AUSTRALIAN RED CROSS RESEARCH PAPER:

PRINCIPLES OF INTERNATIONAL CRIMINAL LAW AND WAR CRIMES

What is genocide? Crimes against humanity? War crimes? Who can be charged with such
crimes? In what situations?

1 Introduction

The three main categories of crimes under international law are each defined in the Rome
Statute of the International Criminal Court.1 These definitions have undergone a number
of changes in response to various struggles and conflicts in the international arena. The
first formal codification of international crimes, some of which had been long recognised
as forming a part of customary international law, occurred in the Charter of the
International Military Tribunal (Nuremberg). A brief exploration of the development of
international criminal law post-Nuremberg is important to any study of the definitions and
elements of these crimes under international law.

2 Background

In the aftermath of World War II, in a bid to avoid repetition of the heinous crimes which
had been committed during the war, the Allied powers entered into the Agreement for the
Prosecution and Punishment of the Major War Criminals of the European Axis and
Charter of the International Military Tribunal.2 On 8 August 1945 the London Agreement
was signed by France, the United Kingdom, the United States and the Soviet Union. The
London Agreement established the International Military Tribunal for the trial of war
criminals whose offences had no particular geographical location3 and set out the terms of
the Charter of the International Military Tribunal.

The London Agreement was a manifestation of “a deeper consciousness of the need to

prosecute serious violations of the laws of war, with regard to the traditional responsibility
of States and to the personal responsibility of individuals”.4 Indicted before the Tribunal
and brought to trial were 22 individual German political and military leaders and key Nazi
players.5 The trial began on 20 November 1945 and the Tribunal delivered its judgment
on 1 October 1946. Three of the defendants were acquitted, twelve were sentenced to
death and the remaining seven were sentenced to life or long terms of imprisonment.6

1
Rome Stature of the International Criminal Court, opened for signature 17 July 1998, [2002] ATS 15 (entered
into force 1 July 2002) (hereafter referred to as ‘Rome Statute’)
2
Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, and Charter
of the International Military Tribunal, London , 8 August 1945 (hereafter referred to as the ‘London Agreement’
and ‘Nuremberg Charter’ respectively)
3
London Agreement, above n2 art 1
4
Edoardo Greppi, ‘The Evolution of Individual Criminal Responsibility Under International Law’, International
Review of the Red Cross No, 835 (1999) 531-553 (http://www.icrc.org/Web/siteeng0.nsf/html/57JQ2X)
5
Richard Overy, ‘Making Justice at Nuremberg, 1945 - 1946’,
(http://www.bbc.co.uk/history/worldwards/wwtwo/war_crimes_trials_print.html)
6
Richard Overy, above n5

8805882_2
 At about the same time the International Military Tribunal for the Far East (Tokyo) was
also established. The Tokyo trial began in 1946 and involved the trial of 29 Japanese
defendants before an international military tribunal7

The Nuremberg trials catalysed the evolution of international criminal law. On 11

December 1946 the United Nations General Assembly unanimously affirmed the
principles of international law enshrined in the Nuremberg Charter.8 As Greppi notes, the
General Assembly, in affirming the principles of law recognised by the Nuremberg
Charter and the judgment of the Tribunal, regarded the Tribunal as taking into account
already existing principles of international law.9 In 1950 the International Law
Commission (ILC) adopted a report on the ‘Principles of International Law Recognised in
the Charter of the Nuremberg Tribunal and in the Judgment of the Tribunal.10

One of the most significant developments of Nuremberg was the recognition of individual
criminal responsibility under international law.11 This led to a succession of treaties
criminalising particular conduct such as the Convention on the Prevention and
Punishment of the Crime of Genocide which opened for signature soon after
Nuremberg;12 the four 1949 Geneva Conventions13 which, reshaped the entire body of
treaty-based law dealing with the laws and customs of war; and the Convention on the
Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity
which declared in 1968 that no statutory limitation would apply to war crimes and crimes
against humanity.14

Another important stage in the evolution of the rules of international criminal law was
reached with the creation of the ad hoc international criminal tribunals for the prosecution
of crimes committed the former Yugoslavia and Rwanda. These ad hoc tribunals – the
International Criminal Tribunal for the former Yugoslavia (ICTY) and the International
Criminal Tribunal for Rwanda (ICTR) were established by the Security Council acting
under Chapter VII of the Charter of the United Nations.15

7
Tim McCormack and David Blumenthal, ‘Sixty Years on From Nuremberg’, Lawyers’ Weekly, 21 October
2005, 14-15 (http://www.lawyersweekly.com.au/articles/D4/0C0373D4.asp?Type=56&Category=841)
8
Affirmation of the Principles of International Law Recognised by the Charter of the Nuremberg Tribunal,
Resolution 95(1) of the United Nations General Assembly, 11 Decmber 1946
9
Edoardo Greppi, above n4
10
‘Principles of International Law Recognised in the Charter of the Nuremberg Tribunal and in the Judgment of
the Tribunal’, Report of the International Law Commission Covering its Second Session, 5 June 1950, Document
A/1316
11
Nuremberg Charter, above n2 art 6
12
Convention on the Prevention and Punishment of the Crime of Genocide, opened for signature 9 December
1948 (entered into force 12 January 1951) (hereafter referred to as ‘Genocide Convention’)
13
Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the
Field, opened for signature 12 August 1949, 75 UNTS 31 (entered into force 21 October 1950) (hereafter
referred to as ‘Geneva Convention I’); Geneva Convention for the Amelioration of the Condition of the
Wounded, Sick and shipwrecked Members of Armed Forces at Sea, opened for signature 12 August 1949, 75
UNTS 85 (entered into force 21 October 1950) (hereafter referred to as ‘Geneva Convention II’); Geneva
Convention Relative to the Treatment of Prisoners of War, opened for signature 12 August 1949, 75 UNTS 135
(entered into force 21 October 1950) (hereafter referred to as ‘Geneva Convention III’); Geneva Convention
Relative to the Protection of Civilian Persons in Time of War, opened for signature 12 August 1949, 75 UNTS
85 (entered into force 21 October 1950) (hereafter referred to as ‘Geneva Convention IV’). The four conventions
are collectively referred to as the ‘1949 Geneva Conventions’.
14
Convention on the Non-Applicability of Statutory limitations to War Crimes and Crimes Against Humanity, 26
November 1968
15
Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of
International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991 (hereafter

8805882_2 2
 One of the most important developments in terms of the definitions of crimes under
international law was the establishment of the International Criminal Court (ICC) under
the Rome Statute.16 The jurisdiction of the ICC is “limited to the most serious crimes of
concern to the international community as a whole”.17 These are:

(a) the crime of genocide;

(b) crimes against humanity;

(c) war crimes; and

(d) the crime of aggression.18

The crime of aggression awaits definition,19 hence it is on the first three categories of
crimes that this paper will focus. This paper aims to explore the definitions of these three
categories of crimes under international law, following their development in light of
events unfolding in the international arena.

3 Definitions

3.1 Genocide

Genocide is defined in the Rome Statute as a specific act “committed with intent to
destroy, in whole or in part, a national, ethnical, religious or racial group, as such”.20 Acts
which constitute genocide when committed with the requisite intention are:

(a) killing members of the group;

(b) causing serious bodily or mental harm to members of the group;

(c) deliberately inflicting on the group conditions of life calculated to bring about its
physical destruction in whole or in part;

(d) imposing measures intended to prevent births within the group;

(e) forcibly transferring children of the group to another group.21

The definition of genocide in the Rome Statute is identical to that in the Genocide
Convention.22 The decision to replicate the definition of genocide is a testament to
international recognition of the prohibition of genocide as a norm of jus cogens.23

referred to as ‘Statute of the ICTY’); Statute of the International Criminal Tribunal for the Prosecution of
Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed
in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and Other Such Violations
Committed in the Territory of Neighbouring States, between 1 January 1994 and 31 December 1994, (hereafter
referred to as ‘Statute of the ICTR’)
16
Rome Statute, above n1 art 1
17
Rome Statute, above n1 art 5
18
Rome Statute, above n1 art (1)
19
Rome Statute, above n1 art 5(2)
20
Rome Statute, above n1 art 6
21
Rome Statute, above n1 art 6
22
Genocide Convention, above n12 art 2

8805882_2 3
 The Genocide Convention states that various degrees of involvement with the above acts
– genocide, conspiracy to commit genocide, direct and public incitement to commit
genocide, attempt to commit genocide and complicity in genocide – shall also be
punishable.24 This definition of genocide also appears in the Statute of the ICTY and the
Statute of the ICTR.25

Pursuant to the Rome Statute, the ICC will be assisted in its interpretation and application
of the definition of genocide by the document entitled ‘Elements of Crimes’ which
appears in the repository of basic ICC documents.26 This document sets out the elements
of the crime of genocide in each of the manifestations envisaged by the definition in the
Rome Statute.27

What is essential for genocide to be proved is an “intent to destroy in whole or in part, a

national, ethnical, racial or religious group as such”. This gives rise to several elements
which must be satisfied if the crime is to be made out. Decisions of the ICTY and ICTR
provide illuminating explanations on the elements of the crime of genocide.

(a) Intent

Intent may be inferred, in the absence of direct and explicit evidence, from the
circumstances and facts of the case such as “the general context, the perpetration
of other culpable acts systematically directed against the same group, the scale of
atrocities committed, the systematic targeting of victims on account of their
membership of a particular group, or the repetition of destructive and
discriminatory acts”.28 The ICTY has held that while “the existence of a plan or
policy is not a legal ingredient of the crime”, such existence of a plan or policy
may be an important factor in proving specific genocidal intent.29 The ICTR has
held that such a plan would be “strong evidence” of genocidal intent.30

(b) Groups

The victims must be targeted by reason of their membership in a group - as the

trial chamber of the ICTY states, “[t]he intent to destroy a group as such, in whole
or in part, presupposes that the victims were chosen by reason of their
membership in the group whose destruction was sought. Mere knowledge of the
victims’ membership in a distinct group on the part of the perpetrators is not
sufficient to establish an intention to destroy the group as such”.31 It is the group,
as such, that must be the target of genocide and not one or several individuals.32

23
Timothy McCormack and Sue Robertson, ‘Jurisdictional Aspects of the Rome Statute for the New Intentional
Criminal Court (1999) 23 Melbourne University Law Review 635 at 647
24
Genocide Convention, above n12 art 3
25
Statute of the ICTY, above n15 art 4; Statute of the ICTR , above n15 art 2
26
Rome Statute, above n1 art 9
27
‘Elements of Crimes’, art 6
28
Prosecutor v Jelisic, Case No. IT-95-10 (Appeals Chamber), 5 July 2001(hereafter referred to as ‘Jelisic Case
(AC)’) at [47]
29
Jelisic Case (AC), above n28 at [48]
30
Prosecutor v. Kayishema and Ruzindana, Case No. ICTR-95-1-T (Trial Chamber), 21 May 1999 (hereafter
referred to as ‘Kayishema and Ruzindana Case (TC)’ at [94, 276]
31
Prosecutor v. Krstic, Case No. IT-98-33 (Trial Chamber), 2 August 2001 (hereafter referred to as ‘Krstic Case
(TC)’) at [561]
32
Krstic Case (TC), above n31 at [551]

8805882_2 4
 It is not necessary that the group in its entirety be actually destroyed - once one of the acts
enumerated is committed with the specific intent to destroy ‘in whole or in part’ a
national, ethnical, racial or religious group, genocide is taken to have occurred.33

It notable that the definition of genocide under international law does not protect all
human groups - “[i]ts application is confined to national, ethnical, racial or religious
groups”.34 This means that it does not protect political35 or social groups. McCormack and
Robertson note the inconsistency inherent in a definition of genocide which protects
ethnic and racial groups such as the Bosnian Muslims and Rwandan Tutsi but not the
political opponents of the Khemer Rouge exterminated on a large scale in Cambodia
between 1975 and 1978.36 It has also been established that “an enterprise attacking only
the cultural or sociological characteristics of a human group in order to annihilate these
elements which give to that group its own identity distinct from the rest of the community
would not fall under the definition of genocide”.37

3.2 Crimes against humanity

Crimes against humanity are defined in the Rome Statute as any of the following acts
“when committed as part of a widespread or systematic attack directed against any
civilian population, with knowledge of the attack”:

(a) murder;

(b) extermination;

(c) enslavement;

(d) deportation or forcible transfer of population;

(e) imprisonment or other sever deprivation of physical liberty in violation of

fundamental rules of international law;

(f) torture;

(g) rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or
any other form of sexual violence of comparable gravity;

(h) persecution against any identifiable group or collectivity on political, racial, national,
ethnic, cultural, religious, gender… or other grounds that are universally recognised as
impermissible under international law, in connection with any act referred to in this
paragraph or any crime within the jurisdiction of the Court;

(i) enforced disappearance of persons;

(j) the crime of apartheid;

33
Prosecutor v. Akayesu, Case No. ICTR-96-4-T (Trial Chamber), 2 September 1998 (hereafter referred to as
‘Akayesu Case’ (TC)’) at [497]
34
Krstic Case (TC), above n31 at [554]
35
Prosecutor v. Jelisic, Case No. IT-95-10 (Trial Chamber), 14 December 1999 (hereafter referred to as ‘Jelisic
Case (TC)’) at [69]
36
Timothy McCormack and Sue Robertson, above n23 at 649
37
Krstic Case (TC), above n31 at [580]

8805882_2 5
 (k) other inhumane acts of a similar character intentionally causing great suffering, or
serious injury to body or to mental or physical health.38

The first formal codification of crimes against humanity occurred in the Nuremberg
Charter where it was stated that “murder, extermination, enslavement, deportation, and
other inhumane acts committed against any civilian population, before or during the war,
or persecutions on political, racial or religious grounds in execution of or in connection
with any crime within the jurisdiction of the Tribunal, whether or not in violation of the
domestic law of the country where perpetrated” would be crimes within the jurisdiction of
the International Military Tribunal at Nuremberg.39 It is interesting to note the shorter
catalogue of crimes which came within the ambit of ‘crimes against humanity’ at the time
of the Nuremberg trials and the absence of the requirement that those acts be committed
as part of a widespread or systematic attack on a civilian population.

The statutes of the ICTY and ICTR contain a longer list of crimes and adds the acts of
imprisonment, torture, rape and persecutions on political, racial and religious grounds to
that in the Nuremberg Charter. Following the systematic massacre of Tutsis by extremist
Hutu militias in Rwanda and the rampant ethnic cleansing of Bosnian Muslims in Bosnia-
Herzegovina, it is not surprising that it is in the statutes governing the ICTY and ICTR
that the proviso that these acts must be committed as “part of a widespread or systematic
attack against any civilian population on national, political, ethnic, racial or religious
grounds”,40 for them to constitute crimes against humanity, first appears. This
requirement is mirrored in the Rome Statute and hence the ICC’s jurisdiction is confined
to “offences carried out systematically rather than on the spur of the moment, and
pursuant to a policy conceived either by a state instrumentality (such as the police or the
army) or by an organised rebel force or terrorist network, as distinct from a criminal
gang”.41

(a) Widespread or systemic

The ICTR has commented that “A crime against humanity must have been
committed as part of a widespread or systematic attack against any civilian
population on discriminatory grounds. Although the act need not be committed at
the same time and place as the attack or share all of the features of the attack, it
must, by its characteristics, aims, nature, or consequence objectively form part of
the discriminatory attack”.42

(b) Civilian population

The attack must be directed against a civilian population. The ICTY has held that
the term ‘civilian’ will be construed liberally:

[i]t would seem that a wide definition of ‘civilian’ and ‘population’ is

intended. This is warranted first of all by the object and purpose of the
general principles and rules of humanitarian law, in particular by the
rules prohibiting crimes against humanity. The latter are intended to

38
Rome Statute, above n1 art 7 (1)
39
Nuremberg Charter, above n2 art 6(c)
40
Statue of the ICTY , above n15 art 5; Statute of the ICTR, above n15 art 3
41
Geoffrey Robertson QC, Crimes Against Humanity: The Struggle for Global Justice, (2006, 3rd edn), 430
42
Prosecutor v. Semanza, Case No. ICTR-97-20 (Trial Chamber), 15 May 2003 (hereafter referred to as
‘Semanza Case (TC)’) at [326]

8805882_2 6
 safeguard basic human values by banning atrocities directed against
human dignity. [A] broad interpretation should . . . be placed on the
word ‘civilians,’ the more so because the limitation [safeguarding
civilians and not combatants] in Article 5 constitutes a departure from
customary international law.43

Both the ICTY and the ICTR have established that the presence of non-civilians
does not strip a population of its civilian character.44

(c) Sexual violence as a crime against humanity

It is to be noted that it is in the statutes of the ad hoc tribunals that rape is included
as a crime against humanity for the first time.45 The ICTR has been key in
developing the definition of rape, holding in the Akayesu Case that:

[R]ape is a form of aggression and . . . the central elements of the crime

of rape cannot be captured in a mechanical description of object and
body parts . . . . Like torture, rape is used for such purposes as
intimidation, degradation, humiliation, discrimination, punishment,
control or destruction of a person. Like torture, rape is a violation of
personal dignity. . . . The Chamber defines rape as a physical invasion of
a sexual nature, committed on a person under circumstances which are
coercive.46

The Rome Statute includes other forms of sexual violence under the category of
crimes against humanity. In Akayesu, the ICTR noted that:

Sexual violence which includes rape, [is] any act of a sexual nature which
is committed on a person under circumstances which are coercive. Sexual
violence is not limited to physical invasion of the human body and may
include acts which do not involve penetration or even physical contact.47

The ICTR cited forced public nudity as an example of sexual violence, stating
that:

[C]oercive circumstances need not be evidenced by a show of physical

force. Threats, intimidation, extortion and other forms of duress which
prey on fear or desperation may constitute coercion, and coercion may be
inherent in certain circumstances…48

3.3 War Crimes

The Nuremberg Charter defined war crimes as “violations of the laws or customs of war”
which included “murder, ill-treatment or deportation to slave labour or for any other
purpose of civilian population of or in occupied territory, murder or ill-treatment of

43
Prosecutor v. Kupreskic et al., Case No. IT-95-16 (Trial Chamber), 14 January 2000 (hereafter referred to as
‘Kupreskic Case’ (TC)’) at [547]-[549]
44
Kupreskic Case (TC), above n43 at [549]; Akayesu Case (TC), above n32 at [582]
45
Statute of the ICTY, above n15 art 5(g); Statute of the ICTR, above n15 art 3(g)
46
Akayesu Case (TC), above n33 at [596]-[597]
47
Akayesu Case (TC), above n33 at [686]
48
Akayesu Case (TC), above n33 at [686]

8805882_2 7
 prisoners of war or persons on the seas, killing of hostages, plunder of public or private
property, wanton destruction of cities, towns or villages, or devastation not justified by
military necessity”.49

The definition of war crimes in the Rome Statute includes grave breaches of the Geneva
Conventions, “namely, any of the following acts against persons or property protected
under the provisions of the relevant Geneva Convention:

(i) wilful killing

(ii) torture or inhuman treatment, including biological experiments;

(iii) wilfully causing great suffering, or serious injury to body or

health;

(iv) extensive destruction and appropriation of property, not justified

by military necessity and carried out unlawfully and wantonly;

(v) compelling a prisoner of war or other protected person to serve in

the forces of a hostile power;

(vi) wilfully depriving a prisoner of war or other protected person of

the rights of fair and regular trial;

(vii) unlawful deportation or transfer or unlawful confinement;

(viii) taking of hostages.50

The raft of provisions governing grave breaches of the Geneva Conventions imposes on
contracting parties the obligation of prosecution or extradition of offenders who commit
these criminal acts.51

Besides the above, the term ‘war crimes’ also includes:

• serious violations of the laws and customs applicable in international armed

conflict which are any of 26 named acts in the Rome Statute.52

• serious violations of article 3 common to the four Geneva Conventions of 12

August 1949, “namely, any of the following acts committed against persons
taking no active part in the hostilities…”:

(i) violence to life and person, in particular murder of all kinds, mutilation,
cruel treatment and torture;

(ii) committing outrages upon personal dignity, in particular humiliating and

degrading treatment;

(iii) taking of hostages;

49
Nuremberg Charter, above n2 art 6(b)
50
Rome Statute, above n1 art 8(2)(a)
51
Geneva Convention I, above n13 arts 49, 50; Geneva Convention II, above n13 arts 50-1; Geneva Convention
III, above n13 arts 129-30; Geneva Convention IV, above n13 arts 146-7.
52
Rome Statute, above n1 art 8(2)(b)

8805882_2 8
 (iv) the passing of sentences and the carrying out of executions without
previous judgment pronounced by a regularly constituted court, affording
all judicial guarantees which are generally recognisable as
indispensable.53

• other serious violations of the laws and customs applicable in armed conflicts
not of an international character, within the established framework of
international law, which may be any of 12 enumerated acts in the Rome
Statute.54

McCormack and Robertson point out that “one of the most disappointing aspects” of this
definition of war crimes is its treatment of the use of prohibited weapons.55 It is notable
that the list of prohibited weapons only includes poison and poisonous weapons,
asphyxiating, poisonous and other gases, and expanding bullets – and does not extend to
nuclear, biological, chemical and blinding laser weapons and anti-personnel landmines
which are the cause of so much harm in conflicts today and which are the subject of
comprehensive multilateral agreements.56

4 Who can be charged with such crimes?

4.1 Individual Criminal Responsibility

(a) individuals

One of the most significant consequences of World War II and the subsequent
Nuremberg and Tokyo trials was the recognition of individual human beings as
being within the province of international law. Before 1945, only states had
standing before international courts while individuals were “ignored”.57 It was
with the Nuremberg Charter that the concept of individual responsibility for
crimes under international law was formally recognised. Immediately preceding
the definitions of international crimes in the Nuremberg Charter is the statement
that “there shall be individual responsibility” for such crimes.58 The International
Military Tribunal declared at the Nuremberg trial:

That international law imposes duties and liabilities upon individuals as

well as upon states has long been recognised… Crimes against
international law are committed by men, not by abstract entities, and only
by punishing individuals who commit such crimes can the provisions of
international law be enforced. …

The principle of international law, which under certain circumstances,

protects the representatives of a State, cannot be applied to acts which
are condemned as criminal by international law. The authors of these acts

53
Rome Statute, above n1, art 8(2)(c)
54
Rome Statute, above n1 art 8(2)(e)
55
Timothy McCormack and Sue Robertson, above n23 at 664
56
Timothy McCormack and Sue Robertson, above n23 at 664-665
57
Richard J. Goldstone, ‘The Role of International Criminal Law in the Prosecution of War Crimes’ (2002)
Temple University International and Comparative Law Journal 371 at 372
58
Nuremberg Charter, above n2 art 6

8805882_2 9
 cannot shelter themselves behind their official position in order to be
freed from punishment in appropriate proceedings….59

The Rome Statute gives the ICC jurisdiction over natural persons in respect of the
international crimes, stating that “[a] person who commits a crime within the jurisdiction
of the Court shall be individually responsible and liable for punishment in accordance
with this Statute”.60 Under the Rome Statute, a person will be individually criminally
responsible if:

(a) they commit a crime as an individual, jointly with another person or through
another person;

(b) they order, solicit or induce the commission of a crime;

(c) they aid, abet or otherwise assist in the commission of a crime including by
providing the means to commit a crime;

(d) they contribute in any other way to the commission or attempted commission of a
crime;

(e) in the case of genocide, if they directly and publicly incite others to commit
genocide;

(f) they attempt to commit a crime by taking action that commences its execution by
means of a substantial step, even if the actual crime does not occur because of
circumstances independent of their intentions.61

The Rome Statute goes on to abrogate any immunities attaching to the official capacity of
a person,62 declaring that the Statute “shall apply equally to all persons without any
distinction based on official capacity. In particular, official capacity as a Head of State or
Government, a member of a Government or parliament, an elected representative or a
government official shall in no case exempt a person from criminal responsibility”.63 The
Statute also states that a person’s official capacity, in and of itself, will not constitute a
ground for reduction of sentence.64

(b) Command responsibility

The Rome Statute also provides for command responsibility, providing that a military
commander will be criminally responsible for crimes committed by forces under his or
her effective control if they knew, or should have known in the circumstances, of the
unlawful behaviour of subordinates but failed to take reasonable measures to prevent or
punish them.65 In addition, a superior will be criminally responsible for international
crimes committed by subordinates under his or her effective authority and control, as a
result of his or her failure to exercise control properly over his or her subordinates where
the superior knew or consciously disregarded information indicating that the subordinates

59
‘International Military Tribunal (Nuremberg), Judgments and Sentences, 1 October 1946’ (1947) 41 American
Journal of International Law 172 at 220 - 221
60
Rome Statute, above n1 art 25(2)
61
Rome Statute, above n1 art 25(3)
62
Rome Statute above n1 art 27(2)
63
Rome Statute, above n1 art 27(1)
64
Rome Statute, above n1 art 27(1)
65
Rome Statute, above n1 art 28(a)

8805882_2 10
 were committing or about to commit the crimes, the crimes concerned activities which
were within the effective responsibility and control of the superior, and the superior failed
to take all reasonable means to prevent the commission of the crimes.66 It is on the
principles of individual responsibility of persons with authority, and command
responsibility that the ICTY indicted Radovan Karadzic, president of the Bosnian Serb
administration and architect of its ethnic policies and Ratko Mladic, commander of its
army.67

The Rome Statute, following the Nuremberg Charter,68 establishes that an international
crime which has been committed by a person in pursuance of an order of a Government or
of a superior shall not relieve that person of criminal responsibility.69 There are a few
exceptions to this rule - a person committing a crime pursuant to an order will not be held
criminally responsible where the person was under a legal obligation to obey the
Government or superior in question, the person did not know that the order was unlawful
and the order was not manifestly unlawful.70 The Rome Statute is careful to state that for
the purposes of that article, orders to commit genocide or crimes against humanity are
manifestly unlawful.71

(c) Minors

The Rome Statute provides that the ICC shall have no jurisdiction over any person who
was under the age of 18 at the time of the alleged commission of a crime. Geoffrey
Robertson QC describes this exception to individual criminal responsibility for
international crimes as “questionable”, arguing that such atrocities have been committed
by ‘boy soldiers’ in the past, particularly in Sierra Leone.72 Robertson argues that the
young age of a perpetrator should be used to mitigate punishment and not to exonerate
them from their crimes.73 He also points out that while the Rome Statute establishes the
enlisting of persons under 15 to take active part in hostilities as a war crime, those
between the ages of 16 and 17 who are old enough to participate in war should not be left
immune from prosecution.74

4.2 State Responsibility

While the development of individual criminal responsibility is of extreme importance in

the context of international crimes, the responsibility of States under international law
must not be forgotten. The Rome Statute declares that “[n]o provision in this Statute
relating to individual criminal responsibility shall affect the responsibility of States under
international law”.75

66
Rome Statute, above n1 art 28(b)
67
Prosecutor v Ratko Mladic, Amended Indictment, Case No It-95-5/18-1, 11 October 2002 at [16]-[19] and
[27]-[28]; Prosecutor v Radovan Karadzic, Amended Indictment, Case No IT-09-5/18 30 May 2000 at [960]-
[66]
68
Nuremberg Charter, above n2 art 8
69
Rome Statute, above n1 art 33(1)
70
Rome Statute, above n1 art 33(1)
71
Rome Statute, above n1 art 33 (2)
72
Geoffrey Robertson QC, above n41 at 440
73
Geoffrey Robertson QC, above n41 at 440
74
Geoffrey Robertson QC, above n41 at 440
75
Rome Statute, above n1 art 25(4)

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 In a recent case which put a State on trial before the International Court of Justice (ICJ)
for genocide for the first time, it was found that a State can be held responsible for
genocide or complicity in genocide.76 The ICJ found that the obligation on States to
prevent genocide under the Genocide Convention necessarily implies a prohibition against
States themselves committing genocide:

Such a prohibition follows, first, from the fact that the Article [1] categorizes
genocide as “a crime under international law”: by agreeing to such a
categorization, the States parties must logically be undertaking not to commit the
act so described. Secondly, it follows from the expressly stated obligation to
prevent the commission of acts of genocide. That obligation requires the States
parties, inter alia, to employ the means at their disposal, in circumstances to be
described more specifically later in this Judgment, to prevent persons or groups
not directly under their authority from committing an act of genocide or any of
the other acts mentioned in Article III. It would be paradoxical if States were thus
under an obligation to prevent, so far as within their power, commission of
genocide by persons over whom they have a certain influence, but were not
forbidden to commit such acts through their own organs, or persons over whom
they have such firm control that their conduct is attributable to the State
concerned under international law. In short, the obligation to prevent genocide
necessarily implies the prohibition of the commission of genocide. 77

The ICJ found that if an organ of the State or a person or group whose acts are attributable
to the State commits an act of genocide, this triggers the international responsibility of the
State.78 The ICJ also held, interestingly, that the Court may make a finding of genocide by
a State in the absence of a prior conviction of an individual for genocide by a competent
court.79

In this case Serbia was found not guilty of genocide as it could not be said that the acts of
genocide - the massacre of about 8000 Bosnian Muslims in Srebrenica in 1995 - were
committed by people or groups ranking as organs of Serbia.80 Crucial to the Court’s
decision was its inability to find that Serbia had the requisite intent to commit genocide.
This was because the Court required proof of specific express instructions from Belgrade
for committing genocide against the Muslim population of Bosnia. The Court was unable
to satisfy itself that this proof had been established, therefore it did not hold that Serbia
had the requisite intent for genocide.

However it was held that Serbia was guilty of violating its obligation to prevent genocide
under the Genocide Convention as it had not taken any initiatives to prevent the atrocities
which were committed.81 In response to Serbia’s claim that it was powerless to do
anything to prevent the massacres, which was at odds with Serbia’s known influence over
the Bosnian Serb Army, the ICJ stated:

76
Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of
Genocide (Bosnia and Herzegovina v Serbia and Montenegro) 26 February 2007 (http://www.icj-
cij.org/cijwww/cdocket/cbhy/cbhyjudgments/cbhy_cjudgment_20070226/bhy_judgment.pdf ) (hereafter referred
to as ‘Bosnia and Herzegovina v Serbia and Montenegro’) at [169] and [174]
77
Bosnia and Herzegovina v Serbia and Montenegro, above n79at [166]
78
Bosnia and Herzegovina v Serbia and Montenegro, above n79 at [179]
79
Bosnia and Herzegovina v Serbia and Montenegro, above n79 at [182]
80
Bosnia and Herzegovina v Serbia and Montenegro, above n79 at [413]-[415]
81
Bosnia and Herzegovina v Serbia and Montenegro, above n79 at [438]

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 for a State to be held responsible for breaching its obligation of prevention, it
does not need to be proven that the State concerned definitely had the power to
prevent the genocide; it is sufficient that it had the means to do so and that it
manifestly refrained from using them.82

5. In what situations?

The question of when someone can be charged with genocide, crimes against humanity
and war crimes encompasses two distinct issues: whether there needs to be a connection
with an armed conflict for acts constituting these crimes to be held as such and whether
these crimes can be committed in the context of both international and non-international
armed conflict. It is important to note that the Nuremberg Charter and Geneva
Conventions relate primarily to international armed conflicts.

5.1 Genocide

The Rome Statute does not specify whether the crime can be committed where there is no
connection with war. However, according to the Genocide Convention, genocide is a
crime under international law “whether committed in time of peace or in time of war”.83 It
is therefore established that there is no need for a connection with armed conflict for the
crime of genocide to be committed. In fact, the Genocide Convention has been so widely
ratified that the prohibition against genocide at all times can be considered a rule of
modern customary international law, binding on all states and requiring them to prosecute
acts of genocide.84

5.2 Crimes against humanity

The International Military Tribunal at Nuremberg held during the Nuremberg trials that
“[t]o constitute crimes against humanity, the acts relied on before the outbreak of war
must have been in execution of, or in connection with, any crime within the jurisdiction of
the Tribunal”, namely war crimes or crimes against peace.85 This can be seen as
effectively requiring a nexus to war. However, it has been argued that this requirement
should be viewed as a jurisdictional limitation of the Nuremberg Tribunal rather than part
of the definition of crimes against humanity.86

It was recognised in Prosecutor v Tadic that the distinction between international and
internal armed conflict has become increasingly blurred and that as such, the rules of
customary international law have evolved to regulate internal armed conflict.87 With the
formal redefinition of crimes against humanity in the Rome Statute, the scope of the
definition has been broadened by the removal of the requirement of a nexus between
crimes against humanity and an armed conflict. The majority of state signatories
recognised that “such crimes ought to be characterised by the nature of the offence,
irrespective of the particular context in which the crime occurs”.88

5.3 War crimes

82
Bosnia and Herzegovina v Serbia and Montenegro, above n79 at [438]
83
Genocide Convention, above n12 art 1
84
Geoffrey Robertson QC, above n41 at 263
85
International military tribunal Nuremberg p FIND
86
Diane Orentlicher, ‘Yugoslav War Crimes Tribunal’ (1993) 1 ASIL Focus 3
87
Prosecutor v Tadic Case No IT-94-1-AR72 (Appeals Chamber), 2 October 1995
88
Tim McCormack and Dr David Blumenthal, above n7

8805882_2 13
 War crimes, as defined in the Rome Statute¸ are divided into four categories according to
their application in international or non-international armed conflict: 89

(a) Article 8(2)(a): grave breaches of the 1949 Geneva Conventions against persons or
property protected under the provisions of the relevant Geneva Convention (international
armed conflict);

It is to be noted that in the Geneva Conventions¸ “grave breaches” are described

as “wilful killing, torture or inhumane treatment, including biological
experiments, wilfully causing great suffering or serious injury to body or health,
and extensive destruction an appropriation of property, not justified by military
necessity”.90 As Benison notes, the gravity of the breaches “refers not to the
atrociousness of an action… but to the fact that it is excessive given the
circumstances”.91 This requires the court to balance every crime against the
military need to commit it.92 Benison argues that the inclusion of the concept of
military necessity in the definition of war crimes (and not exclusively as a defence
to crimes) the question of military necessity becomes a threshold question and one
in which it is not clear who bears the burden of proof.93

(b) Article 8(2)(b): other serious violations of laws and customs applicable in international
armed conflict;

(c) Article 8(2)(c): serious violations of art 3 common to the 1949 Geneva Conventions (non-
international armed conflict);

This article extends the jurisdiction of the ICC to internal armed conflicts in
relation to serious violations of common art 3 of the Geneva Conventions which
protects “persons taking no active part in hostilities, including members of the
armed forces who have laid down arms or are placed hors de combat by sickness,
wounds, detention, or any other cause”.94

(d) Article 8(2)(e): other serious violations of the laws and customs applicable in armed
conflicts not of an international character.

This article adds to the jurisdiction of the ICC in respect of internal armed
conflicts, twelve of the war crimes listed in Article 8(2)(b) - e.g. use of child
soldiers, engaging in systematic sexual violence, attacking UN peacekeepers or
historic, cultural and humanitarian targets, pillaging a town or place, ordering the
displacement of the civilian population for reasons related to the conflict.

As Willmott notes, the Elements of Crimes document shows a total of 46 separate war crimes
relating to international armed conflict and only 25 for internal armed conflict95. This discrepancy
is highlighted when it is considered that the use of certain weapons constitutes a war crime when
committed in the context of an international armed conflict but not when committed as part of an

89
Deidre Willmott, ‘Removing the Distinction Between International and Non-international Armed Conflict in
the Rome Statute of the International Criminal Court’ (2004) 5 Melbourne Journal of International Law 196
90
Geneva Convention I, above n10 art 51
91
Audrey I. Benison, ‘War Crimes: A Human Rights Approach to a Humanitarian Law Problem at the
International Criminal Court’, (1999 - 2000) 88 Georgetown Law Journal 141 at 161
92
Audrey I. Benison, above n94 at 161
93
Audrey I. Benison, above n94 at 163
94
Geneva Conventions, above n10 common art 3(1)
95
Deidre Willmott, above n92 at 199

8805882_2 14
internal armed conflict.96 It is also notable that “non-international armed conflict” clearly excludes
“situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of
violence or other acts of a similar nature”.97 As Geoffrey Robertson QC notes, crimes committed
in such situations of internal disturbances would have to qualify as genocide or crimes against
humanity if the ICC is to have jurisdiction to punish them.98 The threshold test for what
constitutes an internal armed conflict will require the ICC to answer the preliminary question of
“whether the conflict in question rises to the level of non-international conflict covered by the
Rome Statute, or whether it is a mere internal disturbance”.99 It should also be noted that the
articles enumerating acts which will be considered war crimes when committed in the context of
non-international conflict do not “affect the responsibility of a Government to maintain or re-
establish law and order in the State or to defend the unity and territorial integrity of the State, by
all legitimate means”.100 Geoffrey Robertson QC considers that this “provides a wide, albeit
question-begging, exculpation for governments fighting sectionist movements and other
politically motivated armed groups”.101

(6) Conclusion

The Rome Statute, with its codification of the most serious of international crimes, is a testament
to how far international criminal law has developed post-Nuremberg. However, there is still a
distance to go, with the crime of aggression yet to be defined and the distinction between
international and internal armed conflict continuing to haunt the definition of war crimes. The
Rome Statute Review Conference scheduled for 2009 may provide a forum for revisitation of
these issues and it will be interesting to note the outcomes.

96
Timothy McCormack and Sue Robertson, above n23 at 666
97
Rome Statute, above n1 art 8(2)(d) and art 8(2)(f)
98
Geoffrey Robertson QC, above n41 at 437
99
Audrey I. Benison, above n94 at 163
100
Rome Statute, above n1 art 8 (3)
101
Geoffrey Robertson QC, above n41 at 437

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