immigrant origin.122
Due to its harmful e昀昀ect on human dignity, society and the creation
of a poisoned atmosphere, hate speech is prohibited under human
rights law.123 When hate speech calls for imminent violence, it is
particularly harmful. Incitement to genocide includes speech that
intends to directly incite its audience to destroy a national, ethnical,
racial or religious group.124 Although incitement to genocide does
not require a result, a speaker must have a certain authority over
her audience to convey the message, and the audience must be
likely to respond to the speaker’s words.125
In international criminal law, responsibility for propaganda and
violent speech was established in 1945 at the International Military
Tribunal at Nuremberg in the Streicher case.126 Julius Streicher was
120
The Rome Statute establishing the International Criminal Court, Article 30 (2).
121
Handyside v. The United Kingdom, 5493/72, Council of Europe: European Court of Human Rights,
(1976).
122
Comm. Of Ministers; Council of Europe Recommendation on Hate Speech (1997).
123
Onder Bakircioglu, ‘Freedom of speech and hate speech’, 16(1) Tusla Journal of Comparative and
International Law (2008), 1.
124
The Rome Statute establishing the International Criminal Court, Article 30, Article 5.
125
Susan Benesch, ‘Inciting genocide, pleading free speech’, 24(2) World Policy Journal, Duke
University Press (2004), 62.
126
International Military Tribunal at Nuremberg; Judgement and Sentences.

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convicted of persecution on political and racial grounds in

connection to war crimes, punishable as a crime against humanity
under the International Military Tribunal Charter.
In the aftermath of Nuremberg, in 1948, the United Nations
General Assembly adopted the Convention on the Prevention and
Punishment of the Crime of Genocide which declared direct and
public incitement to commit genocide (ICG) an international
crime.127
Given the brevity of judicial commentary in the Streicher case, the
International Criminal Tribunal at Rwanda, established in 1994, had
little jurisprudence to guide its reasoning on the role of propaganda
in the Rwandan genocide. What little direction existed on how to
interpret Article 3 of the UN Genocide Convention lay in the Report
of International Law Commission’s forty-eighth session in 1996
during which the Commission drafted a non-binding “Code of
Crimes Against the Peace and Security of Mankind.”128 Rupturing
with domestic criminal codes as well as the precedent set at
Nuremberg, the Commission stipulated that direct and public
incitement is limited to situations in which the other individual
actually commits that crime.129According to the 1996 Code, criminal
responsibility only applies when an individual directly and publicly
incites another individual to commit such a crime which in fact
occurs.
Incitement is codi昀椀ed in the statutes of the international tribunals
as well as in the Genocide
Convention, as “direct and public incitement to genocide.”130

6.1. Analysis of Akayesu Case

The Rwandan Tribunal 昀椀rst conviction of incitement to genocide
was in response to an immediate incitement in 1998. In Prosecutor
v Akayesu,131 the Trial Chamber convicted Jean-Paul Akayesu of
direct and public incitement under Article 2(3) of the ICTR
Statute.132 The Trial Chamber in its legal 昀椀ndings, formally
con昀椀rmed that ICG is an inchoate crime that can be completed
regardless of the results achieved. In its factual 昀椀ndings, however,
the Trial Chamber asserted conspicuously the causal e昀昀ects of one
127
Convention on the Prevention and Punishment of the Crime of Genocide, Article 3.
128
Report of the International Law Commission; Draft Code of Crimes Against the Peace and Security
of Mankind.
129
Rep. of the Int’l Law Commission; Draft Code of Crimes against the Peace and Security of
Mankind.
130
Benesch, ‘Inciting genocide, pleading free speech’, 62.
131
Prosecutor v. Jean Paul Akayesu, TCI (Judgement) ICTR-96-4-T (1998).
132
Prosecutor v. Jean Paul Akayesu, TCI (Judgement) ICTR-96-4-T (1998).

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of Akayesu’s inciting successful and did lead to the destruction of a

great number of Tutsi.133 The court introduced causation as a way of
shoring up the directness aspect of the conviction of the accused of
direct and public incitement. Given the euphemistic and coded
speech of the defendant, the prosecution was not able to present
evidence against the defendant as direct and clear as Streicher’s
exhortations.134
In order to conclude that Akayesu directly incited his followers to
commit genocide, the court was compelled to adopt an expansive
view that encompassed implicit and explicit calls to exterminate a
protected group.
The treatment of causation went beyond merely ful昀椀lling the
directness requirement of ICG.
The judgment elevated causation to a legal requirement to prove
incitement.135

6.2. The Nahimana Trial

Subsequent ICG trials at the International Criminal Court at
Rwanda referred to and ampli昀椀ed the causal element introduced in
Akayesu, even as they reiterated the inchoate nature of the crime.

The judgment that gave greatest prominence to the causal e昀昀ect of

speech acts was the Prosecutor v Ferdinand Nahimana, Jean-Bosco
Barayagwisa, Hassan Ngeze, also known as the “Media Trial.”136 The
three defendants in the Trial owned major Rwandan media outlets.
Ferdinand Nahimana and Jean-Bosco were both government
ministers and founders of the main independent radio station, Radio
Television Libre des Milles Collines (RTLM). Hassan Ngeze was the
owner and editor of Kangura, a newspaper widely distributed in
Rwanda before the genocide.137 The three were convicted of direct
commission of genocide as a result of their leadership positions at
the media outlets.

Chamber defended this conviction on the grounds that editors and

publishers have generally been held liable for the media they
control.138 The defendants were also convicted of ICG, in a verdict
that asserted a clear causal connection between speeches and radio
broadcasts and subsequent public violence. However, the Appeals
Chamber reversed a number of the Trial Chamber’s 昀椀ndings and
133
Prosecutor v. Jean Paul Akayesu, TCI (Judgement) ICTR-96-4-T (1998).
134
Trial of the Major War Criminals Before the International Military Tribunal; Nuremberg (1947)
135
Prosecutor v. Jean Paul Akayesu, TCI (Judgement) ICTR-96-4-T (1998).
136
Prosecutor v Nahimana et al., Case No. ICTR-99-52-T; Judgement (2003).
137
Prosecutor v Nahimana et al., Case No. ICTR-99-52-T; Judgement (2003).
138
Prosecutor v Nahimana et al., Case No. ICTR-99-52-T; Judgement (2003).

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acquitted the three defendants of genocide convictions.139 The

Appeals Chamber introduced a new criterion of temporality, in
which genocidal speech acts had to be uttered very or
simultaneously with the onset of an actual genocide. Thus, the
Chamber upheld the incitement convictions against the defendants
for broadcasts and publications made before the start of the
genocide.

On the causal connection between speech acts and subsequent

violence and in trying to resolve the inconsistencies in the
formulation of ICG at the International Criminal Tribunal for
Rwanda (ICTR), it is di昀昀icult to prove such a nexus, since the e昀昀ect
of speech on large groups of people is hard to measure and is only
one of the constellation of forces that a昀昀ect why people act as they
do.140

In place of unfounded claims about the consequences of speeches

and broadcasts, advances a framework for assessing the likelihood
that a speech act could have resulted in genocide, based upon the
context of the speech act and the foreseeability that the speech
would have genocidal consequences. The matrix of evaluating the
gravity of a speech act is comprised of 昀椀ve indicators:141

1. The degree of authority and in昀氀uence of the speaker

2. The disposition of the intended audience and its capacity to
commit violent acts
3. The content of the speech acts and the degree to which
they were repetitive, dehumanized the victims and were
understood as a call to violence
4. The socio-historical context and history of inter-group
relations
5. The form of transmission of the speech and degree of
persuasiveness of the form

These criteria were not meant to replace the existing law of ICG.
Rather, they are formulated principally to assist prosecutors at
international tribunals and to guide international agencies and
governments and as they decide whether to intervene or prevent
genocide.99
139
Nahimana et al. v Prosecutor, Case No. ICTR-99-52-A, Judgement on Appeal (2007).
140
Benesch; Propaganda, War Crimes Trials and International Law.
141
Benesch; Propaganda, War Crimes Trials and
International Law. 99 Benesch; Propaganda, War
CrimesTrials and International Law.

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GROUP 4
INTRODUCTION
Crimes against humanity are provided for under part 2 article 7 of
the Rome statute. They are any of these acts that when committed
as part of a widespread or systematic attack directed against any
civilian population with knowledge of the attack. These acts may
include; murder, extermination, enslavement, forcible transfer of
population, imprisonment or other severe deprivation of physical
liberty in violation of fundamental rules of international law,
persecution against any identi昀椀able group e.g political, racial,
national, ethnic, cultural, religious, torture, rape, sexual slavery,
forced pregnancy, enforced sterilization, or any other form of sexual
violence of compatible gravity142.

WHO IS A PERPETRATOR IN CRIMES AGAINST HUMANITY?

A perpetrator can be de昀椀ned as someone who carries out a harmful,
illegal or immoral act.143 In crimes against humanity a perpetrator
is anyone who commits a crime within the de昀椀nition of Article 7 of
the Rome Statute. The perpetrator has to commit their acts as part
of a widespread or systemic attack against a civilian population and
with knowledge of the attack.
STATUS OF PERPETRATORS FOR CRIMES AGAINST HUMANITY
In most instances, crimes against humanity have been perpetrated
by state o昀昀icials. However, Crimes against humanity can be carried
out by either government o昀昀icials or a private group or organisation
that may orchestrate policies amounting to crimes against
humanity. Even though it is not necessary for a perpetrator to be a
state o昀昀icial, their action must at least be connected with a policy
or plan by a government or any other organisation or group in order
for there to be a crime against humanity.144
Persons who commit atrocities under Article 7 on their own accord
in the absence of state policies can be termed as perpetrators for
crimes against humanity, if the state authorities do not stop them
and prevent their actions for whatever reason or if the state
approves their actions.
Individuals who commit inhumane acts while acting on their own
initiative, pursuant to their own criminal plan, in the absence of
encouragement or direction from either the government or a group

142
Rome statute ar琀椀cle 7
143
see Oxford dic琀椀onary.
144
Than and Shorts, Interna琀椀onal Criminal Law and Human Rights, 2003.

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or an organisation does not commit a crime against humanity and

are arraigned in national criminal courts. 145
VICTIMS IN CRIMES AGAINST HUMANITY
The Rome statute under Article 7 de昀椀nes crimes of humanity as acts
when committed as part of a wide spread or systematic attacks
directed against any civilian population, with knowledge of the
attack.
“Directed against” requires that the civilian population must be the
primary target of attack not just an incidental attack. Thus the
primary object of attack is “any civilian population”.
“Any” highlights the fact that crimes against humanity can be
committed both against enemy nationals and crimes by states own
subjects.
“Civilian” refers to a non- combatant.
“Population” refers to a larger body of victims and crimes of a
collective nature. It is not required that an entire population of an
area be targeted. It is enough to show that a certain number of
individuals are targeted in the course of the attack or that
individuals were targeted in such a way that demonstrates that the
attack was in fact directed against a civilian “population” rather
than against a small and randomly selected number of individuals.
Kunarac et Al.
ACTUS REA
Actus reus in the context of crimes against humanity refers to the
physical or material elements of the crime. In other words, it
encompasses the speci昀椀c actions or conduct that constitute the
criminal o昀昀ense. Crimes against humanity are serious and
widespread violations of human rights that are committed as part of
a systematic attack against a civilian population. 146 It highlights the
importance of individual criminal responsibility and the need to
establish a direct or indirect link between the accused and the
crimes committed in order to hold them accountable for these grave
o昀昀enses.

An example in case law is the case of Prosecutor V Tadic before the

International Criminal Tribunal for the former Yugoslavia (ICTY).147
This case involved multiple charges, including crimes against
humanity, committed during the Balkans con昀氀ict in the early 1990s.
The case used a three part criteria to establish actus rea:

1. Widespread or systematic attack: To establish the actus reus for

crimes against humanity, the prosecution needed to demonstrate
that there was a widespread or systematic attack against a civilian
145
Prosecutor v Kayishema, para 125.
146
Rome Statute, 1 July 2002, Ar琀椀cle 7.
147
Prosecutor v. Tadić, Case No.: IT-94-1-A,15 July 1999.

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population. This involved presenting evidence of numerous

incidents or a pattern of violence targeting civilians.

2. Speci昀椀c acts: The prosecution had to prove that speci昀椀c acts had
been committed as part of this attack. These acts can include
murder, extermination, enslavement, deportation, and other
inhumane acts.

3. Individual criminal responsibility: The actus reus also required

establishing the individual criminal responsibility of the accused.
This means showing that the accused personally participated in or
contributed to the commission of the crimes against humanity,
either through direct involvement or indirect means such as
ordering, aiding, or abetting.

In the Tadic case, the tribunal found that the accused, Dusko Tadic,
had committed acts that constituted crimes against humanity. The
prosecution presented evidence of widespread and systematic
attacks against civilians, including murders, torture, and other
inhumane acts. Tadic was found guilty of several counts of crimes
against humanity, among other charges.
Mens rea for crimes against humanity
The mens rea for crimes against humanity is set out in the statutes
of international criminal tribunals, such as the International
Criminal Court (ICC) and the International Criminal Tribunal for the
Former Yugoslavia (ICTY).
ICC Statute: Article 7(2) of the ICC Statute de昀椀nes crimes against
humanity as “certain acts when committed as part of a widespread
or systematic attack directed against any civilian population, with
knowledge of the attack.”
ICTY Statute: Article 5(2) of the ICTY Statute de昀椀nes crimes against
humanity as “acts prohibited under this Article if committed as part
of a widespread or systematic attack directed against any civilian
population with knowledge of the attack.”
Relevant Case Law
The mens rea for crimes against humanity has been interpreted by
the ICC and the ICTY in a number of cases. In particular, the
following cases provide important guidance on the required mental
state for crimes against humanity:
Kunarac Appeal Judgment: In this case, the ICTY Appeals Chamber
held that the mens rea for crimes against humanity is twofold: (1)
the intent to commit the underlying o昀昀ence; and (2) knowledge that

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the o昀昀ence is part of a widespread or systematic attack directed

against a civilian population. The Appeals Chamber also held that
the accused does not need to know the speci昀椀c details of the attack,
but must have knowledge of the broader context.
Kayishema Trial Judgment: In this case, the ICTR Trial Chamber
held that the mens rea for crimes against humanity is the same as
for other crimes under international law, namely the intent to
commit the act or the knowledge that the act is virtually certain to
occur. The Trial Chamber also held that the accused does not need
to share the purpose or goal of the attack, but must know that his or
her acts are part of it.
Expounding on Mens Rea in Crimes Against Humanity
The mens rea for crimes against humanity is a complex issue, and
there is no single de昀椀nition that is universally accepted. However,
the following key points can be made:
The mens rea for crimes against humanity is higher than the mens
rea for ordinary crimes. This is because crimes against humanity
are particularly serious o昀昀ences that involve widespread or
systematic attacks on civilian populations.
The mens rea for crimes against humanity is subjective, meaning
that the accused must have the required mental state at the time of
the o昀昀ence.
The mens rea for crimes against humanity is twofold: (1) the intent
to commit the underlying o昀昀ence; and (2) knowledge that the
o昀昀ence is part of a widespread or systematic attack directed against
a civilian population.
The accused does not need to know the speci昀椀c details of the
attack, but must have knowledge of the broader context.
The accused does not need to share the purpose or goal of the
attack, but must know that his or her acts are part of it.
It is important to note that the mens rea for crimes against
humanity can be inferred from the accused’s conduct and the
surrounding circumstances. For example, if an accused participates
in a widespread and systematic attack on a civilian population, it
can be inferred that he or she had the required mental state, even if
there is no direct evidence of their intent or knowledge.
Conclusion
The mens rea for crimes against humanity is a complex issue, but it
is essential to understanding the nature of these o昀昀ences. The mens

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rea requirement ensures that only those who are truly culpable are
held accountable for crimes against humanity.

DIFFERENCE BETWEEN GENOCIDE AND CRIMES AGAINST

HUMANITY
Crimes against humanity and genocide are two distinct concepts
which became part of International Law in the mid-1940s, after the
end of World War II, and around the time of the Nuremberg trials.148
On December 9, 1948, the United Nations rati昀椀ed the convention on
the Prevention and Punishment of the Crime of Genocide. This
crime, de昀椀ned by Raphael Lemkin as the deliberate intent to
exterminate, in whole or in part, a nation, ethnic, racial or religious
group, had not been previously described and codi昀椀ed. Crime
against humanity is a charge similar to genocide in its enumeration
of the acts of terror that are carried out. It was 昀椀rst o昀昀icially used
in condemning the Armenian Genocide and was 昀椀rst adopted in law
as a response to the Holocaust.149
The di昀昀erences are mainly textual. Previously, genocide and crimes
against humanity could not be di昀昀erentiated, as genocide was
classi昀椀ed under crimes against humanity, in that it was a crime
against humanity with intent to destroy, in whole or in part, a
national, ethnical, racial or religious group but overtime the
de昀椀nitions have changed pursuant to article 6 and 7 of the Rome
Statute that gives di昀昀erent de昀椀nitions of genocide and crimes
against humanity respectively posing di昀昀erent requirements.150
Genocide has been codi昀椀ed in a series of conventions with accepted
de昀椀nitions such as the Convention on the Prevention and
Punishment on the crime of genocide151 while crimes against
humanity appear to have inconsistent de昀椀nitions as it overlaps with
genocide and war crimes. Because of the inconsistent de昀椀nitions of
crimes against humanity, some worst crimes may not be brought in
as genocide but only crimes against humanity, for example the
atrocities committed in Sudan and Defur on the purposeful killings
and relegation of villagers to a way to destroy the has been termed
as crime against humanity and not genocide.152

148
h琀琀ps://www.theatlan琀椀c.com/interna琀椀onal/archive/2013/03/whats-the-di昀昀erence-between-
crimes-against
149
h琀琀ps://worldwithoutgenocide.org/genocides-and-con昀氀icts/background-and-overview-informa琀椀on/
icc/genocide
150
Robert Cryer, ‘An Introduc琀椀on to Interna琀椀onal Criminal Law
151
United Na琀椀ons O昀케ce on genocide preven琀椀on and the responsibility to protect
152
Genocide and Crimes Against Humanity’ Patricia M. Wald; Interna琀椀onal Criminal Tribunal for the
former Yugoslavia vol.6, 2007

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For crimes against humanity, it requires that the acts being

prosecuted be part of a systematic or widespread attacks against a
civilian. In the Akayesu case, ‘systematic’ was de昀椀ned as thoroughly
organized, following a regular pattern, on the basis of a common
policy and involving substantial public and private resources 153
while for genocide, it requires that the acts being committed are
against a racial, religious, national or ethnic group and be done
with speci昀椀c intent of destroying the group in whole or in part and
the acts committed in a manifest pattern of similar conduct directed
against the group or a conduct that can e昀昀ect such a destruction.154
For crimes against humanity, it is not necessary to prove that there
is an overall special intent or a discriminatory animus, simple intent
to commit any of the acts listed, with the exception of the act of
persecution, which requires additional discriminatory intent is
enough while genocide needs a prove of special intent for it to
su昀昀ice.155
Crimes against humanity no longer requires any nexus with armed
con昀氀icts as majority of the instruments and precedence oppose
such requirement, it only encompasses discriminatory acts against
a much wider range of groups while genocide can only encompass
the act of armed con昀氀ict.156
The required elements for crime against humanity include an
objectively existing situation of scale and gravity in which civilians
are at risk. In contrast, the gravity of genocide is primarily marked
by the subjective mens rea, the intent to destroy a national, ethnic,
racial or religious group as such.157
The interests protected by the law against genocide are narrower
than for crimes against humanity. The law against genocide
protects the rights the rights of certain groups to survival, and thus
human diversity while the crime against humanity protects groups
from discrimination rather than elimination. Thus, when
persecution escalates to the extreme form of willful and deliberate
acts designed to destroy a group or part of a group, it can be held
that such persecution amounts to genocide.158
WAR CRIMES

Introduction

The Rome Statute of the International Criminal Court de昀椀nes war

crimes as grave breaches against the Geneva Conventions of 12th

153
Akayesu ICTR T. Ch 1998
154
Genocide and Crimes Against Humanity’ Patricia M. Wald; Interna琀椀onal Criminal Tribunal for the
former Yugoslavia vol.6, 2007
155
Ibid
156
Robert Cryer, ‘An Introduc琀椀on to Interna琀椀onal Criminal Law’
157
Ibid
158
Ibid

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August 1949 and any of the acts against persons or property

protected under the provisions of the relevant Geneva Convention.
Some of them are; ‘Wilful killing, torture or inhuman treatment,
including biological experiments, willfully causing great su昀昀ering or
serious injury to body or health, taking of hostages and many
more.’159 War crimes arise when there is an armed con昀氀ict. The
Geneva Conventions of 1949 together with the additional protocols
state there are twp types of armed con昀氀ict; International armed
con昀氀ict and non-international armed con昀氀ict. International armed
con昀氀ict are ‘all cases of declared war or of any other armed con昀氀ict
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,’160
whereas noninternational armed con昀氀icts are ‘between government
forces and non-government armed groups such as traditional civil
wars.’161 Article 8(2) of the Rome Statute also de昀椀nes war crimes
under both international and non-international war crimes. In an
armed con昀氀ict there are rules that should be followed such as the
protection of certain people and objects, military targets and
weapons that are to be used in such instances. All of these are set
out in the Geneva Conventions of 1949, the additional protocols and
also the Hague Conventions of 1899 and 1907. A violation of the
provisions set out in these conventions amounts to a war crime.
International Humanitarian Law set outs the responsibilities of
states, government forces of non-government armed groups during
an armed con昀氀ict. It does this by laying out a few principles that are
also articulated in the Geneva Conventions of 1949 and the
additional protocols. They are:

i. The principle of necessity

ii. The principle of

proportionality

iii. Prohibition of in昀氀icting

unnecessary su昀昀ering

iv. Principle of distinction

159
Rome Statute of the International Criminal Court, 17 July 1988, Article 8 (2)

160
The Geneva Conventions, 12 August 1949, Common Article 2

161
The Geneva Conventions, 12 August 1949, Common Article 3

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v. Prohibition of attacking
persons hors de combat

These principles seek to limit the e昀昀ects of armed con昀氀icts and

breach of these principles amounts to a war crime.

Principle of necessity
The principle of military necessity allows only that degree and kind
of force required to achieve a legitimate purpose in a con昀氀ict.162
Therefore, in an armed con昀氀ict the sole military purpose is to
weaken the military capacity of the other party thus protect
civilians and civilian objects. Unless these civilians or civilian
objects pose a danger or are identi昀椀ed as military objects, they are
not to be attacked during an armed con昀氀ict. Such an attack will
amount to a war crime. Artcle 52 to 56 of Additional Protocol 1
outlines civilian objects and the general protection of these objects.
Article 52(2) states that attacks shall be limited strictly to military
objectives which are those objects by which by nature, location,
purpose or use make an e昀昀ective contribution to military action and
whose total or partial destruction, capture o昀昀ers a de昀椀nite military
advantage.163

In the case of The Prosecutor v Prlic et al , the International

Criminal Tribunal of the former Yugoslavia sentenced six accused
persons for crimes committed in an armed con昀氀ict between the
Muslim armed forces of Bosnia and Herzegovina and the accused,
the military body of Herceg-Bosna. The Chamber held that it was a
crime for the military body of Herceg-Bosna to destroy the
Symblolic Old Brige of Mostar.164 It held that this was a violation of
Article 52(2) of the Additional Protocol 1 which listed the objects
that can be lawfully targeted in an armed con昀氀ict165 and speci昀椀cally,
it was a violation of Article 53 of the Additional Protocol 1 which
outlines the protection of cultural objects and places of worship. It
prohibits any acts of hostility directed against the historic

162
Interna琀椀onal Commi琀琀ee of the Red Cross, ‘What is IHL?’ 18 September 2015 <
https://www.icrc.org/en/document/what-ihl > accessed on 17 October 2023
163
Protocol Additional 1 to the Geneva Convention, 12 August 1949, Article 52(2)

164
ICTY, The Prosecutor v Prlic et al, IT-04-74-T, Trial Chamber, Judgement and Opinion, 29 May
2013

165
Protocol Additional 1 to the Geneva Convention, 12 August 1949, Article 52(2)

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monuments, works of art or places of worship, any use of such

objects in support of the military e昀昀orts.166

Principle of Proportionality
Article 51(5)(b) Additional Protocol 1to the Geneva Conventions of
1949 describes an indiscriminate attack as that which may be
expected to cause incidental loss of civilian life, damage to civilian
objects or injury to civilians, which would be excessive in relation to
the concrete and direct military advantage anticipated. The
principle of proportionality is also recognized by Rule 14 of the
CIHL, which also prohibits launching an attack which may be
expected to cause incidental loss of civilian life, injury to civilians or
a combination thereof, which would be excessive.
It suggests that there could be a degree of acceptance for harm to
civilians, as long as this acceptance is thoroughly evaluated
concerning the military advantages gained.167 This assessment is
crucial due to collateral damage, which encompasses the
unintended harm or destruction of individuals or objects not
intended as military targets during operation. This principle of
proportionality becomes applicable exclusively when a military
target is under attack, which is why military commanders must do
everything reasonably possible to prevent or reduce harm to
civilians.

Prohibition of in昀氀icting unnecessary su昀昀ering

This concept addresses the restriction of the means and techniques
of warfare utilized by parties engaged in armed con昀氀icts.168 It
prescribes that those involved should refrain from using weapons
and tactics that result in unnecessary harm or injury to both
combatants and, to a certain extent, even civilians.169170

In accordance with this principle, the use of weapons that would

inevitably result in severe and permanent disability, as well as those
that make death unavoidable, is prohibited.12 Examples of such
weapons include laser devices, dumdum bullets, grenades, and anti-

166
Protocol Additional 1 to the Geneva Convention, 12 August 1949, Article 53

167
Legality of the Threat or Use of Nuclear Weapons Advisory Opinion, ICJ Reports 1996, p. 226,
Separate Opinion of Judge Higgins, p. 587
168
Additional Protocol 1, Article 35(2)
169
Customary International Humanitarian Law, Rule 70
170
Hague Regulations, Article 23(e)

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personnel landmines.171 In the Tadic case in 1995, ICTY stated that

the elementary considerations of humanity make it absurd to permit
the use of banned weapons in internal con昀氀icts when governments
attempt to suppress uprisings by their own citizens within their own
borders. What is inhumane in international wars cannot be
inhumane in civil strife.172

Principle of Distinction -It is prohibited to attack civilians

including attacks which are intended to terrorise the population and
due to this combatants are advised to identify themselves from
civilians for example by carrying weapons openly and wearing
uniforms. Article 48(I) of the Additional Protocol I states that in
order to ensure respect for and protection of the civilian population
and civilian objects the parties to the con昀氀ict shall at all times
distinguish between the civilian population and combatants and
between civilian objects and military objectives and accordingly
shall direct their operations only against military objectives. Article
13(I) of Additional Protocol II to the Geneva Conventions also
stresses on the protection of civilians against dangers arising from
military operations. The civilian population comprises of all persons
who are civilians and the Geneva Convention III Articles 4 (a),(6)
and Articles 43 and 50 lays out who members of the civilian
population are not. Acts or threats of violence whose purpose is to
spread terror among the civilian population are prohibited.173 In
case there is doubt as to whether one is a civilian that person is
considered to be a civilian.174 Civilians are always protected and
they Will only lose their protection if they take a direct part in
hostilities.175

Principle of attacks against those horse de combat.

Prohibition to attack any person horse de combat (those who are

sick and wounded, prisoners of war) is a fundamental rule of IHL.
Rule 47 of Customary International Law lays out person who may

171
Protocol II to the Convention on Certain Conventional Weapons, Article 6(2); Rome Statute
establishing the International Criminal Court, Article 8(2)(b)(xx); Ottawa Convention, preamble
172
ICTY, The Prosecutor v. Dusko Tadic, Decision on the Defence Motion for Interlocutory Appeal on
Jurisdiction,
Appeals Chamber, 2 October 1995, Case No. IT-94-1-AR72, 119
173
Additional Protocol (II) to the Geneva Convention 1977 Article 13(3)
174
Additional Protocol I to the Geneva Convention 1948 Article 50(I)
175
Additional Protocol (II) to the Geneva Convention Article 13(3) see also US Naval Handbook

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fall under persons hors de combat to be anyone who is in ghe power

of the adverse party or anyone who is defenceless because of
unconsciousness, shipwreck, wounds or sickness pr anyone who
clearly expresses an intention to surrender provided that he or she
abstains from any hostile act and does not attempt to escape. While
soldiers could ne targeted lawfully under normal circumstances, it
is prohibited to target them of they surrender or are wounded and
no longer pose a threat. They may be entitled to more protection if
they meet criteria of prisoner of war. They will continue to enjoy
protection where they do not perform any hostile act against the
enemy or attempting to escape.

NEXUS OF WAR CRIMES WITH ARMED CONFLICT

The term nexus means a connection or series of connections linking
two or more things that is to mean it is a central or focal point .
According to H.G. Van de Wilt, 176In order to qualify as a war crime,
an o昀昀ence must have a nexus with an armed con昀氀ict. This
contextual element serves to distinguish war crimes from both
ordinary crimes and other international crimes such as crimes
against humanity and genocide.
Nexus of war crimes to armed con昀氀ict has been a work in progress,
over a long period of time there have been developments. Post
World War II prosecutions, in the case of United States v Karl
Brandt et al, several doctors in the Nazi Germany were indicted for
their role in human medical experiments. Under the Control Council
Law No. 10, war crimes and crimes against humanity we discussed
together the only distinction being that war crimes were committed
against members of the armed forces and civilians of countries at
war with Germany.
The experiments were not performed by military doctors and were
not only carried out on prisoners of war and way from the front
lines and did not have any direct links to how hostilities were
waged. Nonetheless, they were classi昀椀ed as war crimes.
Today this sentiment is not held by majority of the writers,
practitioners and more precisely the Rome statute separates war
crimes from crimes against humanity. Antonio Cassese believes
nexus question is always accompanied by need of proof. 177He states
that the nature of nexus requirement under international law and
the means to prove it though theoretically distinct are two closely

176
H.G.Van De Wilt, 2012, War Crimes and the Requirement of Nexus in Armed Conflict
https://www.researchgate.com.
177
Antonio Cassese, 2012, 1. The Nexus Requirement of War Crimes, 1, 25.

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intertwined matters especially in the context of criminal trials.

Prosecuting authorities in criminal matters dealing with alleged
war crimes will have to prove existence of this nexus beyond
reasonable doubt on basis of various indicia.
The rationale behind the punishment of war crimes is that all those
who, during an armed con昀氀ict, seriously contravene rules of IHL
against persons protected by such rules should be personally
accountable for such breaches. As no international rule clearly and
explicitly de昀椀nes the nexus under discussion, the contours and
content of such nexus must be inferred from the whole spirit of IHL
and international criminal law (ICL) as well as the object and
purpose of the relevant international rules.
It stands to reason that to be labelled as a war crime an
o昀昀ence must meettwo requirements. It must have been:

• Perpetrated against persons who do not take direct part in

hostilities or who no longer take part in such hostilities

• and occasioned by and linked to the armed con昀氀ict, which

created the situation and provided an opportunity for the
criminal o昀昀ence. To be more explicit:the o昀昀ence must be
committed to pursue the aims of the con昀氀ict or, alternatively,
be carried out with a view to somehow contributing to attain
the ultimate goals of a military campaign or, at a minimum, in
unison with the military campaign.
The fact that the victim is a ‘protected person’ (lato sensu, i.e. as a
term embracing both protected persons under the four Geneva
Conventions and civilians in internal armed con昀氀ict who do not take
direct part in the hostilities) is therefore not a su昀昀icient link with
the armed con昀氀ict per se otherwise every o昀昀ence committed
against ‘protected persons’ (and property) would amount to a war
crime. It is also necessary for the o昀昀ence to bear a close
relationship with the armed con昀氀ict.
A few examples will clarify the above de昀椀nition. Plainly, an o昀昀ence
(murder, torture, rape, etc.) committed by a combatant against a
civilian of the opposing party, or an o昀昀ence against an enemy
combatant (e.g. by using unlawful weapons) in breach of a rule of
IHL is generally classi昀椀ed as a war crime: such o昀昀ence has been
perpetrated to (wrongly) pursue the purposes of war. By the same
token, an o昀昀ence (theft, murder, rape, etc.) committed by a
combatant against another combatant belonging to the same

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belligerent (e.g. the rape of a member of an army by a fellow o昀昀icer

or private), is not a war crime, although the armed con昀氀ict may
have been the occasion for the o昀昀ence (for instance, it is possible
that if there was no armed con昀氀ict they would not happen to serve
in the same purpose.
Theresa Velardi indicates in her paper, War Crimes and Nexus
Requirement that, “178In order to classify conduct as a war crime,
as followed by Prosecutor v. Clement Kayishema, a prosecutor must
prove the nexus between the conduct and the armed con昀氀ict beyond
a reasonable doubt. Speci昀椀cally, the prosecution must show that
there is a “direct connection between the alleged crimes referred to
the Indictment, and the armed con昀氀ict established factually.” “
However, this type of narrow formulation in regards to the nexus
de昀椀nition does not necessarily lead to results of justice. Developing
a more 昀氀uid nexus test, such as the nexus tests used in Prosecutor
v. Kunarac and Prosecutor v. Semanza, would undoubtabely Change
the opportunity for justice. A broader nexus test may allow for an
increase in opportunities of justice. Since cases would not
immediately fail upon trying to meet the nexus requirement, this
broader requirement may potentially open the door to further
opportunities of justice and adjudication. The narrow application of
the nexus requirement in some cases severely impacts the
administration of justice, as exempli昀椀ed by Prosecutor v. Clement
Kayishema.
In the case of Prosecutor v Dusko Tadic a.k.a. Dule , paragraph
573 talks about the nexus between the acts of the accused and
armed con昀氀ict. It says that;

“179For an o昀昀ence to be a violation of international humanitarian

law, [...] this Trial Chamber needs to be satis昀椀ed that each of the
alleged acts was in fact closely related to the hostilities. It would be
su昀昀icient to prove that the crime was committed in the course of or
as part of the hostilities in, or occupation of, an area controlled by
one of the parties. It is not, however, necessary to show that armed
con昀氀ict was occurring at the exact time and place of the proscribed
acts alleged to have occurred, as the Appeals Chamber has
indicated, nor is it necessary that the crime alleged takes place
during combat, that it be part of a policy or of a practice o昀昀icially
endorsed or tolerated by one of the parties to the con昀氀ict, or that
the act be in actual furtherance of a policy associated with the
178
Theresa Velardi, 2021, War Crimes and the Nexus Requirement, 4. 26
179
http://casebook.icrc.org/case-study/icty-prosecutor-v-tadic

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conduct of war or in the actual interest of a party to the con昀氀ict; the

obligations of individuals under international humanitarian law are
independent and apply without prejudice to any questions of the
responsibility of States under international law. The only question,
to be determined in the circumstances of each individual case, is
whether the o昀昀ences were closely related to the armed con昀氀ict as a
whole.
In any event, acts of the accused related to the armed con昀氀ict in
two distinct ways. First, there is the case of the acts of the accused
in the take-over of Kozarac and the villages of Sivci and Jaskici.
Given the nature of the armed con昀氀ict as an ethnic war and the
strategic aims of the Republika Srpska to create a purely Serbian
State, the acts of the accused during the armed take-over and
ethnic cleansing of Muslim and Croat areas of opstina Prijedor were
directly connected with the armed con昀氀ict.
Secondly, there are the acts of the accused in the camps run by the
authorities of the Republika Srpska. Those acts clearly occurred
with the connivance or permission of the authorities running these
camps and indicate that such acts were part of an accepted policy
towards prisoners in the camps in opstina Prijedor. Indeed, such
treatment e昀昀ected the objective of the Republika Srpska to
ethnically cleanse, by means of terror, killings or otherwise, the
areas of the Republic of Bosnia and Herzegovina controlled by
Bosnian Serb forces. Accordingly, those acts too were directly
connected with the armed con昀氀ict. The prosecution succeeded in
providing proof for the nexus and the defendant was found guilty.”
Kunarac case
This case was heard in the International Criminal Tribunal of the
former Yugoslavia (herein
ICTY). This case saw three Bosnian Serb men tried. They were
Dargoljug Kunarac, Radomir Kovac and Zoran Vukovic. They were
being tried for sexual violence and enslavement of Bosniak
women(Bosnian Muslim) in the Bosnian war in the early 1990s
during the armed con昀氀ict that happened in Bosnia and Herzegovina
.
It was ascertained that the three committed sexual violence and
enslavement against Bosniak women as part of a larger scheme of
violence and attrocities. This led to the decision that sexual violence
can constitute war crimes against humanity if committed in
furtherance of an armed con昀氀ict .
It was decided in the appeal judgment that here need not be a
correlation between the area where the actual 昀椀ghting is taking
place and the geographical access of the rules of warfare.

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The rules of war apply to the territory of the states party to a war in
it’s entirety. Under internal

armed con昀氀icts, this applies to the entire region under the control
of the parties and does so until peace is attained and 昀椀ghting stops.
This still applies whether or not actual 昀椀ghting occurs in certain
places. This is because crimes of war tend to be committed in such
environments.
There is the requirement for the crimes committed to be closely
related to the armed con昀氀ict. The war crime(s) need not have been
connected or caused by a policy emanating from the armed con昀氀ict.
It is however, a requirement for the crimes(s) to have been
conducted because of the existence of the armed con昀氀ict and it
must have in昀氀uenced their ability, reason and the manner in which
it was committed.
The following factors may be taken into consideration:

a. the fact that the perpetrator is a combatant

b. The fact that the victim is a non-combatant
c. The fact that the victim is a member of the opposing party
d. The fact that the act may be said to serve the ultimate goal of
a military campaign
e. Whether the crime is committed is part of or in the context of
the perpetrator’s o昀昀icial duties .

INTERNATIONAL CRIMINAL LAW CONTEXTUAL

THRESHOLD FOR PROSECUTING WAR CRIMES
1. WAR CRIME INTRODUCTION
War crime is a serious violation of the laws and custom applicable
in armed con昀氀ict. Article 8 of the Rome Statute lists, but not
exhaustively, some of the violations of international humanitarian
and customary law that are war crimes.

Not every violation of International Humanitarian Law amounts to

a war crime.Some acts are still a violation of International
Humanitarian Law but are not considered to amount to a war
crime. An example is the requirement that canteens should be
installed in all camps, where prisoners of war may purchase
foodstu昀昀s, soap and tobacco at local market prices.180An

180
Geneva Convention III, Article 28

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unavailability of tobacco or if the prices are slightly above market

rates, is a violation of International Humanitarian law, but this does
not amount to a war crime.

To distinguish war crimes from other international humanitarian

law violations, the Appeals Chamber in Tadic` set some
requirements for war crimes within the jurisdiction of the Tribunal.
These include:
a) The violation must infringe a rule of International Humanitarian
Law.
The act in question should be inconsistent with international
humanitarian law for it to be considered a war crime.

b) That rule must be found in customary law or applicable treaty

law.
The act in question should meet the necessary requirements for
application of a norm. If a treaty rule has been violated, the treaty
in question must be binding on all parties involved.

c) The violation must be serious.

The rule in question must be one that protects important values
and the breach involves grave consequences for the victim.
The case should be of such gravity as to warrant further action
from the court.181

d) The violation must entail individual criminal responsibility.

This is because there are some norms that expressly place
obligations on states. Other rules such as the grave breaches of the
Geneva conventions, address individuals. Violations of international
law can only be punished if the rules create obligations and
responsibilities for individuals.

If these four ‘Tadic conditions’ are met by the act in question, then
it can be prosecuted in a tribunal or court. This test has been
applied in subsequent tribunal cases.

181
Rome Statute of the International Criminal Court, Article 17(d)

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THE CONTEXTUAL ELEMENTS OF WAR CRIMES War Crimes

Against Persons
The Geneva Conventions give a list of protected persons, they
include: i. The wounded and sick soldiers182 ii. The sick,
wounded and shipwrecked soldiers as well as shipwreck
victims183 iii. Prisoners of war184 iv. Civilians in times of war
and persons hors de combat185

Any of the following acts against persons protected under the

Geneva Conventions is considered a war crime186:
a) Killing protected persons during international armed con昀氀ict187
b) Killing protected persons during non-international armed
con昀氀icts.188 c) Wounding a combatant who, having laid down his
arms or having no longer means of defence, has surrendered at
discretion10 d) O昀昀ences of Mistreatment
The Yugoslavia tribunal grouped several crimes including torture,
intentionally causing severe su昀昀ering, in昀氀icting signi昀椀cant bodily
harm and subjecting individuals to cruel or inhuman treatment,
under the broader category referred to as o昀昀enses of
mistreatment.11
These crimes have a lose connection to acts such as mutilation and
conducting medical or scienti昀椀c experiments. These o昀昀enses of
mistreatment are stipulated in Article 8(2)(a)(ii) and (b)(x), (c)(i)
and (xi) of International Criminal Court Statute.

i. Torture
Torture is strictly forbidden by the grave breaches’ provisions in all
Geneva Conventions, in addition to being prohibited by Common
Article 3.189
Torture under International armed con昀氀ict is stipulated in Article
8(2)(a)(ii) of ICC Statute while non-international armed con昀氀ict is
stipulated in Article 8(2)(c)(i) of ICC Statute.
182
Geneva Convention I, Article 13
183
Geneva Convention II, Article 13
184
Geneva Convention III, Article 4
185
Geneva Convention IV, Article 3
186
Rome Statute of the International Criminal Court, Article 8(2)a
187
Rome Statute of the International Criminal Court, Article 8(2)(a)(i)
188
Rome Statute of the International Criminal Court, Article
8(2)(c)(i) 10 Rome Statute of the International Criminal Court,
Article 8(2)(b)(vi) 11 Mucic’ et al, ICTY (TC), 1998, paras 440
et seq.
189
Musema ICTR (TC), 2000, para. 285.

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The de昀椀nition of war crimes involving torture entails the in昀氀iction

of severe physical or mental pain and su昀昀ering.190 The key
distinction between torture as a war crime and torture as a crime
against humanity lies, in the context of war crimes, mistreatment
must be demonstrated to serve speci昀椀c purposes.191 The ICC
Statute addresses the mental element of torture concerning the
prohibited conduct and its resulting consequences.192

ii. Causing su昀昀ering or injury to health

The Yugoslavia Tribunal has de昀椀ned the war crime described in
Article 8(a)(iii) of the ICC Statute, as an intentional act or omission
that results in signi昀椀cant mental or physical pain and su昀昀ering. 193

Victims eligible for consideration must fall under the protection of

the Geneva Conventions and are required to endure extensive
su昀昀ering with enduring consequences that a昀昀ect their capacity to
lead a regular productive life.194 It is not necessary for the victim to
be beyond repair.195

iii. Mutilation
Article 8(2)(b)(x) of the ICC Statute address criminal responsibility
for physically mutilating individuals who are under the authority of
one of the warring parties in an international armed con昀氀ict while
Article 8(2)(c)(i) and 2(e)(xi) is for non-international armed
con昀氀ict.196 Physical mutilation is prohibited in Common Article 3 of
the Fourth Geneva Convention, Article 13(1) of Geneva Convention
III, Article 32 of Geneva Convention IV.

e) Inhuman or Cruel treatment

In the context of international armed con昀氀ict, Article 8(2)(a)(ii) of
the ICC Statute classi昀椀es inhuman or cruel treatment as a criminal
o昀昀ense, whereas in non-international armed con昀氀ict, it falls under
the purview of Article 8(2)(c)(i).

190
Art. 8(2)(c)(i)-4 of the ICC Statute.
191
Torture Convention, Article 1(1).
192
Art. 30 of the ICC Statute.
193
Blaskic’, ICTY (TC), 2000, para. 156.
194
Kristic’, ICTY (TC), 2001, para. 513.
195
Akayesu, ICTR (TC), 1998, para. 502.
196
Commentary on the Rome Statute of the International Criminal Court, 2 nd edn (2008), Art. 8, para.
287.

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f) Sexual Violence
Article 8(2)(b)(xxii) of the ICC Statute provides for o昀昀ences in
international armed con昀氀ict such as rape, sexual slavery, forced
prostitution, forced pregnancy, enforced sterilization, and other
forms of sexual violence that represent grave breaches of Geneva
convention. Whereas for non- international armed con昀氀ict is
provided for in Article 8(2)(e)(vi).197

The Yugoslavia Tribunal can prosecute sexual violence as a war

crime even if it does not meet the speci昀椀c de昀椀nition of a grave
breach of the Geneva Conventions. This is because sexual violence
is a serious violation of international law, and the Yugoslavia
Tribunal has a mandate to prosecute all war crimes committed in
the former
Yugoslavia.198
i. Rape
The distinction between rape in war crime and crime against
humanity is the context in which crime is committed.199
Article 30 of the ICC Statute applies, in the case of the mental
element of the o昀昀ence, which is rape.
g) Punishment Without Regular Trial
Article 8(2)(a)(vi) of the ICC statute safeguards the entitlement of
prisoners of war and individuals granted protection under
international law to receive a just and consistent trial. Violating
this right constitutes a violation of the Geneva Convention.

During non-international con昀氀icts, Article 8(2)(c)(iv) of the ICC

Statute addresses the issue of imposing sentences and carrying out
punishments without preceding judgments from a duly established
court that adheres to the universally accepted fundamental
principles of judicial safeguards.

The denial of fair and regular trial rights is categorized as serious

violations under the Geneva Convention, as stipulated in Article
130 of the Geneva Convention III, Article 147 of Geneva Convention
IV and Article 2(f) of the ICTY Statute.

197
Furundzija, ICTY 1998 Para 172
198
The International Criminal Court, Elements of Crimes and Rules of Procedures and Evidence (2001),
184, at 185 et seq.
199
Bemba, ICC (PTC), 2009, para. 286.

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h) Forced Labour
The Yugoslavia tribunal ruled in the case of Naletilic and
Matrinovic that forced labour during armed con昀氀icts is considered
a war crime when it involves violations of Geneva Conventions III
and IV. The case revolved around the utilization of prisoners to
carry out military support tasks in highly perilous conditions, such
as digging trenches near the frontlines.200

i) Compelled Service in Military Forces and Operations of War

i. Compelled Service in the Forces of a Hostile Power

Article 130 of the Geneva Convention III and Article 147 of the
Geneva Convention
IV specify that compelling prisoners of war or individuals protected
under Geneva Convention IV to serve in the military forces of the
adversary constitutes a serious violation of the Geneva Convention.
Article 8(2)(a)(v) of the ICC Statute pertains to individuals who are
protected but are forced to join the armed forces of an opposing
entity, and this provision notably intersects with the war crime of
coerced involvement in war-related operations.

ii. Compelled Participation in Operations of War

Article 8(2)(b)(xv) of the International Criminal Court (ICC) Statute
encompasses the act of coercing individuals, who are a昀昀iliated with
the opposing party, to participate in wartime activities against their
own nation. This encompasses individuals who were previously part
of the armed forces of one of the con昀氀icting parties before the
commencement of war, this applies in international armed con昀氀ict.

The prohibition extends to all individuals from an opposing party

who are situated within the territory under the control of one of the
con昀氀ict parties. For this prohibition to apply, the victim must be
compelled to engage in acts of warfare speci昀椀cally aimed at their
own nation.201

j) Humiliating and degrading treatment

Article 8(2)(b)(xxi) of the ICC Statute addresses acts that infringe
upon personal dignity within the context of international armed
con昀氀icts, particularly actions involving humiliating and degrading

200
Naletilic’ and Matrinovic, ICTY (TC), 2003, paras 268.
201
General requirements for the mental element under, Art. 30 of the ICC
Statute. 25 Aleksovski, ICTY (TC), 1999, paras 56 et seq.

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treatment. In non-international armed con昀氀icts, Article 8

establishes analogous principles on the same issue.
Article 3(1)(c) of the Geneva Conventions, Article 75(2)(b) of
Additional Protocol 1, and Article 4(2)(e) of Additional Protocol II
all include provisions against actions that entail humiliating and
degrading treatment. The application of Article 3(1)(c) of the
Geneva Conventions is emphasized in Aleksovski decision, it aims
to protect dignity and ensure humane treatment.25
In Katanga and Ngudjolo Chui, shows the application of the mental
element of the o昀昀ence.

k) Slavery
In the context of non- international armed con昀氀icts, Article 4(2)(d)
of additional protocol II explicitly forbids slavery and the slave
trade in all their manifestations. This prohibition extends to
individuals who are no longer actively involved in hostilities,
regardless of whether their freedom has been curtailed or not.202
The prohibition of slavery in international armed con昀氀ict serves to
uphold the fundamental principle of humane treatment, and this
objective is articulated through the following provisions; Article 3
of the Geneva Conventions, Article 13 of the Geneva Convention III,
Article 27 of Geneva Convention IV and Article 4(1) of Additional
Protocol II.

l) Deportation or forcible transfer

This is where the perpetrator unlawfully deports or transfers one or
more persons to another state. Under International Armed Con昀氀ict,
this is a grave breach of Geneva Convention IV,203 and only
civilians, not prisoners of war or the wounded, are protected.
Article 8, 昀椀rst and second alternatives of the Rome Statue create
criminal liability for unlawful deportation or transfer of protected
persons.204 The crime is primarily relevant where a party to the
con昀氀ict is occupying territory. The notion of deportation and
transfer simply denotes involuntary, unlawful movement of
protected persons out of their home territory to a place outside the
state’s borders , for deportation and within the state’s borders for

202
Additional Protocol II, Art. 4(1).
203
Geneva Convention IV, Art. 147. ICTY Statute, Art 2(g), first alternative
204
Article 8(2)(a)(vii) of the International Criminal Court Statute

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transfer.205 However, if the victims of deportation give their

consent, there may be no grounds for criminal liability.
Under Non- International Armed Con昀氀ict, Article 8 of the Rome
statute provides that a crime in non- international armed con昀氀ict
concerns ordering the displacement of the civilian population for
reasons related to the con昀氀ict, unless the security of the civilians
involved or imperative military reasons so demand. 206 Additional
Protocol II also contains a prohibition of forcing civilians to leave
their territory because of the con昀氀ict.207 In contrast to International
Armed Con昀氀icts, in civil wars, only an order to transfer populations
is criminalized, and not the transfer itself. An order to transfer a
civilian population is only justi昀椀able in exceptional cases such as
protecting the security of the civilian population, for imperative
military reasons, natural disaster and epidemic among others.

m) Unlawful con昀椀nement

This is the act of depriving a person’s liberty so they cannot move

from one place to another. This is considered a very serious crime
and can be punished by the International Criminal Court. To be
considered unlawful con昀椀nement, the person being kept against
their will must be protected by certain laws, for instance, under the
Geneva Convention, and the con昀椀nement must be related to
International Armed Con昀氀ict. This is a grave breach that is
regulated by Article 8(2)(a)(vii), third alternative of the
International Criminal Court Statute.
In its Mucic et al judgement, the Yugoslavia Tribunal interpreted
unlawful con昀椀nement in light of the relevant provisions of Geneva
Convention IV. The Tribunal found that the de昀椀nition contains two
cases. First, the con昀椀nement of protected persons can itself be
unlawful and entail criminal liability. However, in certain
circumstances, the con昀椀nement of protected persons could be
justi昀椀ed if, for example, a civilian threatens a party to the con昀氀ict
with his or her behavior, or if there is probable cause to believe
that he or she might do so. But here too, con昀椀nement is only
permitted as a last resort. Under no circumstances may a civilian
be interned solely because of his or her political opinion,
nationality, gender nor may internment be used as a collective
punishment. Second, the de昀椀nition is satis昀椀ed if, during lawful

205
The judgement of 2 August 2001 in the case of Kristic, ICTY, para 521, and the case of Naletilic and
Martinovic,
ICTY, judgement of 31 March 2003, paras 519
206
Article 8(2)(e)(viii) of the International Criminal Court
207
Article 17(2) of Additional Protocol II

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con昀椀nement, the procedural rights of the person involved are

violated.208

n) Transferring a party’s own civilian population into occupied

territory
The transfer by an occupying power of parts of its own civilian
population to territory it occupies is criminalized under article 8(2)
(b)(viii), 昀椀rst alternative of the International Criminal Court. Geneva
Convention IV prohibits an occupying power to send or transport
part of its own civilian population into occupied territories.209
However, this violation is not a grave breach of the convention. The
provision aims to prevent a party to the con昀氀ict from changing the
demographic and political realities on the

208
Mucic et al, ICTY, judgement of 16th September 1998, paras 583
209
Article 49(6) of the Geneva Convention IV

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territory of the opposing party by settling parts of its own population there,
in order to create or consolidate political or territorial claims over an
occupied territory.
An exception to the prohibition on transfer of a party’s own civilian
population is contained In Additional Protocol I which permits the sending
of children to foreign countries and occupied territories, under strict
conditions for health or medical reasons.210

o) Conscription, Enlistment, and use of Child Soldiers

The recruitment and use of child soldiers is prohibited by various
instruments of international humanitarian law and human rights law.
Article 8(2)(b)(xxvi) of the International Criminal Court Statute regulates
two forms of recruitment, namely conscripting or enlisting children under
the age of 15 into national armed forces, and using them to participate
actively in the hostilities during international armed con昀氀ict. The reasons
for including the crime of conscription or enlistment of children under the
age of 15 in the Rome Statute were as follows: Children’s participation in
armed con昀氀ict causes trauma, their willingness to use violence is greatly
increased and their education is interrupted.211 Article 4(3)(c) of Additional
Protocol II and Article 77(2) of Additional Protocol I forbid the treaty
parties from recruiting children under the age of 15 in their armed forces
or allowing them to take part in hostilities.

p) Hostage taking
Hostage taking o昀昀ence requires that the perpetrator seize one or more
people and detain them or take them hostage in another way. This crime is
regulated by Article 8(2)(a)(viii) of the International Criminal Court Statute
for International Armed con昀氀ict and Article 8(2)(c)(iii) for non- international
armed con昀氀ict. The Geneva Convention IV and Additional Protocol I contain
a prohibition in taking hostages in connection with international armed
con昀氀ict.212 Common Article 3 and Additional Protocol II also forbid hostage
taking in non- international armed con昀氀ict.213 The Yugoslavia Tribunal, in
the Blaskic case, convicted the defendant not only because of the killing of
hostages, but because of the hostage taking itself, which occurred with the
intention of extorting the release of prisoners and forcing the opponent to
cease military operations.214 However, con昀椀nement of protected persons can

210
Article 78 of Additional Protocol I
211
Commentary on the Rome Statute of International Criminal Court.
212
Article 34(4) of the Geneva Convention IV and Article 75(2)(c) of Additional Protocol I respectively
213
Common Article 3 of Geneva Conventions and Article 4(2) (c) of Additional Protocol II respectively
214
Blaskic, ICTY, JUDGEMENT OF 3RD MARCH 2000, paras 701

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be lawful under certain circumstances such as protecting civilians or as a

security measure, as was held in the Blaskic case, ICTY, judgement of 3rd
March 2000, paragraph 158.

q) Delay in Repatriation
It is a grave breach under Additional Protocol I to unjusti昀椀ably delay
repatriation of prisoners of war and civilians in international armed
con昀氀ict.215 This provision however, is not incorporated in the Rome Statute.
However, cases of unjusti昀椀able delay in repatriating civilians may often be
considered unlawful con昀椀nement.216

2. WAR CRIMES AGAINST PROPERTY

War crimes against property refers to actions during armed con昀氀ict that
intentionally or indiscriminately target civilian population which is
prohibited under international humanitarian law. Such actions can have
devastating consequences for civilians and are subject to prosecution by
international tribunals like the International Criminal Court. The Rome
Statute of the International Court of Justice, in its provisions, outlines the
grave breaches that amount to war crimes against protected under the
provisions of the relevant Geneva conventions as including;
Extensive destruction and appropriation of property, not justi昀椀ed by
military necessity and carried out unlawfully and wantonly.41 This includes;
* The perpetrator destroyed or appropriated certain property
* The destruct or appropriation was not justi昀椀ed by military necessity
* The destruction or appropriation was extensive and carried out wantonly
* The property was protected under the Geneva Convention
* The perpetrator was aware of the factual circumstances that established
that protection * Conduct took place during armed con昀氀ict.
Destroying or seizing enemy’s property unless such destruction or seizure
be imperatively demanded by the necessities of war.217 This is aimed at the
international armed con昀氀ict.

215
Article 85(4)(b) of Additional Protocol I
216
Explanatory Memorandum of the (German) Code of Crimes Against International Law 41
Rome Statute of the International Criminal Court, Article 8(2)(a)(iv), second alternative.
217
Rome Statute of the International Criminal Court, Article 8(2)(b)(xiii), second alternative.

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Destroying or seizing the property of an adversary unless such a

destruction or seizure be imperatively demanded by the necessities of the
con昀氀ict.218 This is aimed at noninternational armed con昀氀icts.
Pillaging a town or place, even when taken by assault.219
These provisions seeks to directly criminalize the expropriation or
destruction of property.

a) EXPROPRIATION
This conduct is described in the relevant provisions of the Rome Statute as
including: appropriation, seizure and/or pillaging whereby appropriation
and seizure require the removal of something from the possession of the
entitled person, for a not insigni昀椀cant period of time, and against the
person’s will or without his or her agreement while in pillaging, the
property is obtained by the perpetrator with the intention of personal use of
the said property and as such, an element of force is required in this.45
Expropriation is limited to speci昀椀c objects that are especially endangered
and in need of protection and which have been included and protected
under the Geneva Conventions I, II, and IV e.g. hospitals, hospital ships and
planes, and other material necessary for medical care.
As it regards seizures, only enemy property is protected and both state and
private enemy property is protected. Pillaging includes no explicit
restrictions on possible objects; in particular, both private and public
property are protected but property owned by persons on the perpetrator’s
side is not protected.

b) DESTRUCTION OF PROPERTY
Article 8(2)(a)(iv), 昀椀rst alternative, is limited to the destruction of property
within the meaning of the Geneva Conventions. For instance, Article 53 of
Geneva Convention IV forbids the destruction of state and civilian property
and as such, applies to the extent to which a party to the con昀氀ict occupies a
territory thus air raids on civilian targets may not be considered as grave
breaches since the party to the con昀氀ict does not occupy the attacked
territory. The scope of the war crime of destruction under Article 8(2)(b)

218
Rome Statute of the International Criminal Court, Article (8)(2)(b)(xvi), second alternative.

219 45
Rome Statute of the International Criminal Court, Article(8)(2)(e)(xvi), second alternative.
lbid, pg 468.

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(xiii), 昀椀rst alternative and (2)(e)(xii), 昀椀rst alternative of the ICC Statute can
be said to cover all destruction caused during the carrying out of hostilities.

4. PROHIBITED METHODS OF WARFARE

International humanitarian law (IHL) prohibits the use of certain methods
of warfare. Rule 17 of customary IHL states that each party to the con昀氀ict
must take all feasible precautions in the choice of means and methods of
warfare with a view to avoiding, and in any event to minimizing, incidental
loss of civilian life, injury to civilians and damage to civilian objects.220

Prohibited methods of warfare include per昀椀dy, terror, starvation, reprisals

against nonmilitary objectives, and indiscriminate attacks, damage to the
natural environment or to works and installations containing dangerous
forces; ordering that there shall be no survivors; pillage; taking hostages;
taking advantage of the presence of the civilian population or population
movements to promote the conduct of hostilities; improper use of
distinctive emblems and signs; and attacks on persons hors de combat or
parachuting from an aircraft in distress.221

The duty to take all feasible precautions in the choice of means and
methods of warfare is set forth in Article 57 (2) (a) (ii) of Additional
Protocol I ¹. This obligation is included in numerous military manuals ¹ and
is supported by o昀昀icial statements and reported practice. The
jurisprudence of the International Criminal Tribunal for the Former
Yugoslavia and of the European Court of Human Rights provides further
evidence of the customary nature of this rule in both international and non-
international armed con昀氀icts.

IHL prohibits certain methods of warfare with a view to avoiding, and in

any event to minimizing, incidental loss of civilian life, injury to civilians
and damage to civilian objects. The duty to take all feasible precautions in
the choice of means and methods of warfare is set forth in Article 57 (2) (a)
(ii) of Additional Protocol. This obligation is included in numerous military
manuals and is supported by o昀昀icial statements and reported practice. The
jurisprudence of the International Criminal Tribunal for the Former
Yugoslavia and of the European Court of Human Rights provides further
220
Customary IHL - Rule 17. Choice of Means and Methods of Warfare. https://ihldatabases.icrc.org/en/customary-
ihl/v1/rule17.
221
Methods of warfare | How does law protect in war? - Online casebook.
http://casebook.icrc.org/a_to_z/glossary/methods-warfare.

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evidence of the customary nature of this rule in both international and non-
international armed con昀氀icts.i
1. Per昀椀dy: This refers to the act of feigning protected status under IHL
with the intent to betray that status and launch an attack. For
example, pretending to surrender and then attacking the enemy
when they let their guard down is considered per昀椀dy. This method of
warfare is prohibited under customary IHL Rule 62 1.

2. Terror: This refers to acts or threats of violence whose primary

purpose is to spread terror among the civilian population. For
example, intentionally targeting civilians or civilian objects such as
hospitals, schools, and places of worship is considered terror. This
method of warfare is prohibited under customary IHL Rule 2 1.

3. Starvation: This refers to the act of using starvation as a method of

warfare by depriving civilians of objects indispensable to their
survival, including food and water . For example, intentionally
blocking humanitarian aid from reaching a civilian population in need
is considered starvation. This method of warfare is prohibited under
customary IHL Rule 53 1.

4. Reprisals against non-military objectives: This refers to the act of

launching an attack against a non-military objective in response to an
attack against a military objective. For example, attacking a hospital
in response to an attack on a military base is considered a reprisal
against a non-military objective. This method of warfare is prohibited
under customary IHL Rule 51 1.

5. Indiscriminate attacks: This refers to attacks that are not directed

at a speci昀椀c military objective or that employ a method or means of
combat that cannot be directed at a speci昀椀c military objective. For
example, using landmines that cannot be targeted at speci昀椀c military
objectives is considered an indiscriminate attack. This method of
warfare is prohibited under customary IHL Rule 22 1.

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6. Damage to the natural environment or to works and

installations containing dangerous forces: This refers to acts that
cause widespread, longterm, and severe damage to the natural
environment or works and installations containing dangerous forces
such as dams, dykes, and nuclear power plants. For example,
intentionally causing an oil spill that would cause long-term damage
to the environment is considered damage to the natural environment.
This method of warfare is prohibited under customary IHL Rule 45 1.

7. Ordering that there shall be no survivors: This refers to the act of

ordering troops not to take prisoners or ordering that all prisoners be
killed. For example, ordering troops not to take prisoners during an
armed con昀氀ict is considered ordering that there shall be no survivors.
This method of warfare is prohibited under customary IHL Rule 141
1.

8. Pillage: This refers to the act of taking property from persons who
are not members of the armed forces or who are no longer taking
part in hostilities . For example, looting civilian homes during an
armed con昀氀ict is considered pillage. This method of warfare is
prohibited under customary IHL Rule 52 1.

9. Taking hostages: This refers to the act of taking persons who are
not members of the armed forces or who are no longer taking part in
hostilities and threatening to kill or harm them in order to compel
another party to do something. For example, taking civilians hostage
in order to force a government or military force into releasing
prisoners is considered taking hostages. This method of warfare is
prohibited under customary IHL Rule 97 1.

10. Taking advantage of the presence of the civilian population or

population movements to promote the conduct of hostilities:
This refers to acts that use civilians as human shields or otherwise
exploit their presence for military purposes. For example, using

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civilians as human shields during an armed con昀氀ict is considered

taking advantage of their presence. This method of warfare is
prohibited under customary IHL Rule 97 1.

11. Improper use of distinctive emblems and signs: This refers to

acts that involve using distinctive emblems and signs such as 昀氀ags
and insignia improperly. For example, using a 昀氀ag of truce
improperly during an armed con昀氀ict is considered improper use of
distinctive emblems and signs. This method of warfare is prohibited
under customary IHL Rule 38 1.
12. Attacks on persons hors de combat or parachuting from an
aircraft in distress: This refers to acts that target persons who are
hors de combat (out of action) due to sickness, wounds, detention, or
any other cause. For example, attacking medical personnel who are
treating wounded soldiers during an armed con昀氀ict is considered an
attack on persons hors de combat. This method of warfare is
prohibited under customary IHL Rule 47 1.

5. Prohibited Means of Warfare

The use of a speci昀椀c weapon in armed con昀氀ict can be completely prohibited

and the weapon itself considered unlawful (e.g. anti-personnel mines,
cluster munitions, chemical weapons). Alternatively, its use may be
restricted in certain situations (e.g. the prohibition against using air
delivered incendiary weapons against a military objective situated in an
area with a concentration of civilians).222

Anti-personnel mines
Anti-personnel mines are small explosive devices placed under, on or near
the ground. They are " victim-activated " and designed to detonate when a
person steps on, handles or comes near it, regardless of whether that
person is a soldier or a civilian man, woman or child.49

222
https://blogs.icrc.org/ilot/2017/08/13/ihl-regulate-means-methods-warfare/ 49 Anti-
Personnel Mines- Overview of the Problem, ICRC, 2009.

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The Convention on the Prohibition of the Use, Stockpiling, Production and

Transfer of Ant-Personnel Mines and on their Destruction (1997) prohibits
this. Under the convention, states are refrained from using, developing,
producing, stockpiling or transferring anti-personnel mines. They are also
obligate to destroy all the existing stockpiles of ammunitions.

Cluster munitions
The Convention on Cluster Munitions (2008) prohibits the use, production,
stockpiling and transfer of cluster munitions (a bomb, shell, rocket or
missile that releases a large number of small explosive submunitions). In
addition to these prohibitions, States possessing cluster munitions are
required to destroy their stockpiles of these weapons and to clear land
contaminated by remnants of cluster munitions (unexploded cluster
munitions and submunitions from a past con昀氀ict). There are also speci昀椀c
obligations on helping victims of cluster munitions.

The Convention on Prohibitions or Restrictions on the Use of Certain

Conventional Weapons Which May Be Deemed to Be Excessively Injurious
or to Have Indiscriminate E昀昀ects (CCW) of 1980 also contains prohibitions
against and restrictions on certain kinds of weapon:

• Protocol I of the CCW prohibits the use of any weapon, the primary
e昀昀ect of which is to injure by fragments that are not detectable in the
human body by X-rays.
• Protocol II prohibits or restricts the use of mines (both anti-personnel
and antivehicle), booby-traps and other similar devices. This Protocol was
amended and new regulations added in 1996.
• Protocol III regulates the use of incendiary weapons, or weapons that
are primarily designed to set 昀椀re to objects or to burn persons through the
action of 昀氀ame or heat, such as napalm bombs and 昀氀ame throwers.
• Protocol IV prohibits the use and transfer of laser weapons
speci昀椀cally designed to cause permanent blindness.
• Protocol V requires the parties to a con昀氀ict to take measures to
reduce the dangers posed by explosive remnants of war (unexploded and
abandoned ordnance).

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Initially, the CCW and its Protocols applied only in international armed
con昀氀icts
(except Protocol II as amended in 1996), but the amendment of Article 1 of
the Convention, on 21 December 2001, extended the application of these
treaties to nonintentional armed con昀氀ict.

Chemical and biological weapons

Use of Chemical and Biological Weapons was treaty banned as early as
1925, after the First World War. (the 1925 Protocol for the Prohibition of
the Use of Asphyxiating, Poisonous or Other Gases, and of Bacteriological
Methods of Warfare). This ban was reinforced in 1972 (the Biological
Weapons Convention) and 1993 (the Chemical Weapons Convention) by
prohibiting, in addition to their use, the development, stockpiling and
transfer of these weapons, and requiring that stockpiles be destroyed.
The Chemical Weapons Convention also prohibits the use of riot-control
agents (e.g. tear gas) as a method of warfare.

Nuclear weapons
There is no comprehensive or universal ban on the use of nuclear weapons.
The Nuclear Non-Proliferation Treaty of 1968 primarily aims to prevent the
spread of nuclear weapons and to advance the goal of nuclear
disarmament. Use of Poison and Poisoned Weapons

Use of poisoned weapons was prohibited under the 1907 Hague

Regulations.223 This is in tandem with the principle of non-discrimination
and the obligation not to cause unnecessary su昀昀ering. This is further
buttressed in the Rome Statute.51 The mental requirement required is
provided for under Article 30 of the Statute:
i. The person means to engage in the conduct; and
ii. The person means to cause that consequence or is aware that it will
occur in the ordinary course of events.224

223
Article 23(e) Hague Regulations, Articles 35(2; 54(1) Additional Protocol I 51
Rome Statute of the International Criminal Court, Article 8(2)(b)(xvii).
224
Article 30 Rome Statute of the International Criminal Court

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Use of Poison gas and similar substances

The statute prohibits the use of means of warfare that are asphyxiating,
poisonous or other gases and all analogous liquids, materials or devices.225
This provision is based on the Geneva Poison Gas Protocol of 1925. To
establish criminal conduct, the perpetrator must use gases, liquids or other
materials that cause death due to their toxic properties. Use of
Prohibition Ammunition
The statute criminalizes the use of bullets that expand or 昀氀atten easily in
the human body.226. This provision is based on the 1899 Hague Declaration.
The crucial point to establish criminal conduct is whether there is
increased ability to wound in comparison to normal bullets.55 The
prohibition of this means re昀氀ects the general prohibition on means that
cause unnecessary su昀昀ering. The perpetrator must be aware that the
nature of the bullets is in such a way that their employment would uselessly
aggravate su昀昀ering or the wounding e昀昀ect.227

GROUP SEVEN

Introduction

The focus of this paper is a discussion on the crime of aggression. In

analysing aggression, several aspects regarding the crime are studied.
These aspects are discussed individually in 昀椀ve sections. Subsequently, the
paper has been divided into 昀椀ve parts; the 昀椀rst section highlights the
material elements of the crime of aggression, the second looks into the
prosecution of aggression in the International Criminal Court (ICC), the
third section discusses challenges facing prosecution of the crime of
aggression and the fourth part concerns the prohibition of aggression under
international law. The last section will look at the crime of aggression in the
Rome Statute of the International Criminal Law after the Kampala Review
Conference.

225
Article 8(2)(b)(xviii) Rome Statute of the International Criminal Court
226
Article 8(2)(b)(xix) Rome Statute of the International Criminal Court
Ibid
227
Ibid

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1. MATERIAL ELEMENTS OF THE CRIME OF AGGRESSION

The de昀椀nition of the crime of aggression is provided for in Article 8 bis of

the Rome statute. It is from this de昀椀nition that the material elements of the
crime are derived. The crime of aggression is de昀椀ned as, the use of force by
a state against the sovereignty, territorial integrity or political
independence of another state or in a manner inconsistent with the charter
of the United Nations General Assembly resolution.228

The material elements of the crime of aggression can be divided into

subjective and objective elements.

The subjective elements are:

a) The criminal intent of the perpetrator, which can be demonstrated

through their participation, planning and combating of the crime.
b) The perpetrator must also be an individual or state o昀昀icial who is
in a position to exercise control over or to direct the political or
military action of the state which commits the crime of aggression.
c) Criminal responsibility can also arise where the individual had
knowledge of the plan of committing the crime of aggression and
they participated in said plan.
d) The crime must be done with the special intent of gaining
territorial advantage and or to obtain economic advantage into the
internal a昀昀airs of another state.
e) The perpetrator was aware of the factual circumstances that
establish use of such force as inconsistent with the UN charter.

The objective elements are:

a) The perpetrator planned, prepared and executed an act of aggression.

228
Article 8 bis Rome Statute.

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b) The person was in a position to e昀昀ectively exercise control over the

political and military action of the state, which committed the crime of
aggression.
c) The act of aggression included the use of armed force by a state
against the sovereignty, territorial integrity or political independence
of another state, or in any manner inconsistent with the UN charter.

2. PROSECUTION OF AGGRESION IN THE INTERNATIONAL

CRIMINAL COURT

This entails holding states’ leaders criminally accountable for the illegal use
of force against other states.229 The Rome Statute provides for certain
crimes over which the International Criminal Court can exercise it
jurisdiction.230 Such crimes are regarded as the most serious crimes of
concern to the international community as a whole. The crime of aggression
falls under this description.231 The International Criminal Court is the
competent judicial body vested with jurisdiction to hear and determine
these most serious crimes of international concern as a whole.232

2.1 Exercise and activation of jurisdiction of the ICC over the crime
of aggression

For the jurisdiction of the International Criminal Court in relation to the

crime of aggression and other crimes as provided for in the Rome Statute to
be brought into operation, it has to be triggered. There has to be a legal
basis for invoking the Court’s jurisdiction in respect to prosecution of the
crime of aggression. Such invocations are caused by trigger mechanisms.
The Rome Statute of the International Criminal Court provides for instances
where the court may exercise its jurisdiction with respect to a crime

229
Mikael Ediger, ‘Prosecuting The Crime Of Aggression At The International Criminal Court: Lessons From The
Tokyo Tribunal, New York Journal of International Law and Politics.
230
See Part 2 of the Rome Statute of the International Criminal Court.
231
Rome Statute of the International Criminal Court, Article 5(d)
232
Rome Statute of the International Criminal Court, Article 5(d).

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referred to in Article 5 of the Statute. 233 Such an instance entails a situation

whereby one or more of such crimes appears to have been committed is
referred to the Prosecutor by a State Party. 234 A situation in which one or
more such crimes appears to have been committed may also be referred to
the Prosecutor by the Security Council 235 acting under Chapter VII of the
Charter of the United Nations.236 Further, the Prosecutor in acting on his
own notion may initiate an investigation with respect of the crime of
aggression.237 From the aforementioned provisions of the Rome Statute,
three trigger mechanisms can be identi昀椀ed herein: a referral to the
Prosecutor by a state party, a referral to the Prosecutor by the Security
Council, and, the Prosecutor on his own notion initiating an investigation
into a situation alleged to be a crime of aggression. These trigger
mechanisms will be discussed in details as herein below.

As regards the 昀椀rst trigger mechanism which entails referral of a situation

by a state party, the Rome Statute implicitly provides that a state can refer
to the prosecutor a situation in which the crime of aggression appears to
have been committed, requesting the prosecutor to investigate the situation
for purposes of determining whether on or more speci昀椀c persons should be
charged with the commission of the crime of aggression. 238 Such a referral
must specify the relevant circumstances and be accompanied by supporting
documentation that is available to the state referring the situation. 239

The second trigger mechanism expounds of the role of the United Nations
Security Council in relation to the prosecution of the crime of aggressions
aforementioned. In the case of referrals of situations by the UN Security
Council, the Court will have jurisdiction over persons within the situation

233
Rome Statute of the International Criminal Court, Article 13.
234
Rome Statute of the International Criminal Court, Article 13 (a).
235
Rome Statute of the International Criminal Court, Article 13 (b).
236
See Chapter VII of the UN Charter on action with respect to threats to peace, breaches of the peace, and acts of
aggression.
237
Rome Statute of the International Criminal Court, Article 13 (a).
238
Rome Statute of the International Criminal Court, Article 14 (1).
239
Rome Statute of the International Criminal Court, Article 14 (2).

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referred.240 Such persons may be nationals of ICC states parties that have
rati昀椀ed the Kampala Amendments; nationals of ICC states parties that have
not rati昀椀ed those amendments or, indeed, nationals of non-parties. 241The
Security Council in exercise of the powers conferred on it by virtue of
Chapter VII of the Charter of the United Nations 242 can direct to the
prosecutor a situation in which one or more crimes of aggression appear to
have been committed.243 This adds a 昀椀lter to the exercise of jurisdiction by
the Court against politically motivated cases, while simultaneously taking
into consideration the role played by the UNSC at the international level, in
the maintenance of international peace and security. 244 The Security
Council, under the Charter of the United Nations, is explicitly mandated
with determining the existence of any threat to the peace, breach of the
peace, or act of aggression and making recommendations or deciding what
measures are to be taken in accordance with the provisions of Articles 41
and 42 of the Charter of the United Nations, in order to maintain or restore
international peace and security.245

As regards the third trigger mechanism involving an initiation of

investigations by the prosecutor, the Statute provides that the prosecutor
may initiate investigations proprio motu on the basis of information on
crimes within the jurisdiction of the Court.246 This simply means that the
Prosecutor may, on his own notion or initiative, initiate investigations into a
situation that revolves around the crime of aggression. The Rome Statute
further provides for the manner in which the Prosecutor is to exercise this
discretion both substantively and procedurally; it provides that the

240
Dapo Akande, ‘Treaty Law and ICC Jurisdiction over the Crime of Aggression’, European Journal of
International Law (2018) 939.
241
Dapo Akande , ‘Treaty Law and ICC Jurisdiction over the Crime of Aggression’, 939.
242
See Chapter VII of the Charter of the United Nations on actions with respect to threats of peace, breaches of the
peace, and acts of aggression.
243
Rome Statute of the International Criminal Court, Article 13 (b).
244
Jeremy Sarkin and Juliana Almeida, ‘Understanding the Activation of the Crime of Aggression at the
International Criminal Court: Progress and Pitfalls’.
245
Charter of the United Nations, Article 39.
246
Rome Statute of the International Criminal Court, Article 15 (1).

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Prosecutor shall analyse the seriousness of the information received and for
this purpose, he may receive additional information from other sources such
as states or organs of the United Nations among others. 247 Upon the
Prosecutor arriving at a conclusion that there is a reasonable basis to
proceed with an investigation, he submits to the Pre-Trial Chamber,
together with supporting materials collected, a request for authorization of
an investigation.248 The Pre-trial Chamber then examines and reviews the
proposals tabled before it by the Prosecutor and if it concludes that there is
indeed a reasonable basis to proceed with an investigation, it authorises
commencement of the same without prejudice to subsequent determinations
by the Court on matters of jurisdiction and admissibility of the case.249

Further, the Rome Statute provides that the determination of the existence
of an act of aggression by an organ outside the Court shall not a昀昀ect the
Court’s own 昀椀ndings about such an act.250 This provision allows the Court to
act independently, without having to wait for a decision by the Security
Council on the existence of an act of aggression and as such, the work of
the Court is broadened in that it can exercise its own decision over maters
of jurisdiction.251

Additionally, Article 15 ter unlike Article 15 bis, is straightforward in the

exercise of jurisdiction by the Court. This is because it establishes the
potential global jurisdiction of the Court when the questions concern the
Security Council referrals, since the Security Council is not dependent on
the rati昀椀cation of the Amendments by the State to be able to refer the case
to the Prosecutor.252

247
Rome Statute of the International Criminal Court, Article 15 (2).
248
Rome Statute of the International Criminal Court, Article 15 (3).
249
Rome Statute of the International Criminal Court, Article 15 (4).
250
Rome Statute of the International Criminal Court, Article 15 bis (9).
251
Jeremy Sarkin and Juliana Almeida, ‘Understanding the Activation of the Crime of Aggression at the
International Criminal Court: Progress and Pitfalls’.
252
Jeremy Sarkin and Juliana Almeida, ‘Understanding the Activation of the Crime of Aggression at the
International Criminal Court: Progress and Pitfalls’.

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3. CHALLENGES FACING THE PROSECUTION OF CRIME OF

AGGRESSION

The crime of aggression is de昀椀ned as the planning, preparation, initiation or

execution of an act of using armed force by a State against the sovereignty,
territorial integrity or political independence of another State. The
prosecution of this crime faces many challenges, both at the international
and domestic levels. Some of these challenges are:

a) Jurisdiction
The International Criminal Court (ICC) has jurisdiction over the crime of
aggression only if the act of aggression is committed by a State Party
that has rati昀椀ed or accepted the amendments to the Rome Statute on the
crime of aggression, or by a State Party that has not done so but has
declared that it accepts the ICC’s jurisdiction, or if the situation is
referred to the ICC by the UN Security Council. This means that many
acts of aggression committed by non-State Parties or States that have
not accepted the amendments are outside the ICC’s reach. Moreover, the
ICC can only exercise its jurisdiction over the crime of aggression after a
determination by the UN Security Council that an act of aggression has
occurred, which may be subject to political considerations and veto
powers. At the domestic level, States may have di昀昀erent bases of
jurisdiction for prosecuting the crime of aggression, such as
territoriality, nationality, universality or passive personality, but they
may also face legal and practical obstacles in exercising such
jurisdiction.
b) Immunities
The prosecution of the crime of aggression may be hindered by the
immunities that some State o昀昀icials enjoy under international law. For
example, heads of State, heads of government and foreign ministers are
immune from criminal jurisdiction in foreign States, unless they are
prosecuted by an international court or tribunal that has been

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established by a resolution of the UN Security Council. This means that

domestic courts may not be able to prosecute these o昀昀icials for the crime
of aggression unless they waive their immunities or are no longer in
o昀昀ice. Even before the ICC, these o昀昀icials may claim immunities if they
belong to non-State Parties or States that have not accepted the
amendments on the crime of aggression.
c) Leadership nature
The crime of aggression is a leadership crime, which means that only
individuals who are in a position to e昀昀ectively exercise control over or to
direct the political or military action of a State can be held criminally
responsible for it. This excludes lower-level perpetrators who may have
participated in or facilitated the act of aggression, but who did not have
the authority or in昀氀uence to shape the State’s policy or decision-making.
This may create a gap in accountability and justice for victims of
aggression, as well as a distorted picture of responsibility for this crime.
d) Exclusion of non-State actors
The de昀椀nition of the crime of aggression adopted by the ICC only covers
acts of aggression committed by one State against another State. This
excludes acts of armed force by non-State actors, such as rebel groups,
terrorist organizations or private military companies, which may also
pose serious threats to international peace and security. Although these
acts may be prosecuted as other crimes under international law, such as
war crimes or crimes against humanity, they do not trigger the same
legal consequences and responsibilities as acts of aggression by States.
e) Humanitarian intervention
The de昀椀nition of the crime of aggression does not explicitly exclude
humanitarian intervention as a possible justi昀椀cation or excuse for using
armed force against another State without its consent or authorization
by the UN Security Council. Humanitarian intervention is a controversial
concept that refers to the use of force by one or more States to prevent
or stop grave human rights violations or humanitarian crises in another

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State. Some argue that humanitarian intervention is lawful and

necessary under certain circumstances, while others contend that it is
illegal and undermines the prohibition of the use of force and the
principle of non-intervention in international law. The lack of clarity on
this issue may create uncertainty and inconsistency in prosecuting the
crime of aggression.
f) Complementarity
The principle of complementarity means that the ICC can only exercise
its jurisdiction over a case if the State concerned is unwilling or unable
to genuinely carry out its own investigation or prosecution. This implies
that States have the primary responsibility and duty to prosecute the
crime of aggression at the domestic level. However, this may also pose
challenges for ensuring e昀昀ective and impartial justice for this crime, as
States may lack the legal framework, capacity, resources or political will
to do so. Moreover, States may face pressure or interference from other
States or international actors in prosecuting their own o昀昀icials or those
of other States for the crime of aggression.

4. PROHIBITION OF AGGRESSION UNDER INTERNATIONAL

CRIMINAL LAW

4.1 developments prior to World War II

In the 19th and 20th centuries, war was considered a personal and legitimate
political tool. States were free to wage war in pursuit of their interests. The
international legal limitation was only concerned with the methods and
means of waging war ‘jus in bello’ but not the right to wage war itself ‘jus
ad bellum’.

States' unlimited right wage war was 昀椀rst called into question in the course
of The Hague Conferences of 1899 and 1907 but it did not lead to a clear
prohibition. Parties however obligated themselves to settle con昀氀icts

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peacefully as far as possible253 and they introduced a mediation process

before any resort to weapons to be undertaken only when circumstances
permitted254.

After World War I, the international community attempted further to

abdicate war as an instrument of politics. This could be seen in the
Preamble of the League of Nations which emphasized the treaty parties
‘duty not to resort to war’ in order to ensure international peace and
security. Parties agreed to respect the territorial integrity and existing
political independence of states255. An Arbitration system was also
introduced in order to settle disputes that could lead to war. Depending on
the character of the dispute, it provided for a decision by either a court of
arbitration or the League of Nations Council. If a state complied with the
decision of an arbitrator or a unanimous decision of the Council, no war
would be waged against it. In any situation, three months had to have
passed between the decision of the arbitrator or the Council and the
beginning of hostilities. If a state decided not to comply with the dispute
settlement system Art 16256 provided for the imposition of mainly economic
sanctions. Overall, the covenant was incomplete as aggressive war was not
subject to prohibition and the covenant re昀氀ected a traditional concept of
war which in particular required states’ intent to bring about a state of
war.257 Hence states could avoid their obligations under the Covenant
claiming for example that the con昀氀ict lacked ‘animus belligerendi’
258
(intention to 昀椀ght) and thus was not a war in a formal sense. This system
of war prevention was expanded on a regional level in the treaty of Locarno,
Germany, and France as well as Germany and Belgium who agreed to solve

253
Hague Conven琀椀on for the Paci昀椀c Se琀琀lement of Interna琀椀onal Disputes of 1899 and 1907, Ar琀椀cle 1.
254
Hague Conven琀椀on for the Paci昀椀c Se琀琀lement of Interna琀椀onal Disputes of 1899 and 1907, Ar琀椀cle 2.
255
The Covenant of the League of Na琀椀ons, Ar琀椀cle 10.
256
The Covenant of the League of Na琀椀ons, Ar琀椀cle 16.
257
Gerhard Werle and Florian Jeberger, Principles of Interna琀椀onal Criminal Law. 3rd Edi琀椀on, Oxford 2014 (802-
815).
258
Gerhard Werle and Florian Jeberger, Principles of Interna琀椀onal Criminal Law. 3rd Edi琀椀on, Oxford 2014 (802-
815).

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con昀氀icts peacefully in their mutual relations. Use of force was only allowed
in self-defense and during sanctions.

These inadequacies were corrected by the Geneva Protocol of 2 Oct 1929,

which provided for a comprehensive ban on war and Article 10 described
aggressors. At the same time, the dispute settlement system of the covenant
was considerably expanded and a system of collective security was added.259

One of the big leaps towards a comprehensive ban on war was taken with
the Kellogg-Briand Pact of 27 August 1928. In the Preamble, the state
parties declared their belief in the renunciation of war as an instrument of
national policy. The disadvantage of the Pact was that it had the same
narrow and formal concept as the Covenant of League of Nations. The Pact
also did not have a de昀椀nition of lawful self-defense hence states abused this
as they argued their right to self-defense was not limited.

By 1939, 63 of 67 states had rati昀椀ed the Kellogg-Briand Pact giving it near-

universal applicability. The Pact was a昀昀irmed by state practice and formed
the basis for other multilateral and bilateral prohibitions of war.

Despite being unable to prevent World War II by the end of the 1930s the
position of international law had improved from being a legitimate tool to
and now aggressive war was considerably restricted if not completely
outlawed.

4.2 Current Status

After World War II Prohibition of aggression was expanded in the UN

Charter and it liberated itself from the traditional concept of war. The
Charter prohibits the threat or use of force against the territorial integrity
or political independence of any state, or in any other manner inconsistent
260
with the purposes of the United Nations. The exception to this is the right
259
The Covenant of the League of Na琀椀ons, Ar琀椀cle 11.
260
Charter of the United Na琀椀ons and Statute of the Interna琀椀onal Court of Jus琀椀ce, Ar琀椀cle 2(4)

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of member states to defend themselves against an armed attack individually

or collectively as long as the Security Council does not take necessary
measures.261 The Charter also created a system of collective security that
granted the Security Council a broad monopoly of force. Where there is a
threat, breach to peace or an act of aggression 262 the Security Council is
authorized to take military measures 263. It can also authorize individual
states or groups of states to use military force.

In summary The UN Charter employs three concepts in relation to

aggressive acts.

 Article 2(4) prohibits the threat or use of force.

 Article 39 grants the Security Council the right, where acts of
aggression occur, to take measures in accordance with Chapter VII of
the Charter.
 Article 51 recognizes the right to self-defense against an armed
attack.

The term ‘act of aggression’ as used in Article 39 was explained in the

Annex to UN General Assembly Resolution 331(XXIX) of 14 December 1974.
Under Article 1,264 an act of aggression is the use of armed force by a state
against the sovereignty, territorial integrity, or political independence of
another state. Article 3 lists examples of crimes of aggression. Therefore, it
can be seen that crimes of aggression include acts of lesser intensity and
magnitude to war265.

261
Charter of the United Na琀椀ons and Statute of the Interna琀椀onal Court of Jus琀椀ce, Ar琀椀cle 51
262
Charter of the United Na琀椀ons and Statute of the Interna琀椀onal Court of Jus琀椀ce, Ar琀椀cle 39
263
Charter of the United Na琀椀ons and Statute of the Interna琀椀onal Court of Jus琀椀ce, Ar琀椀cle 42
264
UN General Assembly Resolu琀椀on 331(XXIX) of 14th December 1974, Ar琀椀cle 1
265
Gerhard Werle and Florian Jeberger, Principles of Interna琀椀onal Criminal Law. 3rd Edi琀椀on, Oxford 2014(802-815)

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5. THE CRIME OF AGGRESSION IN THE ROME STATUTE OF THE

INTERNATIONAL CRIMINAL LAW AFTER THE KAMPALA
REVIEW CONFERENCE

5.1 The Kampala Review Conference

A Review Conference of the Rome Statute took place from 31 May to 11

June 2010, in Kampala, Uganda to consider amendments to the Rome
Statute of the International Criminal Court.

Background

The crime of aggression is one of the four crimes over which the
International Criminal Court has jurisdiction in accordance with the Rome
Statute. On 11 June 2010, States Parties to the Rome Statute adopted a
de昀椀nition of the crime. In essence, a crime of aggression is committed when
a political or military leader of a State causes that State to illegally use
force against another State, provided that the use of force constitutes by its
character, gravity, and scale a manifest violation of the United Nations
Charter. The following are the most important steps that led to the adoption
of the de昀椀nition, beginning with the seminal year 1945.

5.2 The UN Charter and the Nuremberg and Tokyo trials

(1945 – 1948)

On 24 October 1945, the United Nations Charter entered into force, thus
establishing a system of collective security. Article 2(4) of the Charter of the
United Nations prohibits the threat or use of force against the territorial
integrity or political independence of any state, or in any other manner
inconsistent with the Purposes of the United Nations. 266 The Charter allows
the use of force only for the purpose of lawful individual or collective self-
defense or upon authorization by the Security Council. The Charter
mandates the Security Council to respond to threats to the peace, breaches

266
United Na琀椀ons Charter, 24 October 1945, Ar琀椀cle 2(4).

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of the peace, and acts of aggression. 267 It does not however de昀椀ne the
notion of aggression, nor does it provide for individual criminal
accountability in cases of aggression. The victorious powers of World War II
conducted trials in Nuremberg (1945 – 46) and Tokyo (1946 – 48) to
prosecute those most responsible for crimes against peace, war crimes, and
crimes against humanity.268 The Nuremberg Charter de昀椀ned crimes against
peace as ‘planning, preparation, initiation or waging of a war of aggression,
or a war in violation of international treaties, agreements or assurances, or
participation in a Common Plan or Conspiracy for the accomplishment of
the foregoing’. It did not however specify further, what was meant by
(aggression).269 Subsequent to the Nuremberg and Tokyo trials, the UN
General Assembly a昀昀irmed the principles of the Nuremberg Charter and of
the Nuremberg Tribunal’s judgment in Resolution 95(I).

5.3 The General Assembly De昀椀nition (1974)

Following decades of negotiations, in December 1974, the UN General

Assembly adopted Resolution 3314 (XXIX). The purpose of the de昀椀nition of
aggression annexed to the Resolution was to give guidance to the Security
Council in its determination of the existence of an act of aggression. 270
Notably, the de昀椀nition deals with the State act of aggression, not the act of
an individual who may be responsible for the State act. 271 The de昀椀nition of
aggression essentially mirrors the notion of the illegal use of force
contained in Article 2(4) of the Charter and enumerates speci昀椀c examples of
acts of aggression, such as the invasion or attack by the armed forces of a
267
Handbook on the Ra琀椀昀椀ca琀椀on and implementa琀椀on of the Kampala Amendments on the Crime of Aggression to
the Rome Statute of the ICC, page 1.
268
Handbook on the Ra琀椀昀椀ca琀椀on and implementa琀椀on of the Kampala Amendments on the Crime of Aggression to
the Rome Statute of the ICC, page 1.
269
Handbook on the Ra琀椀昀椀ca琀椀on and implementa琀椀on of the Kampala Amendments on the Crime of Aggression to
the Rome Statute of the ICC, page 2.
270
Handbook on the Ra琀椀昀椀ca琀椀on and implementa琀椀on of the Kampala Amendments on the Crime of Aggression to
the Rome Statute of the ICC, page 2.
271
Handbook on the Ra琀椀昀椀ca琀椀on and implementa琀椀on of the Kampala Amendments on the Crime of Aggression to
the Rome Statute of the ICC, page 2.

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State of the territory of another State (including related military

occupation), bombardment by the armed forces of a State against the
territory of another State, etc.272 The core provisions of the 1974 de昀椀nition
(Articles 1 and 3) were later incorporated into part of the 2010 de昀椀nition of
the crime of aggression under the Rome Statute.

5.4 The Rome Conference (1998)

The question whether or not to include the crime of aggression, and if so,
how to de昀椀ne it, was one of the central disputes at the July 1998 diplomatic
conference that led to the adoption of the Rome Statue of the International
Criminal Court. Delegates could not agree on a de昀椀nition of the crime of
aggression, as some wanted only «wars of aggression» to be covered,
whereas others wanted to use what is arguably the broader notion of «acts
of aggression» contained in the 1974 GA de昀椀nition. 273 Even more di昀昀icult
was the question of whether the ICC should only prosecute crimes of
aggression once the Security Council has determined the existence of an act
of aggression by one State against another. 274 As part of the 昀椀nal
compromise, the crime of aggression was included in the list of crimes
under the jurisdiction of the Court. However, the 昀椀rst Review Conference
deferred the de昀椀nition and the conditions for the exercise of jurisdiction
(including the question of the role of the Security Council) for
consideration.275

5.5 The Kampala Review Conference (2010)

272
Handbook on the Ra琀椀昀椀ca琀椀on and implementa琀椀on of the Kampala Amendments on the Crime of Aggression to
the Rome Statute of the ICC, page 2.

273
Handbook on the Ra琀椀昀椀ca琀椀on and implementa琀椀on of the Kampala Amendments on the Crime of Aggression to
the Rome Statute of the ICC, page 2.
274
Handbook on the Ra琀椀昀椀ca琀椀on and implementa琀椀on of the Kampala Amendments on the Crime of Aggression to
the Rome Statute of the ICC, page 2.
275
Handbook on the Ra琀椀昀椀ca琀椀on and implementa琀椀on of the Kampala Amendments on the Crime of Aggression to
the Rome Statute of the ICC, page 2.

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Following the 1998 Rome Conference, the Preparatory Commission for the
ICC (PrepComm, 1999 – 2002) and later the Special Working Group on the
Crime of Aggression (SWGCA, 2003 – 2009) continued negotiations on the
outstanding issues regarding the crime of aggression. In February 2009, the
SWGCA found a consensus agreement on the de昀椀nition of the crime of
aggression.276 The 2010 Kampala Review Conference used that de昀椀nition
and could thus focus on other outstanding issues, i.e., the conditions for the
exercise of jurisdiction.277 States Parties seized the historic opportunity and
adopted Resolution RC/Res.6 by consensus. The resolution amended the
Rome Statute to include, inter alia, new article 8 bis containing a de昀椀nition
of the crime of aggression and new articles 15 bis and 15 ter, containing
complex provisions on the conditions for the exercise of jurisdiction. 278
Notably, the compromise included a clause that prevented the Court from
exercising jurisdiction over the crime of aggression immediately. Instead,
the Assembly of States Parties had to take a further one-time decision to
activate the Court’s jurisdiction, no earlier than 2017 and the Court could
not exercise its jurisdiction until a year after the 30th rati昀椀cation, which
occurred on 26 June 2016.

5.6 Amendments to the Rome Statute of the International

Criminal Court on the Crime of Aggression
I. Article 5, paragraph 2, of the Statute is deleted.
II. The following text is inserted after article 8 of the Statute:

Article 8 bis

Crime of aggression

276
Handbook on the Ra琀椀昀椀ca琀椀on and implementa琀椀on of the Kampala Amendments on the Crime of Aggression to
the Rome Statute of the ICC, page 2.
277
Handbook on the Ra琀椀昀椀ca琀椀on and implementa琀椀on of the Kampala Amendments on the Crime of Aggression to
the Rome Statute of the ICC, page 2.

278
Handbook on the Ra琀椀昀椀ca琀椀on and implementa琀椀on of the Kampala Amendments on the Crime of Aggression to
the Rome Statute of the ICC, page 2.

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1. For the purpose of this Statute, “crime of aggression” means the

planning, preparation, initiation or execution, by a person in a position
e昀昀ectively to exercise control over or to direct the political or military
action of a State, of an act of aggression which, by its character, gravity
and scale, constitutes a manifest violation of the Charter of the United
Nations.
2. For the purpose of paragraph 1, “act of aggression” means the use of
armed force by a State against the sovereignty, territorial integrity or
political independence of another State, or in any other manner
inconsistent with the Charter of the United Nations. Any of the following
acts, regardless of a declaration of war, shall, in accordance with United
Nations General Assembly resolution 3314 (XXIX) of 14 December 1974,
qualify as an act of aggression:

a) The invasion or attack by the armed forces of a State of the

territory of another State, or any military occupation, however
temporary, resulting from such invasion or attack, or any annexation
by the use of force of the territory of another State or part thereof;

b) Bombardment by the armed forces of a State against the territory

of another State or the use of any weapons by a State against the
territory of another State;

c) The blockade of the ports or coasts of a State by the armed forces

of another State;

d) An attack by the armed forces of a State on the land, sea or air

forces, or marine and air 昀氀eets of another State;

e) The use of armed forces of one State which are within the territory
of another State with the agreement of the receiving State, in
contravention of the conditions provided for in the agreement or any
extension of their presence in such territory beyond the termination of
the agreement;

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f) The action of a State in allowing its territory, which it has placed at

the disposal of another State, to be used by that other State for
perpetrating an act of aggression against a third State;

g) The sending by or on behalf of a State of armed bands, groups,

irregulars or mercenaries, which carry out acts of armed force against
another State of such gravity as to amount to the acts listed above, or
its substantial involvement therein.

III. The following text is inserted after article 15 of the Statute:

Article 15 bis

Exercise of jurisdiction over the crime of aggression

(State referral, proprio motu)

1. The Court may exercise jurisdiction over the crime of aggression in

accordance with article 13, paragraphs (a) and (c), subject to the
provisions of this article.
2. The Court may exercise jurisdiction only with respect to crimes of
aggression committed one year after the rati昀椀cation or acceptance of
the amendments by thirty States Parties.
3. The Court shall exercise jurisdiction over the crime of aggression in
accordance with this article, subject to a decision to be taken after 1
January 2017 by the same majority of States Parties as is required for
the adoption of an amendment to the Statute.
4. The Court may, in accordance with article 12, exercise jurisdiction
over a crime of aggression, arising from an act of aggression
committed by a State Party, unless that State Party has previously
declared that it does not accept such jurisdiction by lodging a
declaration with the Registrar. The withdrawal of such a declaration
may be e昀昀ected at any time and shall be considered by the State Party
within three years.

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5. In respect of a State that is not a party to this Statute, the Court shall
not exercise its jurisdiction over the crime of aggression when
committed by that State’s nationals or on its territory.
6. Where the Prosecutor concludes that there is a reasonable basis to
proceed with an investigation in respect of a crime of aggression, he
or she shall 昀椀rst ascertain whether the Security Council has made a
determination of an act of aggression committed by the State
concerned. The Prosecutor shall notify the Secretary-General of the
United Nations of the situation before the Court, including any
relevant information and documents.
7. Where the Security Council has made such a determination, the
Prosecutor may proceed with the investigation in respect of a crime of
aggression.
8. Where no such determination is made within six months after the date
of noti昀椀cation, the Prosecutor may proceed with the investigation in
respect of a crime of aggression, provided that the Pre-Trial Division
has authorized the commencement of the investigation in respect of a
crime of aggression in accordance with the procedure contained in
article 15, and the Security Council has not decided otherwise in
accordance with article 16.
9. A determination of an act of aggression by an organ outside the Court
shall be without prejudice to the Court’s own 昀椀ndings under this
Statute.
10. This article is without prejudice to the provisions relating to the
exercise of jurisdiction with respect to other crimes referred to in
article 5.

IV. The following text is inserted after article 15 bis of the Statute:

Article 15 ter

Exercise of jurisdiction over the crime of aggression

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(Security Council referral)

1. The Court may exercise jurisdiction over the crime of aggression in

accordance with article 13, paragraph (b), subject to the provisions of
this article.
2. The Court may exercise jurisdiction only with respect to crimes of
aggression committed one year after the rati昀椀cation or acceptance of
the amendments by thirty States Parties.
3. The Court shall exercise jurisdiction over the crime of aggression in
accordance with this article, subject to a decision to be taken after 1
January 2017 by the same majority of States Parties as is required for
the adoption of an amendment to the Statute.
4. A determination of an act of aggression by an organ outside the Court
shall be without prejudice to the Court’s own 昀椀ndings under this
Statute.
5. This article is without prejudice to the provisions relating to the
exercise of jurisdiction with respect to other crimes referred to in
article 5.
V. The following text is inserted after article 25, paragraph 3, of the
Statute:

3 bis. In respect of the crime of aggression, the provisions of this article

shall apply only to persons in a position e昀昀ectively to exercise control over
or to direct the political or military action of a State.

VI. The 昀椀rst sentence of article 9, paragraph 1, of the Statute is

replaced by the following sentence:
1. Elements of Crimes shall assist the Court in the interpretation and
application of articles 6, 7, 8 and 8 bis.
VII. The chapeau of article 20, paragraph 3, of the Statute is replaced
by the following paragraph; the rest of the paragraph remains
unchanged:

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3. No person who has been tried by another court for conduct also
proscribed under article 6, 7, 8 or 8 bis shall be tried by the Court with
respect to the same conduct unless the proceedings in the other court:

i
International humanitarian law | British Red Cross.
https://www.redcross.org.uk/about-us/what-wedo/protecting-people-in-
armed-con昀氀ict/international-humanitarian-law.

Methods and means of warfare - ICRC. https://www.icrc.org/en/doc/war-

and-law/conducthostilities/methods-means-warfare/overview-methods-and-
means-of-warfare.htm.

How does IHL regulate the means and methods of warfare?.

https://blogs.icrc.org/ilot/2017/08/13/ihl-regulate-means-methods-warfare/.

WHEN WHO DOES IHL APPLY? DOES IHL PROTECT? - International

Committee of ....
https://www.icrc.org/en/doc/assets/昀椀les/other/icrc_002_0850.pdf .

Fundamentals of IHL | How does law protect in war? - Online casebook.

http://casebook.icrc.org/law/fundamentals-ihl.

International law on the conduct of hostilities: overview.

https://www.icrc.org/en/document/conduct -hostilities.

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