4. While the term ‘non-international armed conflict’ is used in common Article 3 and Additional Protocol II, this paper will generally employ the term ‘internal armed conflict’.

5. See Meron, Th., ‘Is International Law Moving towards Criminalization?’, 9 EJIL (1998) pp. 18 at p. 30CrossRefGoogle Scholar.

6. As many delegations were strongly committed to a provision addressing aggression, despite their inability to agree on a suitable definition, Art. 5(1) also makes reference to the crime of aggression. Art. 5(2) provides that the ICC will exercise jurisdiction over this crime once an amendment to the Statute is adopted, articulating a definition of the crime and the applicable preconditions.

7. See Report of the Preparatory Committee on the Establishment of an International Criminal Court, Vol. I, GAOR 51st Sess., Supp. No. 22 (A/51/22) [Report of the PrepCom (1996)] at paras. 51–54 and 78. See also von Hebel, H. and Robinson, D., ‘Crimes within the Jurisdiction of the Court’, in Lee, R.S., ed., Rome Statute of the International Criminal Court: Negotiating Process, Major Issues and Reaching Agreement on Substance (New York, Kluwer 1999 (forthcoming))Google Scholar.

8. See The Prosecutor v. Dusko Tadić a/k/a ‘Dule’, case No. IT-94-I-AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995 [Tadić (Appeal on Jurisdiction)] at para. 96.

9. As Meron observes, ‘The sovereignty of states and their insistence on maintaining maximum discretion in dealing with those who threaten their “sovereign authority” have combined to limit the reach of international humanitarian law applicable to non-international armed conflict.’ In Meron, Th., ‘International Criminalization of Internal Atrocities’, 89 AJIL (1995) pp. 554 at 554CrossRefGoogle Scholar.

10. See for example, the statements and resolutions canvassed in Tadić (Appeal on Jurisdiction), supra n. 8 at paras. 100–124. See also the Lieber Code, reproduced in Schindler, D. and Toman, J., The Laws of Armed Conflict: A Collection of Conventions, Resolutions and Other Documents, 3rd edn., (Geneva, Henri Dunant Institute 1988) at p. 3Google Scholar.

11. Tadić (Appeal on Jurisdiction), supra n. 8 at para. 97.

12. This provision has often been referred to as ‘a Convention in miniature’ within the Geneva Conventions. See the Commentary to Geneva Convention 1 (Geneva, International Committee of the Red Cross 1952) at p. 48Google Scholar.

13. Green, L.C., The contemporary law of armed conflict (Manchester, Manchester University Press 1993) at pp. 57–58Google Scholar.

14. Bothe, M. et al. , New Rules for Victims of Armed Conflict (The Hague, Martinus Nijhoff 1982) at p. 605Google Scholar; Levie, H.S., The Law of Non-International Armed Conflict (Dordrecht, Martinus Nijhoff 1987) at pp. 27–90Google Scholar.

15. Bothe, op. cit n. 14, at pp. 606–608; Sandoz, et al. , Commentary on the Additional Protocols of 8 June 1977 (Geneva, ICRC/Dordrecht, Martinus Nijhoff 1987) at p. 1336Google Scholar. As part of this agreement, it was necessary to define armed conflict in a restrictive manner, to the regret of many delegations.

16. One may look in vain for grave breaches provisions relating to common Art. 3 or Additional Protocol II.

17. See Plattner, D., ‘The Penal Repression of Violations of International Humanitarian Law Applicable in Non-international Armed Conflicts’, 30 IRRC (1990) pp. 409CrossRefGoogle Scholar. See also the UN Report of the Group of Experts for Cambodia pursuant to GA Res. 52/135, annex to UN Doc. S/1999/231, 16 March 1999, pp. 20–21, concluding that violations of common Art. 3 could not be viewed as war crimes under customary international law as far back as 1975.

18. Meron, loc. cit. n. 9, at p. 561.

19. International Court of Justice, Case Concerning Military and Paramilitary Activities in and against Nicaragua, ICJ Rep. (1986) at p. 114.

20. Report of the ILC (1991) UN Doc. A/46/10 at p. 270 (commentary on draft Art. 22).

21. Report of the Secretary-General Pursuant to Paragraphs 1–2 of SC Res. 808 (1993) UN Doc. S/25704 (3 May 1993) at para. 34.

22. Art. 2 incorporates the grave breaches of the Geneva Conventions of 1949, and Art. 3 (violations of the laws or customs of war) was based on the Hague Regulations of 1907: UN Doc. S/25704 (3 May 1993) at paras. 34 and 41–44.

23. UN Doc. S/PV.3217 of 25 May 1993, p. 11 (France), p. 15 (US) and 19 (UK).

24. UN Doc. S/RES/955, annex (1994).

25. Tadić (Appeal on Jurisdiction), supra n. 8.

26. Ibid., at paras. 87–94.

27. Ibid., at para. 126.

28. The Nuremberg Tribunal concluded that criminal responsibility existed for violations of the Hague Regulations, notwithstanding the lack of a provision to that effect in the Regulations themselves. Ibid., at para. 128.

29. Ibid., at paras. 128 and 129.

30. Report of the ILC on the work of its forty-sixth session, UN GAOR 49th Sess., Supp. No. 10 (A/49/10) at pp. 74–75. In the ILC draft Statute, a distinction was made between core crimes and treaty crimes. The former were based on customary international law, whereas the latter were based on treaties that would appear in an Annex to the Statute, allowing states parties to choose which treaty crimes they recognized. Thus, war crimes were addressed under two separate headings, with serious violations of the laws and customs applicable in armed conflict appearing with the core crimes, and grave breaches of the 1949 Geneva Conventions and of Additional Protocol I thereto appearing with the treaty crimes.

31. Regulations to Hague Convention IV Respecting the Laws and Customs of War on Land.

32. Report of the ILC (1994) at pp. 73–75.

33. Report of the Ad Hoc Committee, UN GAOR 50th Sess., Supp. No. 22 (A/50/22) at paras. 75 and 76; Report of the PrepCom, Vol. I, supra n. 7, paras. 52, 53, 55, 75 and 76. It was also agreed that the different categories in the ILC draft (serious violations of the laws and customs of war, grave breaches and so on) were to a considerable extent overlapping and could be replaced by a single concept, war crimes, which would cover the whole field of norms applicable in armed conflict.

34. These precedents included, inter alia, the Hague Convention IV of 1907, the 1949 Geneva Conventions, the 1954 Hague Convention on Cultural Property and the 1977 Additional Protocols to the Geneva Conventions.

35. As noted, these questions were closely related; for example, the degree to which a norm was considered fundamental influenced whether states regarded it as a norm-giving rise to individual criminal responsibility.

36. See von Hebel and Robinson, op. cit. n. 7.

37. Report of the Ad Hoc Committee, supra n. 33, at para. 74 and Report of the PrepCom (1996), supra n. 7, para. 78. This minority consisted of, inter alia, the following states: China, India and several other Asian states, several Arab states, the Russian Federation and Turkey.

38. Report of the Ad Hoc Committee, ibid., at para. 74. See also the Report of the PrepCom 1996, ibid., at para. 78.

39. The US proposal, UN Doc. A/AC.249/1997/WG.1/DP.1 of 14 February 1997, was the outcome of informal discussions between France, Japan, the United Kingdom and the United States, whereas the New Zealand/Switzerland proposal, UN Doc. A/AC.249/1997/WG.1/DP.2 of 14 February 1997, reflected a working paper prepared by the International Committee of the Red Cross. The US paper relied more on Hague law, whereas the New Zealand/Switzerland proposal relied more on the Additional Protocols. Another difference was that the US proposal introduced a threshold provision, meaning that the Court could only exercise jurisdiction over war crimes committed as part of a systematic plan or policy or as part of a large-scale commission of such offences.

40. Germany took essential steps to narrow these differences by hosting inter-sessional meetings of experts from interested western states. The resulting ‘Bonn paper’, UN Doc. A/AC.249/1997/WG.1/CRP.8 of 5 December 1998, was accepted as a basis for discussion at the December 1997 PrepCom, with several new provisions and options added. See Report of the PrepCom of December 1997, UN Doc A/AC.249/1997/L.9/Rev.l of 18 December 1997, at pp. 4–16.

41. Interestingly, this approach reflects the approach adopted in Tadić (Appeal on Jurisdiction), discussed above.

42. Each of these provisions will be discussed further in the following sections.

43. Nicaragua v. USA (Merits), supra n. 19 and Tadić (Appeal on Jurisdiction), supra n. 8.

44. An exception is Art. 8(2)(e)(viii) (displacement of the civilian population), discussed below.

45. Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities: Art. 8(2)(e)(i). This provision is identical to Art. 8(2)(b)(i) (international armed conflict), which is based on Additional Protocol I, Arts. 51 and 85(3)(a), but is also supported by Additional Protocol II, Art. 13. See also infra n. 49 on the customary law status of this norm.

46. Intentionally directing attacks against buildings, material, medical units and transport, and personnel using the distinctive emblems of the Geneva Conventions in conformity with international law: Art. 8(2)(e)(ii), which is identical to Art. 8(2)(b)(xxiv). The international community attaches great value to respect for these distinctive emblems (for example, the red cross or the red crescent): see Geneva Convention I at Art. 38 and related provisions; Geneva Convention II at Art. 41 and related provisions; Additional Protocol I at Arts. 8(e), 15, 18, 38 and Annex I. The subject is addressed in Additional Protocol II at Art. 12 (in conjunction with Arts. 9–11).

47. Intentionally directing attacks against personnel, installations, material, units or vehicles involved in a humanitarian assistance or peacekeeping mission in accordance with the Charter of the United Nations, as long as they are entitled to the protection given to civilians or civilian objects under the law of armed conflict: Art. 8(2)(e)(iii). This provision was inspired by the Convention on the Safety of UN and Associated Personnel, but as noted infra it does not purport to expand customary law but rather provides a specific illustration of forbidden attacks on civilian targets.

48. Intentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives: Art. 8(2)(e)(iv) is drawn from Art 8(2)(b)(ix). This offence is based on Arts. 27 and 56 of the Hague Regulations, but also finds support in Arts. 53 and 85(4)(d) of Additional Protocol I, Art. 16 of Additional Protocol II, and the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict.

49. See for example Doswald-Beck, L., ‘The Value of the 1977 Geneva Protocols for the Protection of Civilians’, in Meyer, M., ed., Armed Conflict and the New Law (London, British Institute of International and Comparative Law 1989)Google Scholar, noting that the principle was established before World War II. This understanding is reflected in the official statements and resolutions of the General Assembly (and earlier, the Assembly of the League of Nations) which are helpfully canvassed in Tadić (Appeal on Jurisdiction), supra n. 8, at paras. 100–118.

50. As Art. 8(2)(e) does not specifically address attacks on civilian objects, it would appear to be necessary to rely on the prohibition in the general laws of armed conflict.

51. Pillaging a town or place, even when taken by assault: Art. 8(2)(e)(v), drawn from Art. 8(2)(b)(xvi), which is based on Article 28 of the Hague Regulations, but also finds support in Additional Protocol II, Art. 4(2)(g).

52. Killing or wounding treacherously a combatant adversary: Art. 8(2)(e)(iv), based on Article 23(b) of the Hague Regulations. The term combatant adversary is used instead of the term appearing in the Hague Regulations and Art. 8(2)(b) (individuals belonging to the hostile nation or army) to make it appropriate for internal armed conflict.

53. Declaring that no quarter will be given: Art. 8(2)(e)(x), drawn from Art. 8(2)(b)(xii), based on Art. 23(d) of the Hague Regulations, also finding support in Additional Protocol I, Art. 40 and Additional Protocol II, Art. 4(1).

54. Destroying or seizing the property of an adversary unless such destruction or seizure be imperatively demanded by the necessities of the conflict: Art. 8(2)(e)(xii). The terms ‘adversary’ and ‘conflict’ are used instead of ‘enemy’ and ‘war’ — the terms appearing in Art. 23(g) of the Hague Regulations and Art. 8(2)(b)(xiii) of the Statute — to make it appropriate to internal armed conflict.

55. Subjecting persons who are in the power of another party to the conflict to physical mutilation or to medical or scientific experiments of any kind which are neither justified by the medical, dental or hospital treatment of the person concerned nor carried out in his or her interest, and which cause death to or seriously endanger the health of such person or persons: Art. 8(2)(e)(xi), drawn from Art. 8(2)(b)(x). The language is based on Art. 13 of Geneva Convention III, but similar prohibitions may be found in Additional Protocol I, Art. 11 and Additional Protocol II, Art. 52(e). The term ‘another party to the conflict’ was adopted to make the provision appropriate for internal armed conflicts.

56. Committing rape, sexual slavery, enforced prostitution, forced pregnancy, as defined in Art. 7(2)(f), enforced sterilization, and any other form of sexual violence also constituting a serious violation of common Art. 3: Art. 8(2)(e)(vi), drawn from Art. 8(2)(b)(xxii).

57. Earlier instruments encompassed such conduct under rubric such as ‘outrages on personal dignity’ or ‘humiliating and degrading treatment’, which is seen today as trivializing the severity of such conduct. The language used in Art. 8(2)(e)(vi) is based on declarations such as the Platform for Action and the Beijing Declaration of the Fourth World Conference on Women (UN Sales No. E.DPI/1766 (1996)); see also Geneva Convention IV, Art. 27; Additional Protocol I, Art. 76; Additional Protocol II, Art. 4(2)(e). The definition of forced pregnancy was carefully negotiated in order to fully capture this particular harm which has been inflicted on women, while making clear that it does not give rise to a right to abortion or undermine national legislation on the subject. The crime consists of the unlawful confinement of a woman forcibly made pregnant, with the intent of affecting the ethnic composition of any population or carrying out other grave violations of international law.

58. This provision is similar to Art. 8(2)(b)(xxvi) with minor modifications to suit the context of internal armed conflict. Art. 8(2)(e)(vii) is in fact broader than 8(2)(b)(xxvi) in that it includes groups as well as forces to reflect the nature of internal armed conflicts. This is consistent with Art 4(3)(c) of Additional Protocol II. In addition, although in Art. 8(2)(b)(xxvi), the term ‘national’ modifies ‘armed forces’ to address the concerns of Arab states about the intifadah, this arrangement was not considered necessary in the context of internal armed conflict.

59. The United States initially had strong concerns about this provision, taking the view that it did not reflect customary international law and was more a human rights provision than a criminal law provision. The US concerns were addressed by adopting the terms ‘conscripting’ or ‘enlisting’ rather than ‘recruiting’. Some Arab states initially had concerns, which were overcome by including the term ‘national’ before ‘armed forces’ with respect to international armed conflicts, see ibid.

60. Raising the age limit to 18 under conventional law is currently being considered in the context of a new protocol to the Convention on the Rights of the Child.

61. Ordering the displacement of the civilian population for reasons related to the conflict, unless the security of the civilians involved or imperative military reasons so demand: Art 8(2)(e)(viii).

62. Indeed, Art. 1(2) of Additional Protocol II was based on an ICRC draft which was simply intended to clarify the concept of armed conflict. It was understood that such a requirement was also implicit in common Art. 3. See the Commentary of the ICRC, supra n. 12, at p. 1354; and Bothe et al., op. cit n. 14, at pp. 624–625.

63. Art. 1(1) of Additional Protocol II refers to armed conflicts which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol. Thus, there are a number of elements to be satisfied under Art. 1(1), which have always given rise to concerns that the provision is too restrictive: Bothe et al., op. cit. n. 14, at p. 625; ICRC, supra n. 12 at pp. 1349–1353; Levie, op. cit n. 14, at pp. 23–90.

64. This criterion was taken from ICTY jurisprudence, particularly Tadić (Appeal on Jurisdiction), supra n. 8.

65. UN Doc.A/CONF.183/C.l/L.59.

66. Tadić (Appeai on Jurisdiction), supra n. 8.

67. See the Commentary of the ICRC, supra n. 12 at p. 1363.

68. See for example the fourth preambular paragraph, and Arts. 1, 5(1), 8(1), 17(l)(d), 53(1) and 53(2) of the ICC Statute.

69. The United States was strongly committed to a threshold clause to ensure a focus on the most serious crimes and to avoid overburdening the Court with minor or isolated cases. Other delegations were concerned about introducing an additional hurdle. Agreement was reached on the basis of the compromise text of Art. 8(1). See von Hebel and Robinson, op. cit n. 7.

70. The definition of genocide in Article 6 mirrors the definition in the Genocide Convention, which is clearly recognized as customary international law.

71. The definition is derived from the relevant authorities, including international instruments and jurisprudence, and provides a rigorous test consistent with customary international law. See Robinson, D., ‘Defining Crimes Against Humanity at the Rome Conference’, 93 AJIL (1999) p. 43CrossRefGoogle Scholar.

72. Although most delegations felt that further elaboration of Elements was unnecessary, the United States in particular attached the utmost importance to Elements, arguing that these were necessary to provide the requisite certainty and clarity. In the interest of reaching general agreement, the majority was willing to agree to the future elaboration of Elements, but Elements purporting to be binding on the judges were clearly unacceptable to most delegations. To indicate the non-binding nature of the Elements, Art. 9 deliberately avoids the term ‘shall enter into force’ (a term used with respect to Rules of Procedure) and merely states that the Elements ‘shall assist the Court'. Art. 9(3) unequivocally requires mat the Elements of Crimes ‘shall be consistent with this Statute’, which must ultimately be determined by the Court.

73. The Security Council may refer a situation acting under Chapter VII of the UN Charter: Art. 13 of the ICC Statute. All member states of the UN, regardless of whether they have ratified the ICC Statute, are obliged to comply with decisions of the Security Council: Art. 25 of the Charter of the United Nations.

74. See Art 12 of the ICC Statute. The ILC draft Statute featured an opt-in regime, allowing a state party to choose the crimes for which it would accept the Court's jurisdiction. In order to enhance the effectiveness of the Court, this approach was rejected and an automatic jurisdiction regime was adopted, whereby states parties must accept the Court's jurisdiction over all of the crimes. However, as part of the final compromise, a transitional provision allows a one-time, opt-out, for a limited period of seven years, with respect to war crimes only (Art 124). This was a political concession made to those that preferred an opt-in regime. This provision was controversial, and it is not expected that many states will use this provision due to its political unpopularity. It might however have some utility in providing an opportunity for hesitant states to become familiar with the Court's operations before accepting jurisdiction over all crimes. States using the provision would remain bound by international humanitarian law and enforcement mechanisms, such as national prosecutions or Security Council action.

75. The reason behind this approach was that the Court should operate only for crimes that are of concern to the international community as a whole. This implied that the Court's jurisdiction should include only those crimes universally recognized as such. An additional pragmatic reason was that becoming a party to the Statute would not be contingent on first becoming a party to other instruments containing the substantive norms.

76. The inclusion of this crime in the context of internal armed conflicts did not appear to gamer sufficient support, notwithstanding that the prohibition is explicitly included in Art. 14 of Additional Protocol II.

77. This debate centered on whether a prohibition on the use of nuclear weapons was established in existing international law, and the political ramifications of including some weapons of mass destruction while others were excluded. For further discussion, see von Hebel and Robinson, op. cit. n. 7.

78. Art 10 of the ICC Statute, discussed above.